4–9–03 Wednesday Vol. 68 No. 68 Apr. 9, 2003 Pages 17253–17528

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1 II Federal Register / Vol. 68, No. 68 / Wednesday, April 9, 2003

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2 III

Contents Federal Register Vol. 68, No. 68

Wednesday, April 9, 2003

Agricultural Marketing Service NOTICES RULES Agency information collection activities; proposals, Nectarines and peaches grown in— submissions, and approvals, 17336–17338 California, 17257–17267 Prunes (dried) produced in— Defense Department California, 17267–17272 See Navy Department PROPOSED RULES NOTICES Onions (sweet) grown in— Agency information collection activities; proposals, Washington and Oregon, 17325–17327 submissions, and approvals, 17356–17357 Health Information Privacy Program: Agriculture Department Protected health information; appropriate uses and See Agricultural Marketing Service disclosures, 17357–17358 See Animal and Plant Health Inspection Service Privacy Act: See Commodity Credit Corporation Systems of records, 17358–17359 See Farm Service Agency See Forest Service Drug Enforcement Administration See National Agricultural Statistics Service NOTICES See Rural Business-Cooperative Service Applications, hearings, determinations, etc.: See Rural Housing Service AccuStandard, Inc., 17402 See Rural Utilities Service Boehringer Ingelheim Chemicals, Inc., 17402–17403 Church of the Living Tree, 17403–17405 Animal and Plant Health Inspection Service Dade Behring Inc., 17405–17406 Harris, James, E., P.A., 17406 PROPOSED RULES Island Wholesale, Inc., 17406–17407 Viruses, serums, toxins, etc.: Penick Corp.; correction, 17407–17408 Veterinary biological products; actions by licensees and Siegfried (USA), Inc., 17408 permitees to stop preparation, distribution, sale, etc., 17327–17330 Economic Development Administration NOTICES Meetings: NOTICES National Wildlife Services Advisory Committee, 17335 Grants and cooperative agreements; availability, etc.: Viruses, serums, toxins, etc.: Economic development assistance programs, 17519– Patent term extension; regulatory review period 17528 determinations— Education Department Poulvac ST Vaccine, 17335–17336 NOTICES Agency information collection activities; proposals, Census Bureau submissions, and approvals, 17359–17361 NOTICES Meetings: Employee Benefits Security Administration Census Advisory Committees, 17342 RULES Employee Retirement Income Security Act: Coast Guard Civil penalties; assessment, 17502–17506 RULES Administrative hearing procedures, 17505–17511 Ports and waterways safety: Medical care to employees of two or more employers; Tampa Bay et al., FL; security zones multiple employer welfare arrangements and other Correction, 17291–17292 entities providing coverage; reporting requirements, 17493–17503 Commerce Department Section 3(40) collective bargaining agreements— See Census Bureau Plans established or maintained, 17471–17484 See Economic Development Administration Plans established or maintained; administrative hearing See Foreign-Trade Zones Board procedures, 17483–17491 See International Trade Administration See National Oceanic and Atmospheric Administration Employment and Training Administration See National Telecommunications and Information NOTICES Administration Agency information collection activities; proposals, See Patent and Trademark Office submissions, and approvals, 17410–17411

Commodity Credit Corporation Energy Department RULES See Energy Efficiency and Renewable Energy Office Loan and purchase programs: NOTICES Agricultural Management Assistance Program, 17272– Electricity export and import authorizations, permits, etc.: 17276 Direct Commodities Trading Inc., 17361

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Energy Efficiency and Renewable Energy Office Federal Communications Commission NOTICES RULES Consumer products; energy conservation program: Television broadcasting: Representative average unit costs of energy sources— Cable television systems— Electricity, natural gas, heating oil, propane, and Markets definition for purposes of broadcast signal kerosene, 17361–17363 carriage rules; correction, 17312 NOTICES Radio broadcasting: Environmental Protection Agency Equal Employment Opportunity rules and policies— RULES EEO public file reports; placement requirement, 17395– Hazardous waste program authorizations: 17396 Oklahoma, 17308–17311 Rulemaking proceedings; petitions filed, granted, denied, Pesticides; tolerances in food, animal feeds, and raw etc., 17396 agricultural commodities: Decanoic acid Federal Maritime Commission Correction, 17307–17308 NOTICES PROPOSED RULES Agreements filed, etc., 17396 Air quality implementation plans; approval and Ocean transportation intermediary licenses: promulgation; various States: Pacific Atlantic Lines, Inc., et al., 17396–17397 Indiana, 17331–17332 Hazardous waste program authorizations: Federal Reserve System Oklahoma, 17332–17333 NOTICES NOTICES Agency information collection activities; proposals, Confidential business information and data transfer, 17363– submissions, and approvals, 17397–17398 17365 Banks and bank holding companies: Meetings: Change in bank control, 17398 Air quality criteria; ozone and related photochemical Formations, acquisitions, and mergers, 17398 oxidants; peer-review workshop, 17365 Permissible nonbanking activities, 17399 National Drinking Water Advisory Council, 17365–17366 Pesticide registration, cancellation, etc.: Fish and Wildlife Service Chromated copper arsenate wood preservative products, RULES 17366–17372 Endangered and threatened species: Plant Products Co. Ltd., 17372–17374 Critical habitat designations— Pesticides; experimental use permits, etc.: Kauai cave wolf spider and amphipod, 17429–17470 Great Lakes Fishery Commission, 17374–17377 Gray wolf Superfund program: Correction, 17428 Prospective lessee agreements— Allied-Signal Property, MD, 17377–17378 Food and Drug Administration Toxic and hazardous substances control: RULES Lead-based paint activities in target housing and child- Food additives: occupied facilities; State and Indian Tribe Pentaerythritol ester of partially hydrogenated gum or authorization applications— wood rosin; CFR correction, 17277 North Dakota, 17378–17379 Water pollution control: Foreign-Trade Zones Board Clean Water Act— NOTICES Sewage sludge; use and disposal; regulatory review; Applications, hearings, determinations, etc.: comment request, 17379–17395 California, 17342–17343 Forest Service Executive Office of the President NOTICES See Presidential Documents Appealable decisions; legal notice: Intermountain Region, 17338–17340 Farm Service Agency Environmental statements; notice of intent: PROPOSED RULES Bridger-Teton National Forest, WY, 17340–17341 Special programs: Meetings: Farm Security and Rural Investment Act of 2002; Resource Advisory Committees— implementation— Grays Harbor, 17341 Loan eligibility provisions, 17316–17320 Olympic Peninsula, 17341 Minor Program loans, 17320–17325 NOTICES General Services Administration Agency information collection activities; proposals, NOTICES submissions, and approvals, 17337–17338 Public buildings space: Federal buildings; redesignation, 17399 Federal Aviation Administration Health and Human Services Department RULES See Food and Drug Administration Air carrier certification and operations: Flightcrew compartment access and door designs, 17513– Homeland Security Department 17517 See Coast Guard

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Interior Department National Aeronautics and Space Administration See Fish and Wildlife Service NOTICES See National Park Service Patent licenses; non-exclusive, exclusive, or partially exclusive: Internal Revenue Service Automated Control Technologies, Inc., 17412 RULES Bombardier Motor Corporation of America, 17412 Excise taxes: Pension excise taxes; future benefit accrual rate; National Agricultural Statistics Service significant reduction, 17277–17291 NOTICES NOTICES Committees; establishment, renewal, termination, etc.: Agency information collection activities; proposals, Agricultural Statistics Advisory Committee, 17341–17342 submissions, and approvals, 17424–17425 Committees; establishment, renewal, termination, etc.: Electronic Tax Administration Advisory Committee, National Oceanic and Atmospheric Administration 17425–17426 RULES Inflation adjustment factor and reference prices: Fishery conservation and management: Nonconventional source fuel credit, 17426 Alaska; fisheries of Exclusive Economic Zone— Meetings: American Fisheries Act; implementation; correction, Taxpayer Advocacy Panels, 17426–17427 17314 PROPOSED RULES Fishery conservation and management: International Trade Administration Magnuson-Stevens Act provisions— NOTICES Domestic fishing; general provisions, 17333–17334 Antidumping: NOTICES Bulk aspirin from— Marine mammals: China, 17343–17346 Incidental taking— Countervailing duties: Vandenberg Air Force Base, CA; harbor activities Pasta from— related to Delta IV/Evolved Expendable Launch Italy, 17346–17350 Vehicle; pinnipeds, 17351–17354

International Trade Commission National Park Service NOTICES RULES Import investigations: Special regulations: Power amplifier chips, broadband tuner chips, Lake Mead National Recreation Area, NV and AZ; transceiver chips, and products containing same; personal watercraft use, 17292–17307 correction, 17399 National Telecommunications and Information Justice Department Administration See Drug Enforcement Administration NOTICES See Justice Programs Office Grants and cooperative agreements; availability, etc.: NOTICES Pan-Pacific Education and Communication Experiments Pollution control; consent judgments: by Satellite Program, 17354–17356 BD Oil Gathering, Inc., 17399–17400 Colonial Pipeline Co., 17400 Puerto Rico Aqueduct & Sewer Authority, et al., 17400– Navy Department 17401 NOTICES Privacy Act: Inventions, Government-owned; availability for licensing, Systems of records, 17401–17402 17359

Justice Programs Office Nuclear Regulatory Commission NOTICES NOTICES Agency information collection activities; proposals, Meetings: submissions, and approvals, 17408 Nuclear Waste Advisory Committee, 17414–17415 Meetings: Applications, hearings, determinations, etc.: Violence Against Women National Advisory Committee, Entergy Nuclear Operations, Inc., 17412–17414 17409 United States Enrichment Corp., 17414

Labor Department Patent and Trademark Office See Employee Benefits Security Administration NOTICES See Employment and Training Administration Agency information collection activities; proposals, See Labor Statistics Bureau submissions, and approvals, 17356

Labor Statistics Bureau Personnel Management Office NOTICES PROPOSED RULES Agency information collection activities; proposals, Group life insurance; Federal employees: submissions, and approvals, 17411 Premium rates and age bands, 17315–17316

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Presidential Documents Social Security Administration PROCLAMATIONS NOTICES Special observances: Meetings: National Crime Victims’ Rights Week (Proc. 7659), Ticket to Work and Work Incentives Advisory Panel, 17253–17254 17423 EXECUTIVE ORDERS Quarantinable communicable diseases, revised list (EO Statistical Reporting Service 13295), 17255 See National Agricultural Statistics Service

Railroad Retirement Board Surface Transportation Board NOTICES RULES Agency information collection activities; proposals, Practice and procedure: submissions, and approvals, 17415–17416 Rate challenges; expedited resolution under stand-alone cost methodology, 17312–17314

Rural Business-Cooperative Service Transportation Department PROPOSED RULES See Federal Aviation Administration Program regulations: See Surface Transportation Board Farm Security and Rural Investment Act of 2002; implementation— Treasury Department Loan eligibility provisions, 17316–17320 See Internal Revenue Service Minor Program loans, 17320–17325

Rural Housing Service Separate Parts In This Issue PROPOSED RULES Program regulations: Part II Farm Security and Rural Investment Act of 2002; Interior Department, Fish and Wildlife Service, 17429– implementation— 17470 Loan eligibility provisions, 17316–17320 Minor Program loans, 17320–17325 Part III Labor Department, Employee Benefits Security Rural Utilities Service Administration, 17471–17491 PROPOSED RULES Program regulations: Part IV Farm Security and Rural Investment Act of 2002; Labor Department, Employee Benefits Security implementation— Administration, 17493–17511 Loan eligibility provisions, 17316–17320 Minor Program loans, 17320–17325 Part V Transportation Department, Federal Aviation Administration, 17513–17517 Securities and Exchange Commission NOTICES Part VI Agency information collection activities; proposals, Commerce Department, Economic Development submissions, and approvals, 17416 Administration, 17519–17528 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 17416–17418 National Association of Securities Dealers, Inc., 17418– Reader Aids 17420 Consult the Reader Aids section at the end of this issue for Pacific Exchange, Inc., 17420–17422 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Small Business Administration NOTICES To subscribe to the Federal Register Table of Contents Agency information collection activities; proposals, LISTSERV electronic mailing list, go to http:// submissions, and approvals, 17422–17423 listserv.access.gpo.gov and select Online mailing list Disaster loan areas: archives, FEDREGTOC-L, Join or leave the list (or change West Virginia, 17423 settings); then follow the instructions.

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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: 7659...... 17253 Executive Orders: 12452 (Revoked by 13295) ...... 17255 13295...... 17255 5 CFR Proposed Rules: 870...... 17315 7 CFR 916...... 17257 917...... 17257 993...... 17267 1465...... 17272 Proposed Rules: 762...... 17316 772...... 17320 956...... 17325 1901...... 17320 1941...... 17316 1943...... 17316 1951 (2 documents) ...... 17316, 17320 9 CFR Proposed Rules: 105...... 17327 115...... 17327 14 CFR 121...... 17514 21 CFR 172...... 17277 26 CFR 1...... 17277 54...... 17277 602...... 17277 29 CFR 2510...... 17472 2520...... 17494 2560...... 17503 2570 (2 documents) ...... 17484, 17506 33 CFR 165...... 17291 36 CFR 7...... 17292 40 CFR 180...... 17307 271...... 17308 Proposed Rules: 52...... 17331 271...... 17332 47 CFR 76...... 17312 49 CFR 1109...... 17312 1111...... 17312 1114...... 17312 50 CFR 17 (2 documents) ...... 17428, 17430 679...... 17314 Proposed Rules: 600...... 17333

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Federal Register Presidential Documents Vol. 68, No. 68

Wednesday, April 9, 2003

Title 3— Proclamation 7659 of April 4, 2003

The President National Crime Victims’ Rights Week, 2003

By the President of the United States of America

A Proclamation

Crime brings trauma, pain, and insecurity into the lives of too many Ameri- cans each year. As we work to reduce crime and protect the rights of the accused, we must take equal care to protect the rights of their victims. During National Crime Victims’ Rights Week, we remember those who have suffered as a result of crime and honor those who have helped these victims. Americans suffered over 24 million crimes in 2001, 5.7 million of which involved violence. While we have improved policies and our justice system has treated victims with greater respect in recent years, we must continue our work to ensure the full rights of all crime victims and better protect our citizens. My Administration believes that victims of violent crime have important rights that deserve protection in our Constitution, and to guarantee these rights, I strongly support the passage of the bipartisan Crime Victims’ Rights Amendment. This amendment will provide victims of violent crime the right to reasonable and timely notice of any public proceedings involving the crime or release of the perpetrator, and the right to be heard at public proceedings regarding the criminal’s sentence or potential release. It will also assure that such victims receive timely notice of any escape of their attacker. Under this amendment, decision makers will duly consider the victim’s safety and payment of restitution from the offender to the victim. This important amendment will strike the right balance in protecting indi- vidual rights and ensuring fairness and equity in our criminal justice system. Across our Nation, victims’ rights groups work on behalf of victims every day. Through care and compassion, these groups and individuals are bringing hope and comfort to their neighbors in need. Domestic violence shelters, support groups for families of homicide victims, rape crisis centers, and other organizations in our cities and communities offer vital assistance to individuals who have been affected by crime. In times of such crises, coun- selors, hotline operators, clergy, doctors, nurses, law enforcement, and count- less others also help their fellow Americans cope with their pain and suf- fering. As a Nation, we must continue to seek justice on behalf of all people who have been victimized by crime. The heroes in these efforts are the individuals and organizations who work to provide valuable support and assistance to those who have suffered from crime. This week allows us to recognize these heroes and renew our commitment to fulfilling the promise of our Nation of justice for all. 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 April 6 through April 12, 2003, as National Crime Victims’ Rights Week. I encourage every commu- nity to embrace the cause of victims’ rights and to advance it in all sectors of our society.

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IN WITNESS WHEREOF, I have hereunto set my hand this fourth day of April, in the year of our Lord two thousand three, and of the Independence of the United States of America the two hundred and twenty-seventh W

[FR Doc. 03–8831 Filed 4–8–03; 8:45 am] Billing code 3195–01–P.

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Executive Order 13295 of April 4, 2003

Revised List of Quarantinable Communicable Diseases

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 361(b) of the Public Health Service Act (42 U.S.C. 264(b)), it is hereby ordered as follows: Section 1. Based upon the recommendation of the Secretary of Health and Human Services (the ‘‘Secretary’’), in consultation with the Surgeon General, and for the purpose of specifying certain communicable diseases for regula- tions providing for the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases, the following communicable diseases are hereby specified pursuant to section 361(b) of the Public Health Service Act: (a) Cholera; Diphtheria; infectious Tuberculosis; Plague; Smallpox; Yellow Fever; and Viral Hemorrhagic Fevers (Lassa, Marburg, Ebola, Crimean-Congo, South American, and others not yet isolated or named). (b) Severe Acute Respiratory Syndrome (SARS), which is a disease associ- ated with fever and signs and symptoms of pneumonia or other respiratory illness, is transmitted from person to person predominantly by the aerosolized or droplet route, and, if spread in the population, would have severe public health consequences. Sec. 2. The Secretary, in the Secretary’s discretion, shall determine whether a particular condition constitutes a communicable disease of the type speci- fied in section 1 of this order. Sec. 3. The functions of the President under sections 362 and 364(a) of the Public Health Service Act (42 U.S.C. 265 and 267(a)) are assigned to the Secretary. Sec. 4. This order is not intended to, and does not, create any right or benefit enforceable at law or equity by any party against the United States, its departments, agencies, entities, officers, employees or agents, or any other person. Sec. 5. Executive Order 12452 of December 22, 1983, is hereby revoked. W THE WHITE HOUSE, April 4, 2003.

[FR Doc. 03–8832 Filed 4–9–03; 8:45 am] Billing code 3195–01–P

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Rules and Regulations Federal Register Vol. 68, No. 68

Wednesday, April 9, 2003

This section of the FEDERAL REGISTER Vegetable Programs, AMS, USDA, 1400 present an irreconcilable conflict with contains regulatory documents having general Independence Avenue, SW., STOP this rule. applicability and legal effect, most of which 0237, Washington, DC 20250–0237; Fax: The Act provides that administrative are keyed to and codified in the Code of (202) 720–8938, or e-mail: proceedings must be exhausted before Federal Regulations, which is published under [email protected]. All parties may file suit in court. Under 50 titles pursuant to 44 U.S.C. 1510. comments should reference the docket section 608c(15)(A) of the Act, any The Code of Federal Regulations is sold by number and the date and page number handler subject to an order may file the Superintendent of Documents. Prices of of this issue of the Federal Register and with USDA a petition stating that the new books are listed in the first FEDERAL will be made available for public order, any provision of the order, or any REGISTER issue of each week. inspection at the Office of the Docket obligation imposed in connection with Clerk during regular business hours, or the order is not in accordance with law can be viewed at: http:// and request a modification of the order DEPARTMENT OF AGRICULTURE www.ams.usda.gov/fv/moab.html. or to be exempted therefrom. A handler is afforded the opportunity for a hearing Agricultural Marketing Service FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist, on the petition. After the hearing, USDA would rule on the petition. The Act 7 CFR Parts 916 and 917 California Marketing Field Office, Marketing Order Administration provides that the district court of the [Docket No. FV03–916–2 IFR] Branch, Fruit and Vegetable Programs, United States in any district in which AMS, USDA, 2202 Monterey Street, the handler is an inhabitant, or has his Nectarines and Peaches Grown in or her principal place of business, has California; Revision of Handling suite 102B, Fresno, California, 93721; telephone (559) 487–5901, Fax: (559) jurisdiction to review USDA’s ruling on Requirements for Fresh Nectarines the petition, provided an action is filed and Peaches 487–5906; or George Kelhart, Technical Advisor, Marketing Order not later than 20 days after the date of AGENCY: Agricultural Marketing Service, Administration Branch, Fruit and the entry of the ruling. USDA. Vegetable Programs, AMS, USDA, 1400 Under the orders, lot stamping, grade, ACTION: Interim final rule with request Independence Avenue, SW., STOP size, maturity, container, container for comments. 0237, Washington, DC 20250–0237; marking, and pack requirements are telephone: (202) 720–2491; Fax: (202) established for fresh shipments of SUMMARY: This rule revises the handling 720–8938. California nectarines and peaches. Such requirements for California nectarines Small businesses may request requirements are in effect on a and peaches by modifying the grade, information on complying with this continuing basis. The Nectarine size, maturity, and container regulation by contacting Jay Guerber, Administrative Committee (NAC) and requirements for fresh shipments of Marketing Order Administration the Peach Commodity Committee (PCC), these fruits, beginning with 2003 season Branch, Fruit and Vegetable Programs, which are responsible for local shipments. This rule also continues a AMS, USDA, 1400 Independence administration of the orders, met on modification of the requirements for Avenue, SW., STOP 0237, Washington, December 3, 2002, and unanimously placement of Federal-State Inspection DC 20250–0237; telephone: (202) 720– recommended that these handling Service lot stamps for the 2003 season, 2491, Fax: (202) 720–8938, or e-mail: requirements be revised for the 2003 establishes a net weight for a style of [email protected]. season, which begins about the first or containers and exempts those containers second week of April. The changes: (1) from the well-filled requirement, and SUPPLEMENTARY INFORMATION: This rule Continue the lot stamping requirements revises the weight-count standards for is issued under Marketing Agreement which have been in effect since the 2000 Peento type peaches. The marketing Nos. 124 and 85, and Marketing Order season; (2) authorize shipments of ‘‘CA orders regulate the handling of Nos. 916 and 917 (7 CFR parts 916 and Utility’’ quality fruit to continue during nectarines and peaches grown in 917) regulating the handling of the 2003 season; (3) revise weight-count California and are administered locally nectarines and peaches grown in standards for the Peento type peaches; by the Nectarine Administrative and California, respectively, hereinafter (4) establish a net weight for all five- Peach Commodity Committees referred to as the ‘‘orders.’’ The orders down containers and exempt those (committees). This rule would enable are effective under the Agricultural containers from the well-filled handlers to continue shipping fresh Marketing Agreement Act of 1937, as requirement; and (5) revise varietal nectarines and peaches meeting amended (7 U.S.C. 601–674), hereinafter maturity, quality, and size requirements consumer needs in the interests of referred to as the ‘‘Act.’’ to reflect changes in growing and producers, handlers, and consumers of The Department of Agriculture marketing practices. these fruits. (USDA) is issuing this rule in The committees meet prior to and DATES: Effective April 10, 2003. conformance with Executive Order during each season to review the rules Comments received by June 9, 2003, 12866. and regulations effective on a will be considered prior to issuance of This rule has been reviewed under continuing basis for California any final rule. Executive Order 12988, Civil Justice nectarines and peaches under the ADDRESSES: Interested persons are Reform. This rule is not intended to orders. Committee meetings are open to invited to submit written comments have retroactive effect. This rule will the public and interested persons are concerning this rule. Comments must be not preempt any State or local laws, encouraged to express their views at sent to the Docket Clerk, Fruit and regulations, or policies, unless they these meetings. The committees held

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such meetings on December 3, 2002. ‘‘trace back’’ effort, as it is called, would In a meeting of the Stone Fruit Grade USDA reviews committee be jeopardized. and Size Subcommittee on November 6, recommendations and information, as Over the last few years, several new 2002, it was determined that given the well as information from other sources, containers have been introduced for use different styles and configurations of and determines whether modification, by nectarine and peach handlers. These RPCs available, having a standardized suspension, or termination of the rules containers are returnable plastic display panel or a satisfactory adhesive and regulations would tend to effectuate containers (RPCs). Use of RPCs may for placement of the cards may not be the declared policy of the Act. represent substantial savings to retailers realistic and the industry needed to No official crop estimate was for storage and disposal, as well as for continue the lot stamping requirements available at the time of the committees’ handlers who do not have to pay for in place since the 2000 season. meetings because the nectarine and traditional, single-use, containers. Fruit For those reasons, the subcommittee peach trees were dormant. The is packed in the containers by the unanimously recommended to the committees will recommend a crop handler, delivered to the retailer, committees that the regulation in effect estimate at their meetings in early emptied, and returned to a central since the 2000 season requiring lot spring. However, preliminary estimates clearinghouse for cleaning and stamp numbers on USDA-approved indicate that the 2003 crop will be redistribution to the handler. However, pallet tags, as well as on individual similar in size and characteristics to the because these containers are designed containers on a pallet, be again required 2002 crop, which totaled 23,230,000 for reuse, RPCs do not support markings for the 2003 season. The committees, in containers of nectarines and 22,124,000 that are permanently affixed to the turn, recommended unanimously that containers of peaches. container. All markings must be printed such requirement be extended for the on cards that slip into tabs on the front 2003 season, as well. Lot Stamping Requirements or sides of the containers. The cards are Thus, §§ 916.115 and 917.150 will be Sections 916.55 and 917.45 of the easily inserted and removed, and further amended to require the lot stamp orders require inspection and contribute to the efficient reuse of RPCs. number to be printed on a USDA- certification of nectarines and peaches, The cards are a continuing concern approved pallet tag, in addition to the for the inspection service and the requirement that the lot stamp number respectively, handled by handlers. industries because of their unique be applied to cards on all exposed or Sections 916.115 and 917.150 of the portability. There is some concern that outside containers, and not less than 75 nectarine and peach orders’ rules and the cards on pallets of inspected percent of the total containers on a regulations, respectively, require that all containers could easily be moved to pallet, during the 2003 season. exposed or outside containers of pallets of uninspected containers, thus nectarines and peaches, and at least 75 Container and Pack Requirements permitting a handler to avoid inspection percent of the total containers on a on a lot or lots of nectarines or peaches. Sections 916.52 and 917.41 of the pallet, be stamped with the Federal- This would also jeopardize the use of orders authorize establishment of State Inspection Service (inspection the lot stamp numbers for the container, pack, and marking service) lot stamp number after industries’ ‘‘trace back’’ program. requirements for shipments of inspection and before shipment to show To address this concern since the nectarines and peaches, respectively. that the fruit has been inspected. These 2000 season, the committees have Under §§ 916.350 and 917.442 of the requirements apply except for annually recommended that pallets of orders, the specifications of container containers that are loaded directly onto inspected fruit in RPCs be identified markings, net weights, well-filled railway cars, exempted, or mailed with a USDA-approved pallet tag requirements, weight-count standards directly to consumers in consumer containing the lot stamp number, in for various sizes of nectarines and packages. addition to the lot stamp number peaches, and lists of standard containers Lot stamp numbers are assigned to printed on the card on the container. In are provided. each handler by the inspection service, this way, noted the committees, an audit The committees unanimously and are used to identify the handler and trail would be created, confirming that recommended that a uniform net weight the date on which the container was the lot stamp number on each container be established for all ‘‘five down’’ boxes packed. The lot stamp number is also on the pallet corresponds to the lot (commonly referred to as ‘‘Euro’’ boxes), used by the inspection service to stamp number on the pallet tag. and that all such containers be identify and locate the inspector’s The committees and the inspection exempted from the well-filled corresponding working papers or field service presented their concerns to the requirement. Currently, the net weight notes. Working papers are the manufacturers of these types of requirement of 31 pounds for ‘‘five documents each inspector completes containers prior to the 2000 season. At down’’ boxes and the exemption from while performing an inspection on a lot that time, one manufacturer indicated a the well-filled requirement applies only of nectarines or peaches. Information willingness to address the problem by to RPCs. However, as a handler noted at contained in the working papers offering an area on the principal display one meeting, the industry uses boxes of supports the grade levels certified to by panel where the container markings the same ‘‘footprint’’ (length and width the inspector at the time of the would adhere to the container. Another dimensions) as the RPCs that are made inspection. possible improvement discussed was for of more traditional materials, such as The lot stamp number has value for an adhesive for the current style of corrugated cardboard. ‘‘Five down’’ the industries, as well. The committees containers which would securely hold boxes are containers that lay in a pattern utilize the lot stamp number and date the cards with the lot stamp numbers, of five containers per layer on each codes to trace fruit in the container back yet would be easy for the clearinghouse pallet. In other words, each layer of to the orchard from which it was to remove when the containers are boxes on a pallet contains only five Euro harvested. This information is essential washed. However, the changes offered boxes. Other container sizes and in providing quick information for a by the manufacturers were not available footprints may result in nine boxes per crisis management program instituted for use in the previous three seasons, layer, etc. by the industries. Without the lot stamp and there is no assurance that they will Since applying the well-filled information on each container, the be available for the 2003 season. requirements to any five down Euro box

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might result in bruising or other damage were developed for round fruit. Peento This rule revises §§ 916.350, 916.356, to fruit packed in it, the Stone Fruit type peaches are shaped like donuts, 917.442, and 917.459 to permit Grade and Size Subcommittee voted and those weight-count standards were shipments of nectarines and peaches unanimously to extend the current inappropriate. In an effort to standardize meeting ‘‘CA Utility’’ quality requirements applicable to RPCs with the conversion from tray-packing to requirements during the 2003 season. regard to net weight and well-filled volume-filling for Peento type peaches, (‘‘CA Utility’’ fruit is lower in quality requirements to all five down Euro the committee staff conducted weigh- than that meeting the modified U.S. No. containers. This would ensure that all count surveys during the 2001 season to 1 grade requirements.) Shipments of five down Euro containers have a determine the most optimum weight- nectarines and peaches meeting ‘‘CA uniform net weight and ensure that the counts for the varieties at varying fruit Utility’’ quality requirements have been fruit in those containers is handled in sizes. permitted each season since 1996. such a way to minimize damage. As a result, a new weight-count table Studies conducted by the NAC and At the December 3, 2002, meeting, the applicable to only the Peento type PCC in 1996 indicated that some NAC and PCC also unanimously peaches was added for the 2002 season. consumers, retailers, and foreign recommended that all five down Euro However, during the 2002 season, the importers found the lower-quality fruit boxes have an established net weight of committee staff continued to conduct acceptable in some markets. When 31 pounds, which is to be printed on the further weight-count surveys to ensure shipments of ‘‘CA Utility’’ nectarines end of the container, and that those that the Peento type peaches packed in were first permitted in 1996, they containers, like the RPCS, be exempt volume-filled containers meet the represented 1.1 percent of all nectarine from the well-filled requirement. weight-count standards established for shipments, or approximately 210,000 Nectarines: For the reasons stated tray-packed fruit. During those studies, containers. Shipments of ‘‘CA Utility’’ above, paragraphs (a)(1) and (a)(8) of the committee staff learned that very nectarines reached a high of 5.3 percent § 916.350 are revised to refer to all five large Peento type peaches that were not (1,239,000 containers) during the 2002 down Euro containers. Such changes previously converted from tray-packs to season, but usually represent will ensure that all five down Euro volume-filled containers were being approximately 4 percent of total containers of nectarines are a net weight packed in volume-filled containers and nectarine shipments. Shipments of ‘‘CA of 31 pounds and are exempt from the did not meet the weight-count Utility’’ peaches totaled 1.9 percent of well-filled requirement. The container standards. all peach shipments, or approximately markings shall be placed on one outside 366,000 containers, during the 1996 end of the container in plain sight and For this reason, Table 3 of paragraph season. Shipments of ‘‘CA Utility’’ in plain letters. (a)(5)(iv) in § 917.442 is being revised to peaches reached a high of 5.6 percent of Peaches: For the reasons stated above, include weight-count standards for two all peach shipments (1,231,000 paragraphs (a)(1) and (a)(9) of § 917.442 of the larger peach sizes, sizes 32 and containers) during the 2002 season, but are revised to refer to all five down Euro 30. Table 3 will also be corrected with usually represent approximately 4 containers. Such changes will ensure regard to the maximum number of fruit percent of total peach shipments. that all five down Euro containers of in a 16-pound sample for sizes 54 and Handlers have also commented that peaches are a net weight of 31 pounds 50. Also, the maximum number of fruit the availability of the ‘‘CA Utility’’ and are exempt from the well-filled in a 16-pound sample of size 54 Peento quality option lends flexibility to their requirement. The markings shall be type peaches currently is listed as 77 packing operations. They have noted placed on one outside end of the peaches, and the maximum number of that they now have the opportunity to container in plain sight and in plain size 50 Peento type peaches is listed as remove marginal nectarines and peaches letters. 80 peaches. The maximum numbers of from their U.S. No. 1 containers and fruit for these sizes were inadvertently place this fruit in containers of ‘‘CA Weight-Count Standards for Peaches reversed, and will be corrected to Utility.’’ This flexibility, the handlers Under the requirements of § 917.41 of indicate that the maximum number of note, results in better quality U.S. No. 1 the order, containers of peaches are fruit in a 16-pound sample of size 54 packs without sacrificing fruit. required to meet weight-count standards Peento type peaches is 80, and the The Stone Fruit Grade and Size for a maximum number of peaches in a maximum number of fruit in a 16-pound Subcommittee met on November 6, 16-pound sample when such peaches, sample of size 50 Peento type peaches 2002, and did not make a which may be packed in tray-packed is 77. recommendation to the NAC and PCC to containers, are converted to volume- Grade and Quality Requirements continue shipments of ‘‘CA Utility’’ filled containers. Under § 917.442 of the quality nectarines and peaches. Some order’s rules and regulations, weight- Sections 916.52 and 917.41 of the subcommittee members raised concerns count standards are established for all orders authorize the establishment of about ‘‘CA Utility’’ quality fruit, varieties of peaches as Tables 1, 2, and grade and quality requirements for including concerns that growers’’ 3 of paragraph (a)(5)(iv). nectarines and peaches, respectively. returns on ‘‘CA Utility’’ quality fruit are According to the PCC, the Peento type Prior to the 1996 season, § 916.356 lower. The issue of the authorized peaches have traditionally been packed required nectarines to meet a modified tolerance of 40 percent U.S. No. 1 fruit in trays because they have been U.S. No. 1 grade. Specifically, in each container of ‘‘CA Utility’’ marketed as a premium variety, which nectarines were required to meet U.S. quality was raised, and there was some justified the added packing costs. No. 1 grade requirements, except for a discussion that the tolerance should be However, as the volume has slightly tighter requirement for scarring reduced so that less U.S. No. 1 fruit increased, the value of this peach has and a more liberal allowance for would be in a box of ‘‘CA Utility’’ diminished in the marketplace, and misshapen fruit. Prior to the 1996 quality fruit. However, ultimately no some handlers converted their tray- season, § 917.459 required peaches to decisions were made by the packed containers of Peento types to meet the requirements of a U.S. No. 1 subcommittee as the result of these volume-filled containers. Prior to the grade, except for a more liberal discussions. 2002 season, weight-count standards allowance for open sutures that were Subsequently, however, the NAC and established for peaches and nectarines not ‘‘serious damage.’’ PCC voted unanimously at their

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December 3, 2002, meetings to authorize § 917.459 of the order’s rules and (a)(9). This rule revises § 916.356 to continued shipments of ‘‘CA Utility’’ regulations. This rule revises Table 1 of establish variety-specific minimum size quality fruit during the 2003 season. paragraph (a)(1)(iv) of § 917.459 to add requirements for four varieties of Accordingly, based upon the maturity guides for six peach varieties. nectarines that were produced in recommendations, paragraph (d) of Specifically, SPI recommended adding commercially-significant quantities of §§ 916.350 and 917.442, and paragraph maturity guides for the September more than 10,000 containers for the first (a)(1) of §§ 916.356 and 917.459 are Flame variety to be regulated at the I time during the 2002 season. This rule revised to permit shipments of maturity guide; Autumn Red, Magenta also removes the variety-specific nectarines and peaches meeting ‘‘CA Queen, Pretty Lady, and the Prima minimum size requirements for 11 Utility’’ quality requirements during the Gattie 10 varieties to be regulated at the varieties of nectarines whose shipments 2003 season, on the same basis as J maturity guide; and the Golden fell below 5,000 containers during the shipments since the 2000 season. Princess variety to be regulated at the L 2002 season. For example, one of the varieties Maturity Requirements maturity guide. In addition, SPI requested that the recommended for addition to the In §§ 916.52 and 917.41, authority is language in paragraph (a)(1)(vi) of variety-specific minimum size provided to establish maturity § 917.459 be revised with regard to the requirements is the Red Roy variety of requirements for nectarines and Joanna Sweet variety. Currently, the nectarines, recommended for regulation peaches, respectively. The minimum Joanna Sweet variety is required to have at a minimum size 88. Studies of the maturity level currently specified for a one hundred percent surface color size ranges attained by the Red Roy nectarines and peaches is ‘‘mature’’ as requirement for meeting the assigned variety revealed that 100 percent of the defined in the standards. For most color chip. SPI requested that the containers met the minimum size of 88 varieties, ‘‘well-matured’’ language be changed to reflect that any during the 2002 season. Sizes ranged determinations for nectarines and of the fruit surface that is not red shall from size 40 to size 88, with 1.5 percent peaches are made using maturity guides meet the color guide established for the of the fruit in the 40 sizes, 22.2 percent (e.g., color chips). These maturity guides variety, including any color found in the of the packages in the 50 sizes, 55.8 are reviewed each year by the Shipping stem cavity. This recommendation is percent in the 60 sizes, 14.6 percent in Point Inspection Service (SPI) to based upon SPI’s experience with the the 70 sizes, 5.4 in the 80 sizes, with .5 determine whether they need to be maturity characteristics of this variety. percent in the size 88. changed, based upon the most-recent Thus, paragraph (a)(1)(iv) of § 917.459 A review of other varieties with the information available on the individual will be revised to reflect this same harvesting period indicated that characteristics of each nectarine and recommendation. the Red Roy variety was also peach variety. The PCC recommended these comparable to those varieties in its size These maturity guides established maturity guide requirements based on ranges for that time period. Discussions under the handling regulations of the SPI’s continuing review of individual with handlers known to handle the California tree fruit marketing orders maturity characteristics and variety confirm this information have been codified in the Code of identification of the appropriate regarding minimum size and harvesting Federal Regulations as Table 1 in maturity guide corresponding to the period, as well. Thus, the §§ 916.356 and 917.459, for nectarines ‘‘well-matured’’ level of maturity for recommendation to place the Red Roy and peaches, respectively. peach varieties in production. variety in the variety-specific minimum The requirements in the 2003 Size Requirements: Both orders size regulation at a minimum size 88 is handling regulations are the same as provide (in §§ 916.52 and 917.41) appropriate. This recommendation those that appeared in the 2002 authority to establish size requirements. results from size studies conducted over handling regulations with a few Size regulations encourage producers to a two-year period. exceptions. Those exceptions are leave fruit on the tree longer, which Historical data such as this provides explained in this rule. improves both size and maturity of the the NAC with the information necessary Nectarines: Requirements for ‘‘well- fruit. Acceptable fruit size provides to recommend the appropriate sizes at matured’’ nectarines are specified in greater consumer satisfaction and which to regulate various nectarine § 916.356 of the order’s rules and promotes repeat purchases; and, varieties. In addition, producers and regulations. This rule revises Table 1 of therefore, increases returns to producers handlers of the varieties affected are paragraph (a)(1)(iv) of § 916.356 to add and handlers. In addition, increased personally invited to comment when maturity guides for four varieties of fruit size results in increased numbers such size recommendations are nectarines. Specifically, SPI of packed containers of nectarines and deliberated. Producer and handler recommended adding maturity guides peaches per acre, also a benefit to comments are also considered at both for the Mango variety to be regulated at producers and handlers. NAC and subcommittee meetings when the B maturity guide, for the Honey Varieties recommended for specific the staff receives such comments, either Royale and the Sunny Red varieties at size regulations have been reviewed and in writing or verbally. the J maturity guide, and the Prince Jim such recommendations are based on the For reasons similar to those discussed variety to be regulated at the L maturity specific characteristics of each variety. in the preceding paragraph, the guide. The NAC and PCC conduct studies each introductory text of paragraph (a)(4) of The NAC recommended these season on the range of sizes attained by § 916.356 is revised to include the Red maturity guide requirements based on the regulated varieties and those Roy variety; and the introductory text of SPI’s continuing review of individual varieties with the potential to become paragraph (a)(6) of § 916.356 is revised maturity characteristics and regulated, and determine whether to include the Candy Gold, Candy identification of the appropriate revisions and additions to the size Sweet, and Honey Royale nectarine maturity guide corresponding to the requirements are appropriate. varieties. ‘‘well-matured’’ level of maturity for Nectarines: Section 916.356 of the This rule also revises the introductory nectarine varieties in production. order’s rules and regulations specifies text of paragraphs (a)(3), (a)(4), and Peaches: Requirements for ‘‘well- minimum size requirements for fresh (a)(6) of § 916.356 to remove 11 varieties matured’’ peaches are specified in nectarines in paragraphs (a)(2) through from the variety-specific minimum size

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requirements specified in these regulation at a minimum size 80 is handlers, and consumers of fresh paragraphs because less than 5,000 appropriate. This recommendation, as California nectarines and peaches. containers of each of these varieties with all other size recommendations for This rule establishes handling were produced during the 2002 season. peaches, results from size studies requirements for fresh California Specifically, the introductory text of conducted over a three-year period. nectarines and peaches consistent with paragraph (a)(3) of § 916.356 is revised Historical data such as this provides expected crop and market conditions, to remove the Johnny’s Delight and May the PCC with the information necessary and will help ensure that all shipments Jim nectarine varieties; the introductory to recommend the appropriate sizes at of these fruits made each season will text of paragraph (a)(4) of § 916.356 is which to regulate various peach meet acceptable handling requirements revised to remove the Scarlet Jewels and varieties. In addition, producers and established under each of these orders. Star Brite nectarine variety; and the handlers of the varieties affected are This rule will also help the California introductory text of paragraph (a)(6) of personally invited to comment when nectarine and peach industries to § 916.356 is revised to remove the Arctic such size recommendations are provide fruit desired by consumers. Gold, Kay Diamond, Prima Diamond deliberated. Producer and handler This rule is designed to establish and XVI, Spring Diamond, Spring Red, comments are also considered at both maintain orderly marketing conditions Summer Beaut, and Sunecteight (Super PCC and subcommittee meetings when for these fruit in the interests of Star) nectarine varieties. the staff receives such comments, either producers, handlers, and consumers. Nectarine varieties removed from the in writing or verbally. Initial Regulatory Flexibility Analysis nectarine variety-specific minimum size For reasons similar to those discussed requirements become subject to the non- in the preceding paragraph, the Pursuant to requirements set forth in listed variety size requirements introductory text of paragraph (a)(5) of the Regulatory Flexibility Act (RFA), the specified in paragraphs (a)(7), (a)(8), and § 917.459 is revised to include the Agricultural Marketing Service (AMS) (a)(9) of § 916.356. Happy Dream, Magenta Queen, has considered the economic impact of Peaches: Section 917.459 of the Springtreat (60EF32), and Spring Flame this action on small entities. order’s rules and regulations specifies 21 peach varieties; and the introductory Accordingly, AMS has prepared this minimum size requirements for fresh text of paragraph (a)(6) of § 917.459 is initial regulatory flexibility analysis. peaches in paragraphs (a)(2) through revised to include the August Flame, The purpose of the RFA is to fit (a)(6), and paragraphs (b) and (c). This Henry II, June Flame, Pink Giant, Prima regulatory actions to the scale of rule revises § 917.459 to establish Peach XV, Red Giant, Snow Beauty, and business subject to such actions in order variety-specific minimum size Snow Princess peach varieties. that small businesses will not be unduly requirements for 12 peach varieties that This rule also revises the introductory or disproportionately burdened. were produced in commercially- text of paragraph (a)(3) of § 917.459 to Marketing orders issued pursuant to the significant quantities of more than remove the Topcrest peach variety; Act, and rules issued thereunder, are 10,000 containers for the first time revises the introductory text of unique in that they are brought about during the 2002 season. This rule also paragraph (a)(5) of § 917.459 to remove through group action of essentially removes the variety-specific minimum the White Dream peach variety; and small entities acting on their own size requirements for 10 varieties of revises the introductory paragraph (a)(6) behalf. Thus, both statutes have small peaches whose shipments fell below of § 917.459 to remove the Cal Red, entity orientation and compatibility. 5,000 containers during the 2002 Champagne, Flaming Dragon, Garnet There are approximately 300 season. Jewel, Lacey, Madonna Sun, Morning California nectarine and peach handlers For example, one of the varieties Lord, and Red Sun peach varieties from subject to regulation under the orders recommended for addition to the the variety-specific minimum size covering nectarines and peaches grown variety-specific minimum size requirements specified in the section in California, and about 1,800 producers requirements is the Springtreat (60EF32) because less than 5,000 containers of of these fruits in California. Small variety of peaches, which was each of these varieties was produced agricultural service firms, which recommended for regulation at a during the 2002 season. include handlers, are defined by the minimum size 80. Studies of the size Peach varieties removed from the Small Business Administration (13 CFR ranges attained by the Springtreat peach variety-specific minimum size 121.201) as those whose annual receipts (60EF32) variety revealed that 100 requirements become subject to the non- are less than $5,000,000. Small percent of the containers met the listed variety size requirements agricultural producers are defined by minimum size of 80 during the 2002 specified in paragraphs (b) and (c) of the Small Business Administration as season. The sizes ranged from size 50 to § 917.459. those having annual receipts of less than size 80, with 8.2 percent of the The NAC and PCC recommended $750,000. A majority of these handlers containers meeting the size 50, 41.2 these changes in the minimum size and producers may be classified as meeting the size 60, 37.6 percent requirements based on a continuing small entities. meeting the size 70, and 12.9 percent review of the sizing and maturity The committees’ staff has estimated meeting the size 80. relationships for these nectarine and that there are less than 20 handlers in A review of other varieties with the peach varieties, and the consumer the industry who could be defined as same harvesting period indicated that acceptance levels for various fruit sizes. other than small entities. For the 2002 the Springtreat (60EF32) variety was This rule is designed to establish season, the committees’ staff estimated also comparable to those varieties in its minimum size requirements for fresh that the average handler price received size ranges for that time period. nectarines and peaches consistent with was $9.00 per container or container Discussions with handlers known to expected crop and market conditions. equivalent of nectarines or peaches. A pack the variety confirm this This rule reflects the committees’ and handler would have to ship at least information regarding minimum size USDA’s appraisal of the need to revise 556,000 containers to have annual and harvesting period, as well. Thus, the handling requirements for California receipts of $5,000,000. Given data on the recommendation to place the nectarines and peaches, as specified. shipments maintained by the Springtreat (60EF32) variety in the USDA believes that this rule will have committees’ staff and the average variety-specific minimum size a beneficial impact on producers, handler price received during the 2002

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season, the committees’ staff estimates containers since the 2000 season for requirement to be well-filled. In that small handlers represent nectarine and peach shipments. The consideration of uniformity for five approximately 94 percent of all the modified requirements of §§ 916.115 down Euro containers, this alternative handlers within the industry. and 917.150 mandated that the lot was rejected. The committees’ staff has also stamp numbers be printed on a USDA- In 1996, §§ 916.350 and 917.442 were estimated that less than 20 percent of approved pallet tag, in addition to the revised to permit shipments of ‘‘CA the producers in the industry could be requirement that the lot stamp number Utility’’ quality nectarines and peaches defined as other than small entities. For be applied to cards on all exposed or as an experiment during the 1996 the 2002 season, the committees’ outside containers, and not less than 75 season only. Such shipments have estimated the average producer price percent of the total containers on a subsequently been permitted each received was $4.00 per container or pallet. Continuation of such season. Since 1996, shipments of ‘‘CA container equivalent for nectarines and requirements for the 2003 season would Utility’’ have ranged from 1 to 5 percent peaches. A producer would have to help the inspection service safeguard of total nectarine and peach shipments. produce at least 187,500 containers of the identity of inspected and certified This rule authorizes continued nectarines and peaches to have annual containers of nectarines and peaches, shipments of ‘‘CA Utility’’ quality receipts of $750,000. Given data and would help the industry by keeping nectarines and peaches during the 2003 maintained by the committees’ staff and in place the information necessary to season. the average producer price received facilitate their ‘‘trace-back’’ program. The Grade and Size Subcommittee during the 2002 season, the committees’ The Stone Fruit Grade and Size met on November 6, 2002, and briefly staff estimates that small producers Subcommittee met on November 6, discussed ‘‘CA Utility’’ quality represent more than 80 percent of the 2002, and considered possible nectarines and peaches. The producers within the industry. With an alternatives to this action. Other subcommittee ultimately did not make a average producer price of $4.00 per alternatives were rejected because it was recommendation to the NAC and PCC container or container equivalent, and a determined that given the different regarding continued shipments of ‘‘CA combined packout of nectarines and styles and configurations of RPCs Utility’’ quality nectarines and peaches. peaches of 45,354,000 containers, the available, having a satisfactory adhesive The subcommittee did, however, value of the 2002 packout level is for placement of the cards may not be request that the results of a grower estimated to be $181,416,000. Dividing realistic, at least for the time being, survey on attitudes toward ‘‘CA Utility’’ this total estimated grower revenue given the reluctance of box quality fruit conducted in December of figure by the estimated number of manufacturers to respond to the 2001 by the committees be provided to producers (1,800) yields an estimate of industry’s requests. the committees at the December 3, 2002, average revenue per producer of about For those reasons, the subcommittee meeting. $101,000 from the sales of peaches and and the committees unanimously However, at their meetings on nectarines. recommended extending the December 3, 2002, the NAC and PCC Under §§ 916.52 and 917.41 of the requirement for the lot stamp number to unanimously recommended to continue orders, grade, size, maturity, container, be printed on the cards on each to allow shipments of ‘‘CA Utility’’ container marking, and pack container and for each pallet to be quality nectarines and peaches. requirements are established for fresh marked with a USDA-approved pallet Sections 916.350 and 917.442 shipments of California nectarines and tag, also containing the lot stamp establish container, pack, and marking peaches, respectively. Such number. Such safeguards are intended requirements for shipments of requirements are in effect on a to ensure that all the containers on each nectarines and peaches, respectively. continuing basis. The NAC and PCC met pallet have been inspected and certified This rule makes changes to the pack and on December 3, 2002, and unanimously in the event a card on an individual container marking requirements of the recommended that these handling container or containers is removed, orders’ rules and regulations to establish requirements be revised for the 2003 misplaced, or lost. a net weight of 31 pounds for all types season. These recommendations had The Stone Fruit Grade and Size of five down Euro boxes, and exempt been presented to the committees by Subcommittee also discussed the 31- such boxes from the well-filled various subcommittees, each charged pound net weight requirement for all requirement. with review and discussion of the five down Euro containers at its meeting Section 917.442 also establishes changes. The changes: (1) Continue the on November 6, 2002. At that time, it minimum weight-count standards for lot stamping requirements for reusable was noted by one handler that the containers of peaches. Under these plastic containers that have been in current net weight of 31 pounds and requirements, containers of peaches are effect since the 2000 season; (2) exemption from the well-filled required to meet weight-count standards authorize shipments of ‘‘CA Utility’’ requirement are applicable to only the for a maximum number of peaches in a quality fruit to continue during the 2003 RPCs. The handler noted, however, that 16-pound sample when such peaches season; (3) revise weight-count the industry also currently uses five are packed in a tray-packed container. standards for the Peento type peaches; down Euro boxes that are not RPCs. He Those same maximum numbers of (4) establish a net weight for all five- further suggested that all five down peaches are also applicable to volume- down containers and exempt those Euro boxes should be required to meet filled containers, based upon the tray- containers from the well-filled the net weight of 31 pounds and be packed standard. The weight-count requirement; and (5) revise varietal exempted from the requirement to be standard was developed so handlers maturity, quality, and size requirements well-filled. The subcommittee agreed may convert tray-packed peaches to to reflect changes in growing and and unanimously recommended the volume-filled containers and be assured marketing practices. change to the committees. The that fruit of a specific size in the This rule authorizes continuation of alternative would have meant that only volume-filled container will be the same the lot stamping requirements for the RPC five down Euro containers as that in the tray-packed container. returnable plastic containers under the would have been subject to the When the Stone Fruit Grade and Size marketing orders’ rules and regulations minimum regulated with a net weight of Subcommittee met, they discussed the that have been in effect for such 31 pounds, and exempted from the recent changes in the packing and

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marketing of Peento type peaches. When a longer period of time. This increased the availability of information within these varieties were first introduced and growing time not only improves the industry. marketed, they were generally tray- maturity, but also increases fruit size. Each of the recommended handling packed because they were a novel and Increased fruit size increases the requirement changes for the 2003 season premium product. As production has number of packed containers per acre, is expected to generate financial benefits increased, the value of the varieties has and coupled with heightened maturity for produces and handlers through diminished in the marketplace, and levels, also provides greater consumer increased fruit sales, compared to the some handlers have converted their satisfaction, fostering repeat purchases. situation that would exist if the changes tray-packed containers of Peento type Such improved consumer satisfaction were not adopted. Both large and small peaches to volume-filled containers. and repeat purchases benefit both entities are expected to benefit from the Weight-count standards provide a basis producers and handlers alike. changes, and the costs of compliance are for volume filling containers of other Annual adjustments to minimum not expected to be substantially varieties of peaches. Currently, Peento sizes of nectarines and peaches, such as different between large and small type peaches are regulated under a new these, are recommended by the NAC entities. table of weight-count standards and PCC based upon historical data, This rule does not impose any applicable to only these uniquely- producer and handler information additional reporting and recordkeeping shaped peaches. regarding sizes attained by different requirements on either small or large The staff continued to conduct varieties, and trends in consumer handlers. As with all Federal marketing weight-count studies during the 2002 purchases. order programs, reports and forms are season so that weight-count standards An alternative to such action would periodically reviewed to reduce could be perfected, thus ensuring that include not establishing minimum size information requirements and duplication by industry and public all handlers are handling a standard regulations for these new varieties. Such sector agencies. maximum number of peaches in a 16- an action, however, would be a pound sample. During the studies, the USDA has not identified any relevant significant departure from the Federal rules that duplicate, overlap, or staff learned that all available sizes of committees’ practices and represent a Peento type peaches were being packed conflict with this rule. However, as significant change in the regulations as previously stated, nectarines and in volume-filled containers, including they currently exist; would ultimately sizes for which there were not yet peaches under the orders have to meet increase the amount of less acceptable certain requirements set forth in the minimum weight-count standards. For fruit being marketed to consumers; and, that reason, modifications to Table 3 in standards issued under the Agricultural thus, would be contrary to the long-term paragraph (a)(5)(vi) of § 917.442 are Marketing Act of 1946 (7 CFR 1621 et interests of producers, handlers, and made to include additional sizes 30 and seq.). Standards issued under the consumers. For these reasons, this 32, which are larger-sized Peento Agricultural Marketing Act of 1946 are alternative was not recommended. peaches. otherwise voluntary. Sections 916.356 and 917.459 The committees make In addition, the committees’ meetings establish minimum maturity levels. This recommendations regarding all the are widely publicized throughout the rule makes annual adjustments to the revisions in handling and lot stamping nectarine and peach industry and all maturity requirements for several requirements after considering all interested parties are encouraged to varieties of nectarines and peaches. available information, including attend and participate in committee Maturity requirements are based on recommendations by various deliberations on all issues. These maturity measurements generally using subcommittees, comments of persons at meetings are held annually during the maturity guides (e.g., color chips), as subcommittee meetings, and comments last week of November or first week of recommended by Shipping Point received by committee staff. Such December. Like all committee meetings, Inspection. Such maturity guides are subcommittees include the Stone Fruit the December 3, 2002, meetings were reviewed annually by SPI to determine Grade and Size Subcommittee, the public meetings, and all entities, large the appropriate guide for each nectarine Inspection and Compliance and small, were encouraged to express and peach variety. These annual Subcommittee, and the Executive views on these issues. These regulations adjustments reflect refinements in Committee. were also reviewed and thoroughly measurements of the maturity At the meetings, the impact of and discussed at a subcommittee meeting characteristics of nectarines and alternatives to these recommendations held on November 6, 2002. Finally, peaches as experienced over previous are deliberated. These subcommittees, interested persons are invited to submit seasons’ inspections. Adjustments in the like the committees themselves, information on the regulatory and guides utilized ensure that fruit has met frequently consist of individual informational impacts of this action on an acceptable level of maturity, ensuring producers and handlers with many small businesses. consumer satisfaction while benefiting years’ of experience in the industry who A small business guide on complying nectarine and peach producers and are familiar with industry practices and with fruit, vegetable, and specialty crop handlers. trends. Like all committee meetings, marketing agreements and orders may Currently, in § 916.356 of the subcommittee meetings are open to the be viewed at the following Web site: nectarine order’s rule and regulations, public and comments are widely http://www.ams.usda.gov/fv/moab.html. and in § 917.459 of the peach order’s solicited. In the case of the Stone Fruit Any questions about the compliance rule and regulations, minimum sizes for Grade and Size Subcommittee, many guide should be sent to Jay Guerber at various varieties of nectarines and growers and handlers who are affected the previously mentioned address in the peaches, respectively, are established. by the issues discussed by the FOR FURTHER INFORMATION CONTACT This rule makes adjustments to the subcommittee attend and actively section. minimum sizes authorized for various participate in the public deliberations. This rule invites comments on varieties of nectarines and peaches for In addition, minutes of all changes to the handling requirements the 2003 season. Minimum size subcommittee meetings are distributed currently prescribed under the regulations are put in place to encourage to committee members and others who marketing orders for California fresh producers to leave fruit on the trees for have requested them, thereby increasing nectarines and peaches. Any comments

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received will be considered prior to with a Federal-State Inspection Service scars which exceed an aggregate area of finalization of this rule. lot stamp number, assigned by such a circle 3/8 inch in diameter, and After consideration of all relevant Service, showing that such fruit has nectarines larger than 2 inches in matters presented, the information and been USDA inspected in accordance diameter shall not have fairly light- recommendations submitted by the with § 916.55: Provided, That for the colored, fairly smooth scars which committees, and other information, it is period April 1 to October 31, 2003, exceed an aggregate area of a circle found that this interim final rule, as pallets of returnable plastic containers 1/2 inch in diameter: Provided further, hereinafter set forth, will tend to shall have the lot stamp numbers affixed That an additional tolerance of 25 effectuate the declared policy of the Act. to each pallet with a USDA-approved percent shall be permitted for fruit that Pursuant to 5 U.S.C. 553, it is also pallet tag, in addition to the lot stamp is not well formed but not badly found and determined, upon good numbers and other required information misshapen: Provided further, That all cause, that it is impracticable, on cards on the individual containers. varieties of nectarines which fail to meet unnecessary, and contrary to the public ■ 3. Section 916.350 is amended by: the U.S. No. 1 grade only on account of interest to give preliminary notice prior ■ A. Revising paragraph (a)(1); lack of blush or red color due to varietal to putting this rule into effect, and that ■ B. Revising paragraph (a)(8); and characteristics shall be considered as good cause exists for not postponing the ■ C. Revising paragraph (d) to read as meeting the requirements of this effective date of this rule until 30 days follows: subpart: Provided further, That during after publication in the Federal Register § 916.350 California nectarine container the period April 1 through October 31, because: (1) California nectarine and and pack regulation. 2003, any handler may handle peach producers and handlers should be (a) * * * nectarines if such nectarines meet ‘‘CA apprised of this rule as soon as possible, (1) Such nectarines, when packed in Utility’’ quality requirements. The term since shipments of these fruits are any closed package or container, except ‘‘CA Utility’’ means that not more than expected to begin in early April; (2) this master containers of consumer 40 percent of the nectarines in any rule relaxes grade requirements for packages, individual consumer container meet or exceed the nectarines and peaches; (3) the packages, and five down Euro requirements of the U.S. No. 1 grade, committees unanimously recommended containers, shall conform to the except that when more than 30 percent these changes at public meetings and requirements of standard pack: of the nectarines in any container meet interested persons had opportunities to Provided, That nectarines in any such or exceed the requirements of the U.S. provide input at these meetings; and (4) volume-filled container need only be No. 1 grade, the additional 10 percent the rule provides a 60-day comment filled to within one-inch of the top of shall have non-scoreable blemishes as period, and any written comments the container. determined when applying the U.S. timely received will be considered prior Standards for Grades of Nectarines; and * * * * * to any finalization of this interim final that such nectarines are mature and are: (8) Each five down Euro container of rule. loose-filled nectarines shall bear on one * * * * * List of Subjects outside end in plain sight and in plain (iv) * * * letters the words ‘‘31 pounds net 7 CFR Part 916 weight.’’ TABLE 1 Marketing agreements, Nectarines, * * * * * Column B Reporting and recordkeeping (d) During the period April 1 through Column A variety maturity requirements. October 31, 2003, each container or guide 7 CFR Part 917 package when packed with nectarines meeting the ‘‘CA Utility’’ quality Alshir Red ...... J Marketing agreements, Peaches, Pears, April Glo ...... H requirements, shall bear the words ‘‘CA August Glo ...... L Reporting and recordkeeping Utility,’’ along with all other required requirements. August Lion ...... J container markings, in letters at least August Red ...... J ■ 3 For the reasons set forth in the pre- ⁄8 inch in height on the visible display Aurelio Grand ...... F amble, 7 CFR parts 916 and 917 are panel. Consumer bags or packages must Autumn Delight ...... L amended as follows: also be clearly marked on the consumer Autumn Grand ...... L ■ 1. The authority citation for 7 CFR bags or packages as ‘‘CA Utility,’’ along Big Jim ...... J parts 916 and 917 continues to read as with all other required markings, in Diamond Bright ...... J follows: letters at least 3/8 inch in height. Diamond Jewel ...... L Diamond Ray ...... L Authority: 7 U.S.C. 601–674. ■ 4. Section 916.356 is amended by: Earliglo ...... I ■ A. Revising paragraph (a)(1) introduc- Early Diamond ...... J PART 916—NECTARINES GROWN IN tory text; Early May ...... F CALIFORNIA ■ B. Revising Table 1; and Early May Grand ...... H ■ C. Revising the introductory text of Early Red Jim ...... J ■ 2. Section 916.115 is revised to read as paragraphs (a)(3), (a)(4), and (a)(6) to read Early Sungrand ...... H follows: as follows: Fairlane ...... L Fantasia ...... J § 916.115 Lot stamping. § 916.356 California nectarine grade and Firebrite ...... H Except when loaded directly into size regulation. Fire Sweet ...... J railway cars, exempted under § 916.110, (a) * * * Flame Glo ...... L Flamekist ...... L or for nectarines mailed directly to (1) Any lot or package or container of Flaming Red ...... K consumers in consumer packages, all any variety of nectarines unless such Flavortop ...... J exposed or outside containers of nectarines meet the requirements of U.S. Grand Diamond ...... L nectarines, and not less than 75 percent No. 1 grade: Provided, That nectarines 2 Gran Sun ...... L of the total containers on a pallet, shall inches in diameter or smaller, shall not Honey Blaze ...... J be plainly stamped, prior to shipment, have fairly light-colored, fairly smooth Honey Kist ...... I

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TABLE 1—Continued TABLE 1—Continued § 917.150 Lot stamping. Except when loaded directly into Column B Column B railway cars, exempted under § 917.143, Column A variety maturity Column A variety maturity or for peaches mailed directly to guide guide consumers in consumer packages, all Honey Royale ...... J Tom Grand ...... L exposed or outside containers of Independence ...... H Zee Glo ...... J peaches, and not less than 75 percent of July Red ...... L Zee Grand ...... I the total containers on a pallet, shall be June Brite ...... I plainly stamped, prior to shipment, Juneglo ...... H Note: Consult with the Federal or Federal- State Inspection Service Supervisor for the with a Federal-State Inspection Service Kay Diamond ...... L maturity guides applicable to the varieties not lot stamp number, assigned by such King Jim ...... L listed above. Service, showing that such fruit has Kism Grand ...... J Late Le Grand ...... L * * * * * been USDA inspected in accordance Late Red Jim ...... J (3) Any package or container of with § 917.45: Provided, That for the Mango ...... B Mayglo variety of nectarines on or after period April 1 through November 23, May Diamond ...... I May 6 of each year, or Crimson Baby, 2003, pallets of returnable plastic May Fire ...... H Earliglo, Early Diamond, Grand Sun, or containers shall have the lot stamp Mayglo ...... H May Kist variety nectarines unless: numbers affixed to each pallet with a May Grand ...... H * * * * * USDA-approved pallet tag, in addition May Jim ...... I to the lot stamp numbers and other May Kist ...... H (4) Any package or container of Arctic May Lion ...... J Rose, Arctic Star, Diamond Bright, required information on cards on the Mid Glo ...... L Juneglo, June Pearl, Kay Glo, Kay Sweet, individual containers. Moon Grand ...... L May Diamond, May Grand, Prima ■ 5. Section 917.442 is amended by: Niagra Grand ...... H Diamond IV, Prima Diamond VI, Prima ■ A. Revising paragraph (a)(1); ■ P-R Red ...... L Diamond XIII, Prince Jim, Prince Jim 1, B. Revising Table 3; Prince Jim ...... L ■ Red Delight, Red Glo, Red Roy, Rose C. Revising paragraph (a)(9); and Prima Diamond XIII ...... L ■ D. Revising paragraph (d) to read as fol- Diamond, Royal Glo, Sparkling May, Red Delight ...... I lows: Red Diamond ...... L White Sun, or Zee Grand variety Red Fred ...... J nectarines unless: § 917.442 California peach container and Red Free ...... L * * * * * pack regulation. Red Glen ...... J (6) Any package or container of Alta (a) * * * Red Glo ...... I Red, Arctic Blaze, Arctic Ice, Arctic Jay, (1) Such peaches, when packed in any Red Grand ...... H Arctic Mist, Arctic Pride, Arctic Queen, closed package or container, except Red Jewel ...... L Red Jim ...... L Arctic Snow (White Jewel), Arctic master containers of consumer Red May ...... J Sweet, August Glo, August Lion, August packages, individual consumer Rio Red ...... L Pearl, August Red, August Snow, Big packages, and five down Euro Rose Diamond ...... J Jim, Bright Pearl, Bright Sweet, Candy containers, shall conform to the Royal Delight ...... F Gold, Candy Sweet, Diamond Ray, Early requirements of standard pack: Royal Giant ...... I Red Jim, Firebrite, Fire Pearl, Fire Provided, That peaches in any such Royal Glo ...... I Sweet, Flame Glo, Flaming Red, Grand volume-filled container need only be Ruby Diamond ...... L Diamond, Grand Pearl, Grand Sweet, filled to within one-inch of the top of Ruby Grand ...... J Honey Blaze, Honey Kist, Honey Royale, the container. Ruby Sun ...... J Ruby Sweet ...... J July Pearl, July Red, June Lion, Kay * * * * * Scarlet Red ...... K Pearl, King Jim, Late Red Jim, P-R Red, (5) * * * September Free ...... J Prima Diamond IX, Prima Diamond (iv) * * * September Grand ...... L XVIII, Prima Diamond XIX, Prima September Red ...... L Diamond XXIV, Prima Diamond XXVIII, TABLE 3.—WEIGHT-COUNT STAND- Sheri Red ...... J Red Diamond, Red Glen, Red Jim, Regal ARDS FOR PEENTO TYPE PEACHES Sparkling June ...... L Pearl, Regal Red, Royal Giant, Ruby ACKED IN OOSE ILLED OR IGHT Sparkling May ...... J P L -F T - Diamond, Ruby Pearl, Ruby Sweet, FILLED CONTAINERS Sparkling Red ...... L Scarlet Red, September Bright (26P– Spring Bright ...... L Spring Diamond ...... L 490), September Free, September Red, Column Spring Ray ...... L Sparkling June, Sparkling Red, Spring B— Spring Sweet ...... J Bright, Spring Sweet, Summer Blush, Maximum Column A— Tray pack size number of Spring Red ...... H Summer Bright, Summer Diamond, designation peaches Star Brite ...... J Summer Fire, Summer Grand, Summer in a 16- Summer Beaut ...... H Jewel, Summer Lion, Summer Red, pound Summer Blush ...... J Sunburst, Sun Diamond, Sunny Red, sample Summer Bright ...... J Sun Valley Sweet, Sweet White, Terra Summer Diamond ...... L White, or Zee Glo variety nectarines 80 ...... 140 Summer Fire ...... L 72 ...... 128 Summer Grand ...... L unless: 70 ...... 111 Summer Lion ...... L * * * * * 64 ...... 99 Summer Red ...... L 60 ...... 93 Sunburst ...... J PART 917—FRESH PEARS AND 56 ...... 87 Sun Diamond ...... I PEACHES GROWN IN CALIFORNIA 54 ...... 80 Sunecteight (Super Star) ...... G 50 ...... 77 Sun Grand ...... G ■ 5. Section 917.150 is revised to read as 48 ...... 74 Sunny Red ...... J follows: 44 ...... 70

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TABLE 3.—WEIGHT-COUNT STAND- term ‘‘CA Utility’’ means that not more TABLE 1—Continued ARDS FOR PEENTO TYPE PEACHES than 40 percent of the peaches in any PACKED IN LOOSE-FILLED OR TIGHT- container meet or exceed the Column B Column A variety maturity FILLED CONTAINERS—Continued requirement of the U.S. No. 1 grade, except that when more than 30 percent guide Column of the peaches in any container meet or Earlitreat ...... H B— exceed the requirements of U.S. No. 1 Early Delight ...... H Maximum grade, the additional 10 percent shall Early Elegant Lady ...... L Column A— Tray pack size number of have non-scoreable blemishes as Early May Crest ...... H designation peaches Early O’Henry ...... I in a 16- determined when applying the U.S. pound Standards for Grades of Peaches; and Early Top ...... G sample that such peaches are mature and are: Elberta ...... B Elegant Lady ...... L * * * * * Fairtime ...... G 42 ...... 68 (iv) The Federal or Federal-State 40 ...... 59 Fancy Lady ...... J 36 ...... 53 Inspection Service shall make the final Fay Elberta ...... C 34 ...... 50 determinations on maturity through the Fire Red ...... I 32 ...... 39 use of color chips or other tests as First Lady ...... D 30 ...... 32 determined appropriate by the Flamecrest ...... I inspection agency. The Federal or Flavorcrest ...... G * * * * * Federal-State Inspection Service will Flavor Queen ...... H Flavor Red ...... G (9) Each five down Euro container of use the maturity guides listed in Table Franciscan ...... G loose-filled peaches shall bear on one 1 in making maturity determinations for Goldcrest ...... H outside end in plain sight and in plain the specified varieties when inspecting Golden Princess ...... L letters the words ‘‘31 pounds net to the ‘‘well matured’’ level of maturity. Honey Red ...... G weight.’’ For these varieties, not less than 90 Joanna Sweet ...... J * * * * * percent of any lot shall meet the color John Henry ...... J July Elberta ...... C (d) During the period April 1 through guide established for the variety, and an aggregate area of not less than 90 June Lady ...... G November 23, 2003, each container or June Pride ...... J package when packed with peaches percent of the fruit surface shall meet Kern Sun ...... H meeting ‘‘CA Utility’’ quality the color guide established for the Kingscrest ...... H requirements, shall bear the words ‘‘CA variety, except that for the Joanna Sweet Kings Lady ...... I Utility,’’ along with all other required variety of peaches, any of the fruit Kings Red ...... I container markings, in letters at least 3⁄8 surface that is not red shall meet the Lacey ...... I inch in height on the visible display color guide established for the variety, Lady Sue ...... L panel. Consumer bags or packages must including any color noted in the stem Late Ito Red ...... L Madonna Sun ...... J also be clearly marked on the consumer cavity. For varieties not listed, the Federal or Federal-State Inspection Magenta Queen ...... J bags or packages as ‘‘CA Utility,’’ along May Crest ...... G with all other required markings, in Service will use such tests as it deems May Sun ...... I letters at least 3⁄8 inch in height. proper. A variance for any variety from Merrill Gem ...... G ■ 7. Section 917.459 is amended by: the application of the maturity guides Merrill Gemfree ...... G ■ A. Revising the introductory text of specified in Table 1 may be granted Morning Lord ...... J paragraph (a)(1); during the season to reflect changes in O’Henry ...... I Pacifica ...... G ■ B. Revising the introductory text of crop, weather, or other conditions that would make the specified guides an Pretty Lady ...... J paragraph (a)(1)(iv); Prima Gattie 8 ...... L ■ C. Revising Table 1; and inappropriate measure of ‘‘well matured.’’ Prima Gattie 10 ...... J ■ D. Revising the introductory text of Queencrest ...... G paragraphs (a)(3), (a)(5), and (a)(6) to read Ray Crest ...... G TABLE 1 as follows: Red Dancer (Red Boy) ...... I Redhaven ...... G § 917.459 California peach grade and size Column B Red Lady ...... G regulation. Column A variety maturity Redtop ...... G guide (a) * * * Regina ...... G (1) Any lot or package or container of Angelus ...... I Rich Lady ...... J any variety of peaches unless such August Lady ...... L Rich May ...... H Autumn Flame ...... J Rich Mike ...... H peaches meet the requirements of U.S. Rio Oso Gem ...... I No. 1 grade: Provided, That an Autumn Gem ...... I Autumn Lady ...... H Royal Lady ...... J additional 25 percent tolerance shall be Autumn Red ...... J Royal May ...... G permitted for fruit with open sutures Autumn Rose ...... H Ruby May ...... H which are damaged, but not seriously Blum’s Beauty ...... G Ryan Sun ...... I damaged: Provided further, That Brittney Lane ...... J September Flame ...... I peaches of the Peento type shall be Cal Red ...... I September Sun ...... I permitted a 10 percent tolerance for Carnival ...... I Sierra Crest ...... H healed, non-serious, blossom-end Cassie ...... H Sierra Lady ...... I Sparkle ...... I growth cracks: Provided further, That Coronet ...... E Crimson Lady ...... J Sprague Last Chance ...... L during the period April 1 through Crown Princess ...... J Springcrest ...... G November 23, 2003, any handler may David Sun ...... I Spring Delight ...... G handle peaches if such peaches meet Diamond Princess ...... J Spring Lady ...... H ‘‘CA Utility’’ quality requirements. The Earlirich ...... H Springtreat ...... I

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TABLE 1—Continued Jewel, Snow King, Snow Princess, Washington, DC 20250–0237; telephone: Sprague Last Chance, Spring Gem, (202) 720–2491, Fax: (202) 720–8938. Column B Sugar Giant, Sugar Lady, Summer Small businesses may request Column A variety maturity Dragon, Summer Lady, Summer Sweet, information on complying with this guide Summer Zee, Supechfour (Amber Crest), regulation by contacting Jay Guerber, Summer Lady ...... L Sweet Dream, Sweet Gem, Sweet Kay, Marketing Order Administration Summerset ...... I Sweet September, Tra Zee, Vista, White Branch, Fruit and Vegetable Programs, Summer Zee ...... L Lady, Zee Lady, or 24–SB variety AMS, USDA, 1400 Independence Suncrest ...... G peaches unless: Avenue SW., STOP 0237, Washington, Supechfour (Amber Crest) ...... G * * * * * DC 20250–0237; telephone: (202) 720– Super Rich ...... H 2491, Fax: (202) 720–8938, or e-mail: Sweet Dream ...... J Dated: April 3, 2003. [email protected]. Sweet Gem ...... J A.J. Yates, Sweet Mick ...... J Administrator, Agricultural Marketing SUPPLEMENTARY INFORMATION: This final Sweet Scarlet ...... J Service. rule is issued under Marketing Topcrest ...... H [FR Doc. 03–8650 Filed 4–4–03; 1:33 pm] Agreement and Order No. 993, both as Tra Zee ...... J amended (7 CFR part 993), regulating BILLING CODE 3410–02–P Vista ...... J the handling of dried prunes produced Willie Red ...... G Zee Lady ...... L in California, hereinafter referred to as DEPARTMENT OF AGRICULTURE the ‘‘order.’’ The order is effective under Note: Consult with the Federal or Federal- the Agricultural Marketing Agreement State Inspection Service Supervisor for the Act of 1937, as amended (7 U.S.C. 601– maturity guides applicable to the varieties not Agricultural Marketing Service listed above. 674), hereinafter referred to as the 7 CFR Part 993 ‘‘Act.’’ * * * * * The Department of Agriculture (3) Any package or container of Snow [Docket No. FV02–993–3 FR] (USDA) is issuing this rule in Kist or Super Rich variety peaches conformance with Executive Order unless: Dried Prunes Produced in California; 12866. * * * * * Revising the Regulations Pertaining to This rule has been reviewed under (5) Any package or container of a Voluntary Prune Plum Diversion Executive Order 12988, Civil Justice Babcock, Bev’s Red, Brittney Lane, Program Reform. This rule is not intended to Crimson Lady, Crown Princess, David have retroactive effect. This rule will Sun, Early May Crest, Flavorcrest, AGENCY: Agricultural Marketing Service, not preempt any State or local laws, Happy Dream, June Lady, Kern Sun, USDA. regulations, or policies, unless they Kingscrest, Magenta Queen, May Crest, ACTION: Final rule. present an irreconcilable conflict with May Sun, May Sweet, Pink Rose, Prima this rule. SUMMARY: Peach IV, Queencrest, Ray Crest, This rule changes the The Act provides that administrative Redtop, Rich May, Rich Mike, Snow administrative rules and regulations proceedings must be exhausted before Brite, Snow Prince, Springcrest, Spring pertaining to a voluntary prune plum parties may file suit in court. Under Flame 21, Spring Lady, Spring Snow, diversion program under the California section 608c(15)(A) of the Act, any Springtreat (60EF32), Sugar May, Sunlit prune marketing order (order). The handler subject to an order may file Snow (172LE81), Sweet Scarlet, Zee order regulates the handling of dried with USDA a petition stating that the Diamond, 012–094, or 172LE White prunes produced in California and is order, any provision of the order, or any Peach (Crimson Snow/Sunny Snow) administered by the Prune Marketing obligation imposed in connection with variety peaches unless: Committee (Committee). The changes the order is not in accordance with law * * * * * made reflect changes in industry and request a modification of the order (6) Any package or container of structure and current economic or to be exempted therefrom. A handler August Flame, August Lady, Autumn conditions, and modify administrative is afforded the opportunity for a hearing Flame, Autumn Red, Autumn Rose, procedures used in connection with on the petition. After the hearing, USDA Autumn Snow, Cassie, Coral Princess, implementing a diversion program. will rule on the petition. The Act Country Sweet, Diamond Princess, These changes will provide for more provides that the district court of the Earlirich, Early Elegant Lady, Elegant timely and efficient implementation of a United States in any district in which Lady, Fairtime, Fancy Lady, Fay Elberta, diversion program if recommended in the handler is an inhabitant, or has his Flamecrest, Full Moon, Henry II, Ivory the future. or her principal place of business, has Princess, Jillie White, Joanna Sweet, EFFECTIVE DATE: This final rule becomes jurisdiction to review USDA’s ruling on John Henry, July Flame, June Flame, effective May 9, 2003. the petition, provided an action is filed June Pride, Kaweah, Kings Lady, FOR FURTHER INFORMATION CONTACT: not later than 20 days after the date of Klondike, Late Ito Red, O’Henry, Pink Richard P. Van Diest, Marketing the entry of the ruling. Giant, Pretty Lady, Prima Gattie 8, Specialist, California Marketing Field This final rule revises the Prima Peach 13, Prima Peach XV, Prima Office, Marketing Order Administration administrative rules and regulations Peach 20, Prima Peach 23, Prima Peach Branch, Fruit and Vegetable Programs, pertaining to a voluntary prune plum XXV, Prima Peach XXVII, Princess AMS, USDA, 2202 Monterey Street, diversion program under the California Gayle, Queen Lady, Red Dancer, Red suite 102B, Fresno, California 93721; prune marketing order (order). The Giant, Rich Lady, Royal Lady, Ryan telephone: (559) 487–5901, Fax: (559) order regulates the handling of dried Sun, Saturn (Donut), Scarlet Snow, 487–5906; or George Kelhart, Technical prunes produced in California and is September Flame, September Snow, Advisor, Marketing Order administered by the Committee. The September Sun, Sierra Gem, Sierra Administration Branch, Fruit and changes made reflect changes in Lady, Snow Beauty, Snow Blaze, Snow Vegetable Programs, AMS, USDA, 1400 industry structure and current economic Fall, Snow Gem, Snow Giant, Snow Independence Avenue SW., STOP 0237, conditions, and modify administrative

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procedures used in connection with non-French prunes, the dryaway ratio is Section 993.162(a) of the regulations implementing a diversion program. established at 3.5 pounds of plums for currently contains reference to 13 These changes will also provide for one pound of non-French prunes for the counties that no longer produce prunes. more timely and efficient entire production area. Prune production has shifted within the implementation if a diversion program The dryaway ratios can change from production area over the years. Thus, is needed in the future. These changes year to year depending upon weather the Committee recommended updating were unanimously recommended by the conditions, fruit maturity at time of the prune producing regions and Committee at a meeting on November harvest, fruit solids and other factors. condensing them into fewer regions. 29, 2001. The dryaway ratios used in the early The regions used in determining dried 1970’s are no longer valid. Expanding weight equivalents for a diversion Volume Regulation Authority production together with limited program in § 993.162(a) will be Section 993.54 of the order provides dehydration capacity has forced some realigned as follows: authority for volume control in the form growers to begin harvesting earlier and of reserve pooling. Volume control continue later than in the past. This has French Prunes regulation is designed to promote resulted in dryaway ratios higher than —North Sacramento Valley—The orderly marketing conditions, stabilize those currently specified. Because of counties of Butte, Glenn, Shasta, and prices and supplies, and improve this, and to provide more flexibility, the Tehama. producer returns. When volume Committee recommended removing the —South Sacramento, Napa, Sonoma, regulation is in effect, a certain specific dryaway ratios for non-French and Santa Clara Valleys and the percentage of the California prune crop prunes from § 993.162(a) of the counties of Amador, Colusa, Lake, may be sold by handlers to any market regulations and adding language that Placer, Solano, Sutter, Yolo, Yuba, (salable or free tonnage) while the will allow the Committee to compute Napa, Sonoma, San Benito, and Santa remaining percentage must be held by dryaway ratios for the applicable Clara. handlers in a reserve pool (or reserve) producing regions based on a survey of —San Joaquin Valley—The counties for the account of the Committee. at least eight commercial prune of Fresno, Kern, Kings, Madera, Merced, Reserve prunes are disposed of through dehydrators geographically dispersed San Joaquin, Stanislaus, and Tulare. various programs authorized under the within the production area. This final rule also will allow the order. Net proceeds generated from sales When the Committee believes a Committee to assign any new counties of reserve prunes are distributed to the diversion program is needed, the of production to one of these three reserve pool’s equity holders, primarily Committee will obtain annual average regions or remove counties when producers. dryaway ratios from commercial production ceases. When prune acreage dehydrators surveyed and compute a ceases to exist in a county, the Diversion Program Authority five-year average dryaway ratio for each Committee will remove that county The order also provides authority dehydrator. The Committee will then from the existing production region, under § 993.62 for prune producers to add together the participating with the approval of the Secretary, and participate in a voluntary prune plum commercial dehydrators’ five-year announce the removal to the industry. diversion program when a reserve pool average dryaway ratios for each In like manner, if there were new is implemented. Under this program, producing region within the production producing counties within the State, the prune producers can elect to divert part area, and divide the total dryaway ratio Committee will, with the approval of of their prune plum crop from normal by the number of participating the Secretary, be allowed to assign them prune or prune product markets in lieu commercial dehydrators to obtain each to one of the existing regions based on of placing prunes in a reserve pool. year’s average dryaway ratio by geographic proximity and/or Section 993.62 also authorizes producing region. In the event any of production/dehydration characteristics, establishment of rules and regulations to the annual dryaway ratios for any of the instead of listing the counties in the implement and administer a diversion crop years are abnormally high or low rules and regulations. These program. in any year, the Committee could assignments also will be announced to Section 993.162 contains the rules replace the abnormal year’s data with the industry. This process will allow the and regulations necessary for governing that of an earlier year. After the Committee to make timely changes to the implementation of a diversion computations are made, the resulting the producing regions so they reflect the program. ratios will be announced and current industry situation. Section commercial dehydrators will be notified 993.162(a) is modified to reflect these Prune Marketing Committee by letter prior to the beginning of any changes. Recommendations crop year in which reserve pooling and The region for non-French prunes will Because a diversion program has not a diversion program was being continue to include all counties within been implemented since the 1970’s, the contemplated. This will result in more the production area because specific administrative rules and regulations accurate dryaway ratios in determining information on growing regions within contain several outdated provisions. the dried weight equivalent of fresh the State is not maintained. Section 993.162(a) of the regulations prune plums being diverted. Section 993.162(b) of the regulations currently establishes specific dryaway No change to the dryaway ratio for currently establishes the following ratios by producing regions within the non-French prunes was recommended. eligible diversion methods: (1) production area. Dryaway ratios Production of these prunes is small Disposing of harvested prune plums represent the ratio of the weight of fresh (0.06 percent of total prune production), under Committee supervision for prune plums needed to produce dried little data is available, and it is believed nonhuman use at a location and in a prunes, and are the basis for computing that the currently listed ratio of 3.5 to manner satisfactory to the Committee; the dried weight equivalent of diverted 1 is accurate. and (2) Leaving unharvested the entire fresh prune plums. The ratios range As previously mentioned, dryaway production of prune plums from a solid from 2.6 to 3.25 pounds of fresh plums ratios for French prunes are calculated block of bearing trees designated by the to make a pound of French prunes, and applied to various producing producer applying for the diversion. depending on the producing region. For regions within the production area. This final rule will specifically

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reference the removal of prune plum the fees. Section 993.162(c) is modified be considered small handlers. An trees prior to harvest as an eligible to reflect these changes. estimated 32 producers, or less than 3 diversion method. In the past, it has The Committee also recommended percent of the 1,205 total producers, been determined that removing trees changes to § 993.162(d) of the would be considered large growers with will qualify as unharvested production regulations. This section includes annual receipts over $750,000. The under the existing regulations. However, criteria for approving diversion majority of handlers and producers of the Committee recommended adding applications and establishes fees in California dried prunes may be clarifying language to the regulations to connection with modifying classified as small entities. USDA does ensure that the removal of trees will applications. The changes will remove not have precise numbers on the total qualify as an eligible diversion method. reference to specific fees and allow the number of commercial dehydrators in A final change to § 993.162(b) will Committee to apply fees consistent with the industry or their size. However, it require the Committee to conduct a the process regarding deposit fees. The may be assumed that many may be meeting prior to the beginning of any changes also will increase the service considered small under SBA criteria. crop year in which a diversion program charge for modifying applications from Under § 993.62 of the order, when was being contemplated to determine $1 to $2 per ton to reflect current volume control in the form of a reserve which diversion method or methods administrative costs. Section 993.162(d) pool is implemented, prune producers may be used, and announce the eligible is modified accordingly. can elect to divert part of their prune diversion method(s) to the industry. The rules and regulations pertaining plum crop from normal markets in lieu Section 993.162(b) is modified to reflect to implementing a prune diversion of placing prunes in a reserve pool. these changes. program were developed in the 1970’s, Section 993.162 contains the To participate in the diversion and several provisions are outdated. administrative rules and regulations program, producers must file an These changes are designed to bring the necessary to administer a diversion application with the Committee. Section rules and regulations in line with the program. This rule will revise those 993.162(c) of the regulations currently present California prune industry regulations. requires that when a producer applies practices. The changes also provide for One of the changes will remove for the diversion program, a deposit fee flexibility in years when reserve pooling references in the regulations to establish shall accompany the application. The and a diversion program are dryaway ratios for prune plums of the deposit fees established in the current implemented. French variety. Dryaway ratios are used regulations are as follows: For each to determine the dried weight Final Regulatory Flexibility Analysis producer application, the fee shall be equivalent of fresh prune plums the greater of either $100 or the amount Pursuant to requirements set forth in diverted from normal markets. Because obtained by multiplying the quantity, in the Regulatory Flexibility Act (RFA), the these dryaway ratios are outdated, the tons, of prune plums to be diverted by Agricultural Marketing Service (AMS) Committee recommended replacing $3.50. For commercial dehydrators has considered the economic impact of them by a process that will allow the acting as an agent for a group of four or this rule on small entities. Accordingly, Committee to compute and announce more producers, the fee shall be the AMS has prepared this final regulatory current dryaway ratios based on a greatest of either $200 or the amount flexibility analysis. survey of commercial dehydrators. obtained by multiplying the aggregate The purpose of the RFA is to fit Surveying commercial prune quantity in tons of prune plums to be regulatory actions to the scale of dehydrators will impose a minor diverted by the group by $3.50. The business subject to such actions in order information collection burden on such deposit fees charged to diverting that small businesses will not be unduly entities. It is estimated that between 8 growers were intended to finance the or disproportionately burdened. and 15 commercial dehydrators will be Committee’s administrative costs for the Marketing orders issued pursuant to the requested to furnish information on entire diversion program with any Act, and rules issued thereunder, are their annual average dryaway ratios to excess monies to be refunded on a unique in that they are brought about the Committee, and that it will take prorate basis to participants. Because of through group action of essentially approximately 15 minutes to furnish the changed economics since these fees small entities acting on their own information. The total estimated annual were established in the 1970’s, the behalf. Thus, both statutes have small burden of collecting this information is deposit fees established in the entity orientation and compatibility. estimated to be 225 minutes (3 hours regulations will not currently cover There are approximately 1,205 and 45 minutes) for the industry. these costs. The Committee, therefore, producers of dried prunes in the However, the Committee believes that recommended revising the regulations production area and approximately 24 the burden to complete a commercial to provide that whenever a diversion handlers subject to regulation under the dehydrator dryaway ratio survey will be program is implemented, the Committee marketing order. Small agricultural outweighed by obtaining and using shall, with the approval of the Secretary, producers are defined by the Small updated dryaway ratio data for French compute and announce the deposit fees Business Administration (13 CFR prunes when dryaway ratios are used to associated with filing applications for 121.201) as those having annual receipts determine the dried weight equivalent the diversion program. The deposit fees of less than $750,000, and small of fresh prune plums diverted from will be announced to the industry, agricultural service firms are defined as normal markets. instead of specifying the deposit fees in those whose annual receipts are less Another change will update the prune the rules and regulations. It is intended than $5,000,000. producing regions to which the dryaway that the computed fees will reflect An updated industry profile shows ratios for French prunes are applied, Committee administrative costs that 9 out of 24 handlers (37.5 percent) and allow the Committee to update the associated with administering a shipped over $5,000,000 worth of dried areas based on current production diversion program whenever such a prunes and could be considered large information. Dryaway ratios vary from program is recommended. handlers by the Small Business area to area, and prune production shifts These changes will allow flexibility in Administration. Fifteen of the 24 over time. Another change will specify the regulations by allowing the handlers (62.5 percent) shipped under in the regulatory text that tree removal Committee to compute and announce $5,000,000 worth of prunes and could is an acceptable diversion method, and

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that the Committee may determine, with was to update the data on dryaway public meetings widely publicized the approval of the Secretary, and ratios, prune producing regions, and throughout the prune industry. All announce which method(s) of diversion diversion application charges through interested persons, both large and small, may be used whenever a program is informal rulemaking the next time a were invited to attend the subcommittee implemented. Another change will diversion program was considered, and Committee meetings and participate remove from the regulations outdated rather than changing to a formula or in the industry’s deliberations. deposit fees for diversion program survey procedure as stated herein. This A proposed rule concerning this participants and authorize the alternative was not recommended action was published in the Federal Committee to compute such fees based because the Committee believed that Register on October 28, 2002, (67 FR on current program administration this final rule would provide for more 65732). Copies of this rule were mailed costs. flexibility in administering a future or sent via facsimile to all Committee The changes to the prune producing diversion program. members, alternates and dried prune regions, addition of acceptable diversion This action will allow the Committee handlers. Finally, the Office of the methods, and the Committee’s authority to survey commercial prune dehydrators Federal Register and USDA made the to determine which methods of to estimate costs applicable to drying rule available through the Internet. The diversion are to be used are not prune plums. The reporting and record rule provided a comment period that expected to have a significant impact on keeping burdens are necessary for ended December 27, 2002. No growers or handlers, either small or compliance purposes and for comments were received. Accordingly, large. These changes will update the developing statistical data to administer no changes will be made to the rule as regulations to reflect changes in the a future program. This rule will impose proposed. industry and to facilitate administration some additional reporting or A small business guide on complying and implementation of a voluntary recordkeeping requirements on both with fruit, vegetable, and specialty crop diversion program, if recommended in small and large California prune plum marketing agreements and orders may the future. commercial dehydrators. It is estimated be viewed at: http://www.ams.usda.gov/ The changes regarding deposit fees that between 8 and 15 commercial fv/moab.html. Any questions about the will allow the Committee to collect dehydrators will be requested to furnish compliance guide should be sent to Jay charges from diversion program information on their annual average Guerber at the previously mentioned participants that reflect actual dryaway ratios to the Committee, and address in the FOR FURTHER INFORMATION administrative costs incurred by the that it will take an average of 15 minutes CONTACT section. Committee. The fees specified in the per response to furnish this information. After consideration of all relevant regulations are outdated and will not The total estimated annual burden of matter presented, including the cover the Committee’s actual costs if a collecting this information is estimated information and recommendation diversion program was needed to be to be 225 minutes (3 hours and 45 submitted by the Committee and other implemented in the future. These minutes) for the industry. However, the available information, it is hereby found changes will help to ensure that the Committee believes that the burden to that this rule, as hereinafter set forth, growers participating in a future complete a commercial dehydrator will tend to effectuate the declared diversion program will pay the dryaway ratio survey will be policy of the Act. administrative costs of the program, as outweighed by obtaining and using specified in § 993.62(g) of the order. updated dryaway ratio data for French List of Subjects in 7 CFR Part 993 Because growers participating in a prunes when dryaway ratios are used to Marketing agreements, Plums, Prunes, diversion program are the beneficiaries determine the dried weight equivalent Reporting and recordkeeping of the program, it is appropriate that of fresh prune plums from normal requirements. they pay the administrative fees of the markets. ■ For the reasons set forth in the pre- program. In addition, because the In accordance with the Paperwork amble, 7 CFR part 993 is amended as fol- diversion program is voluntary, growers Reduction Act of 1995 (44 U.S.C. lows: will determine individually whether the Chapter 35), AMS is seeking approval costs will outweigh the benefits prior to by the Office of Management and PART 993—DRIED PRUNES their participation. It is not known how Budget (OMB) for the additional burden PRODUCED IN CALIFORNIA many growers will participate in a imposed by the commercial dryaway ■ diversion program, since there has not ratio survey. Upon OMB approval, the 1. The authority citation for 7 CFR part been one implemented under the additional burden will be merged into 993 continues to read as follows: marketing order since the 1970’s. the information collection currently Authority: 7 U.S.C. 601–674. This final rule will be applied to approved under OMB No. 0581–0178, ■ 2. In § 993.162, paragraphs (a), (b), (c), small and large entities equally, Vegetable and Specialty Crop Marketing and (d) are revised to read as follows: regardless of size. The Committee Orders. As noted in the initial believes that these actions will benefit regulatory flexibility analysis, USDA § 993.162 Voluntary prune plum diversion. the prune industry by updating the has not identified any relevant Federal (a) Quantity to be diverted. The regulations to reflect changes in the rules that duplicate, overlap or conflict Committee shall indicate the quantity of industry, and by providing a process with this rule. As with all Federal prune plums that producers may divert that will facilitate timelier marketing order programs, reports and pursuant to § 993.62 whenever it implementation of a diversion program, forms are periodically reviewed to recommends to the Secretary that if recommended. reduce information requirements and diversion operations for a crop year be The Committee discussed alternatives duplication by industry and public permitted. Whenever diversion to this change on November 29, 2001, sector agencies. operation for a crop year have been including taking no action. However, In addition, the Committee’s Supply authorized by the Secretary, the that will leave any future diversion Management Subcommittee meeting on Committee shall notify producers, program a less viable supply November 28, 2001, and the Committee commercial dehydrators, and handlers, management tool due to outdated meeting on November 29, 2001, where known to it of such authorization and program elements. Another alternative this action was deliberated, were both diversion program procedures. The

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Committee shall compute the dried non-French varieties is the State of (v) A deposit fee shall accompany weight equivalent of prune plums so California. each producer’s application to cover diverted on a dryaway basis as follows: (b) Eligible diversions. Eligible costs associated with processing the (1) For prune plums of the French diversions shall preclude prune plums application and administering the variety, the Committee shall survey at from becoming prunes and may include diversion program. The Committee shall least eight commercial prune the following methods: compute, with the approval of the dehydrators that are geographically (1) Disposing of harvested prune Secretary, and announce to the industry, dispersed within the production area to plums under Committee supervision for the deposit fee. The deposit fee obtain their annual dryaway ratios for nonhuman use at a location and in a announced shall be a set dollar amount each of the preceding five crop years, manner satisfactory to the Committee; or a per ton cost based on the tonnage and compute a five-year average (2) Leaving unharvested the entire to be diverted. The fee paid by the dryaway ratio for each dehydrator. The production of prune plums from a solid applicant shall be the greater of these Committee shall then add together the block of bearing trees designated by the amounts. participating commercial dehydrators’ producer applying for the diversion of (2) By dehydrator as agent. Any five-year average dryaway ratios for removing prune plum trees prior to producer, or group of producers, may each producing region within the harvest; and/or authorize a dehydrator to act as an agent production area, and divide the total by (3) Such other diversions as may be to divert harvested prune plums. Prior the number of participating commercial authorized by he Committee and to diversion such dehydrator shall dehydrators in that region to compute approved by the Secretary. submit to the Committee an application the dryaway ratio by producing region. (4) In accordance with § 993.62(c), on Form PMC 10.1 ‘‘Application for In the event any of the annual dryaway eligible diversion shall not apply to Prune Plum Diversion’’ for each ratios for any of the crop years is prune plums, which would not, under producer or group of producers under abnormally high or low in any year, the normal producer practices, be dried and contract with the dehydrator. A deposit Committee may replace the abnormal delivered to a handler. On or before July fee shall accompany each such year’s data with that of an earlier year. 20 of each crop year when the application to cover the costs associated The prune producing regions for which Committee recommends a reserve pool with processing the application and dryaway ratios shall be computed for and diversion program (except the administration of the program. With prune plums of the French variety are Committee with the approval of the respect to any group of four or more as follows: Secretary may extend this date by not producers under contract with a (i) North Sacramento Valley, which more than 10 business days if warranted dehydrator, the deposit fee for the group includes the counties of Butte, Glenn, by a late crop), the Committee shall shall be the greater of either double the Shasta, and Tehama; identify, with the approval of the single deposit fee, pursuant to (ii) South Sacramento, Napa, Sonoma, Secretary, the acceptable method(s) of paragraph (c)(1) of this section, or the and Santa Clara Valleys, which includes voluntary prune plum diversion through amount obtained by multiplying the the counties of Amador, Colusa, Lake, reasonable publicity to producers, total tonnage of prune plums to be Placer, Solano, Sutter, Yolo, Yuba, commercial dehydrators, handlers, and diverted by the group of producers Napa, Sonoma, San Benito, and Santa the cooperative bargaining covered in the dehydrator’s application Clara; and association(s). For the purposes of this times the per ton deposit rate (iii) San Joaquin Valley, which section, cooperative bargaining announced by the Committee pursuant includes the counties of Fresno, Kern, association means a nonprofit to (c)(1) of this section. Kings, Madera, Merced, San Joaquin, cooperative association of dried prune (3) Receipt of applications. The Stanislaus, and Tulare. producers engaged within the Committee shall establish, and give (A) New producing counties within production area in bargaining with prompt notice to the industry, a final the area. If there were new producing handlers as to price and otherwise date for receipt of applications for counties within the State of California, arranging for the sale of natural diversion: Provided, That the Committee the Committee will, with the approval condition dried prunes of its members. may extend such deadline if the total of the Secretary, assign the new prune (c) Applications for diversion. tonnage represented in all applications producing county or counties, as the (1) By producers. Each producer is substantially less than the total case may be, to one of the prune desiring to divert prune plums of his tonnage established by the Committee producing regions based on geographic own production shall, prior to pursuant to paragraph (a) of this section. proximity and/or production/ diversion, file with the Committee a (d) Approval of applications. No dehydration characteristics. The certified application on Form PMC 10.1 certificate of diversion shall be issued addition of a county or counties, as the ‘‘Application for Prune Plum Diversion’’ by the Committee unless it has case may be, to one of the producing containing at least the following approved the application covering such regions will be announced to the information: diversion. industry. (i) The name and address of the (1) The Committee’s approval of an (B) Removal of a county from a producer; whether the producer is an application shall be in writing, and production area. When prune acreage owner-operator, share-landlord, share- include at least the following: ceases to exist in a county, the tenant, or cash tenant; and the name and (i) The details as to the method of Committee will, with the approval of address of any other person or persons diversion to be followed; the Secretary, remove that county from sharing a proprietary interest in such (ii) The method of appraisal to be the existing region. Removal of a county prune plums; used by the Committee to determine the from a production region also will be (ii) The proposed method of diversion quantity of prune plums diverted; announced to the industry. and the location where the diversion is (iii) The lesser of either the quantity (2) For prune plums of the non- to take place; specified in the application to be French variety, the dryaway ratio shall (iii) The quantity and variety of prune diverted, or modification of that be 1 pound for each 3.50 pounds of plums proposed to be diverted; and quantity as a result of any Committee prune plums diverted. The prune- (iv) The approximate period of action to prorate the total quantity to be producing region for prune plums of diversion. diverted by all producers; and

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(iv) Such other information as may be authorized by the amendment in the NRCS will use an allocation formula necessary to assist the applicant in 2002 Act. to determine the amount of funds that meeting the requirements of this EFFECTIVE DATE: May 9, 2003. each state will receive that have been section, including the conditions for weighted to meet National objectives for ADDRESSES: proof of diversion. This rule may also be the AMA conservation program. The (2) If the Committee determines that accessed via Internet. Users can access formula used to determine allocation of it cannot approve an application it shall the Natural Resources Conservation funds to states consists of ranking notify the applicant promptly. The Service (NRCS) homepage at http:// factors of natural resource concerns. The Committee shall state the reason(s) for www.nrcs.usda.gov; select Farm Bill formula is similar in nature to ones that failing to approve the application, and 2002, and click on AMA Final rule. have been used for other NRCS request the applicant to submit, if FOR FURTHER INFORMATION CONTACT: conservation programs. practicable, an amended application Dave Mason, Program Manager, However, this formula is primarily correcting the deficiencies in the Conservation Operations Division, used to allocate funds to the states for original application. NRCS, P.O. Box 2890, Washington, DC practices that will mitigate a producer’s (3) The Committee shall establish, and 20013–2890, telephone: (202) 720–1873; risk of production through the give prompt notice to the industry of a fax: (202) 720–4265; e-mail: implementation of resource final date by which a producer or [email protected], Attention: conservation practices that reduce soil dehydrator may modify an approved Agricultural Management Assistance. erosion, utilize integrated pest application, including changing the SUPPLEMENTARY INFORMATION: management principles and assist method of diversion or the quantity of producers in transition to organic prune plums to be diverted: Provided, Discussion of Program farming based operations. Production That any such change shall include Section 2501 of the Farm Security and and marketing diversification is information on the location or quantity Rural Investment Act of 2002 (the 2002 enhanced by utilizing integrated pest of such diversion and shall be Act) amended section 524 of the Federal management principles by reducing and accompanied by a payment of a second Crop Insurance Act (7 U.S.C. 1524) to applying chemicals for production as deposit fee, calculated pursuant to permit CCC to fund the Agricultural needed. Producers who elect to paragraph (c)(1) or (c)(2), as applicable, Management Assistance (AMA) program eliminate chemical usage by converting of this section, plus a $2 per ton service at the amount of $20,000,000 for each of to organic farming will be able to charge for any increase in tonnage to be the fiscal years 2003 through 2007. provide products to a growing sector of diverted. Section 524(b) of the Federal Crop the American population whose daily (4) If an applicant cancels an Insurance Act of 2000, as amended by diet consists partially or totally of approved diversion application prior to section 133 of the Agricultural Risk organically produced food items. This allows producers to use marketing diversion, no part of the deposit fee Protection Act of 2000, authorized the diversification as a tool to enhance their shall be refunded, except upon approval AMA program. operations. AMA is targeted to 15 states by the Committee following review of As provided by section 524 of the all circumstances in the matter. that have been historically low in Federal Crop Insurance Act (7 U.S.C. participation in programs that provide * * * * * 1524), as amended by the 2002 Act, the opportunities for producers to Dated: April 3, 2003. funds, facilities, and authorities of the environmentally and financially Commodity Credit Corporation (CCC) A.J. Yates, implement conservation practices and are available to NRCS for carrying out marketing strategies to provide Administrator, Agricultural Marketing AMA. (The Chief of the NRCS is vice- Service. safeguards against the cyclic economic president of the CCC.) Accordingly, variances of the agricultural economy. [FR Doc. 03–8649 Filed 4–8–03; 8:45 am] where NRCS is mentioned in this rule, BILLING CODE 3410–02–P Other practices that producers may it also refers to the CCC’s funds, elect to implement include the facilities, and authorities where opportunity to construct or improve applicable. DEPARTMENT OF AGRICULTURE watershed management or irrigation The Commodity Credit Corporation structures and plant trees to form Commodity Credit Corporation (CCC) administers the funds under the windbreaks or improve water quality. general supervision of a Vice President Based on national program objectives 7 CFR Part 1465 of the CCC who is the Chief of the and state priorities and resource Natural Resources Conservation Service concerns, the State Conservationist in RIN 0578–AA31 (NRCS). These funds will be used conjunction with advice from the State Agricultural Management Assistance annually for cost share assistance to Technical Committee will determine Program producers in 15 States in which which practices are eligible for program participation in the Federal Crop payments. The practices must meet the AGENCY: Commodity Credit Corporation, Insurance Program is historically low. purposes set out in section 1465.1 of USDA. The 15 States include Connecticut, this rule. ACTION: Final rule. Delaware, Maine, Maryland, The State Conservationist or Massachusetts, Nevada, New designated conservationist with advice SUMMARY: This final rule implements Hampshire, New Jersey, New York, from the State Technical Committee and section 2501 of the Farm Security and Pennsylvania, Rhode Island, Utah, using a locally led process will rank and Rural Investment Act of 2002 (the 2002 Vermont, West Virginia, and Wyoming. select applications for contracting based Act) which amended section 524 of the The cost share assistance will encourage on the state-developed ranking criteria Federal Crop Insurance Act which and assist producers in the selected and ranking process. The NRCS permits CCC to fund the Agricultural States to adopt natural resources representative will work with the Management Assistance (AMA) conservation practices and investment applicant to collect the necessary program. This final rule describes how strategies that will reduce or mitigate information to evaluate the application NRCS intends to implement AMA as risks to their agricultural enterprises. using the ranking criteria.

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Executive Order 12866 this rulemaking action on State, local, 1465.32 Access to operating unit. 1465.33 Performance based upon advice or Pursuant to Executive Order 12866 and tribal governments, and the public. This action does not compel the action of representatives of NRCS. (58 FR 51735, October 4, 1993), the 1465.34 Offsets and assignments. Office of Management and Budget has expenditure of $100 million or more by any State, local, or tribal governments, 1466.35 Misrepresentation and scheme or determined that this final rule is not a device. significant regulatory action. or anyone in the private sector; therefore a statement under section 202 of the Authority: 7 U.S.C. 1524(b), 16 U.S.C. Regulatory Flexibility Act Unfunded Mandates Reform Act of 1995 3801. The Regulatory Flexibility Act is not is not required. Subpart A—General Provisions applicable to this rule because NRCS is Federal Crop Insurance Reform and not required by 5 U.S.C. 553 or any Department of Agriculture § 1465.1 Purposes and applicability. other provision of law to publish a Reorganization Act of 1994 Through the Agricultural notice of proposed rulemaking with Management Assistance (AMA) respect to the subject matter of this rule. USDA classified this final rule as ‘‘not program, the NRCS provides financial major’’ under section 304 of the assistance funds annually to producers Environmental Analysis Department of Agriculture in 15 statutorily designated states to Reorganization Act of 1994, Pub. L. NRCS has determined through an construct or improve water management 104–354. Therefore, a risk assessment is Environmental Assessment (EA) for the structures or irrigation structures; to not required. Agricultural Management Assistance plant trees to form windbreaks or to Program that the issuance of this final Discussion of Comments improve water quality; and to mitigate rule would not have a significant impact NRCS issued a proposed rule with risk through production diversification on the human environment. Copies of request for comments on August 28, or resource conservation practices, the Environmental Assessment and the 2002, in the Federal Register, Volume including soil erosion control, Finding of No Significant Impact may be 67, Number 167, Pages 55171–55175. integrated pest management, or obtained from Dave Mason, One comment was received during transition to organic farming. The AMA Conservation Operations Division, the comment period on the proposed Program is applicable in Connecticut, Natural Resources Conservation Service, regulation. The commenter stated that Delaware, Maryland, Massachusetts, P.O. Box 2890, Washington, DC 20013– they were interested in organizing a Maine, Nevada, New Hampshire, New 2890. meeting with a group of farmers in Jersey, New York, Pennsylvania, Rhode Civil Rights Impact Analysis Illinois. Since the state of Illinois is not Island, Utah, Vermont, West Virginia, and Wyoming. NRCS has determined through a Civil eligible for participation in the program Rights Impact Analysis that the issuance and the comment was not directed to § 1465.2 Administration. of this final rule will not have a any section of the proposed rule, no changes were made to the rule. (a) Administration and significant effect on minorities. Copies implementation of the conservation of the Civil Rights Impact Analysis and List of Subjects in 7 CFR Part 1465 provisions of AMA Program for the CCC Finding of No Significant Impact may be Conservation contract, Conservation is assigned to the Natural Resources obtained from Dave Mason, plan, Conservation practices, Soil and Conservation Service (NRCS). The Farm Conservation Operations Division, water conservation. Service Agency (FSA) is responsible for Natural Resources Conservation Service, ■ ‘person’ determinations under P.O. Box 2890, Washington, DC 20013– Accordingly, Title 7 of the Code of § 1465.23(c) and making cost-share 2890. Federal Regulations is amended by payments. adding a new part 1465 to read as fol- Paperwork Reduction Act (b) NRCS will: lows: (1) Provide overall management and Section 2702 (b)(1)(A) of the 2002 Act implementation leadership for the AMA exempts the promulgation of regulations PART 1465—AGRICULTURAL MANAGEMENT ASSISTANCE Program; and the administration of the AMA from (2) Establish policies, procedures, the requirements of the Paperwork Subpart A—General Provisions priorities, and guidance for Reduction Act. Sec. implementation; Executive Order 12988 1465.1 Purposes and applicability. (3) Establish cost-share payment 1465.2 Administration. limits; This final rule has been reviewed in 1465.3 Definitions. (4) Determine eligible practices; accordance with Executive Order 12988. 1465.4 Program requirements. (5) Develop and approve conservation The provisions of this final rule are not 1465.5 Conservation practices. plans and contracts with selected retroactive. Furthermore, the provisions Subpart B—Contracts participants; of this final rule preempt State and local (6) Provide technical leadership for laws to the extent such laws are 1465.20 Applications for participation and selecting applications for contracting. implementation, quality assurance, and inconsistent with this final rule. Before 1465.21 Contract requirements. evaluation of performance; and an action may be brought in a Federal 1465.22 Conservation practice operation (7) Make funding decisions and court of competent jurisdiction, the and maintenance. determine allocations of AMA funds. administrative appeal rights afforded 1465.23 Cost-share payments. (c) FSA will: persons at 7 CFR parts 614, 780 and 11 1465.24 Contract modification, extension, (1) Determine ‘person’ and producer must be exhausted. and transfer of land. eligibility; and 1465.25 Contract violations and (2) Make cost-share payments for Unfunded Mandates Reform Act of termination. practices completed. 1995 Subpart C—General Administration § 1465.3 Definitions. Pursuant to Title II of the Unfunded 1465.30 Appeals. Mandates Reform Act of 1995, Public 1465.31 Compliance with regulatory The following definitions apply to Law 104–4, NRCS assessed the effects of measures. this part and all documents issued in

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accordance with this part, unless anticipated or actual harm caused by the (2) Have control of the land for the life specified otherwise: breach, and reflects the difficulties of of the proposed contract period, except Applicant means an agricultural proof of loss and the inconvenience or that: producer who has requested in writing non-feasibility of otherwise obtaining an (i) An exception may be made by the to participate in the AMA Program. adequate remedy. Chief in the case of land allotted by the Producers who are members of a joint Operation and maintenance means Bureau of Indian Affairs (BIA), tribal operation shall be considered one work that is to be performed by the land, or other instances in which the applicant. participant to keep the applied Chief determines that there is sufficient Chief means the Chief of NRCS, or conservation practice functioning for assurance of control; or designee. the intended purpose during its life (ii) If the applicant is a tenant of the Conservation district means a political span. Operation includes the land involved in agricultural production subdivision of a State, Indian tribe, or administration, management, and the applicant shall provide NRCS with territory, organized pursuant to the State performance of non-maintenance the written concurrence of the or territorial soil conservation district actions needed to keep the completed landowner in order to apply an eligible law, or tribal law. The subdivision may practice safe and functioning as practice(s); be a conservation district, soil intended. Maintenance includes work to (3) Submit an application form CCC– conservation district, soil and water prevent deterioration of the practice, 1200; conservation district, resource repairing damage, or replacement of the (4) Supply information as required by conservation district, natural resource practice to its original condition if one NRCS to determine eligibility for the district, land conservation committee, or or more components fail. AMA Program; and similar legally constituted body. Participant means a producer who is (5) States, political subdivisions, and Conservation plan means a record of a party to an AMA contract. entities thereof will not be persons the participant’s decisions, and Producer means a person who is eligible for payment. Any cooperative supporting information, for treatment of engaged in agricultural production. association of producers that markets a unit of land or water, and includes the Secretary means the Secretary of the commodities for producers shall not be schedule of operations, activities, and United States Department of considered to be a person eligible for estimated expenditures needed to solve Agriculture. payment. identified natural resource concerns. State Conservationist means the (d) Land may only be considered for Conservation practice means a NRCS employee authorized to direct enrollment in the AMA program if specified treatment, such as a structural and supervise NRCS activities in a State, NRCS determines that the land is: or vegetative practice or a land the Caribbean Area, or the Pacific Basin (1) Privately owned land; management practice, which is planned Area. (2) Publicly owned land where: and applied according to NRCS State Technical Committee means a (i) The land is under private control standards and specifications. for the contract period and is included Contract means a legal document that committee established by the Secretary in a State pursuant to 16 U.S.C. 3861. in the participant’s operating unit; specifies the rights and obligations of (ii) Conservation practices will any person who has been accepted for Technical assistance means the personnel and support resources needed contribute to an improvement in the participation in the AMA Program. identified natural resource concern; and Cost-share payment means the to conduct conservation practice survey, layout, design, installation, and (iii) The participant has provided financial assistance from NRCS to the NRCS with written authorization from participant to share the cost of installing certification; training and providing quality assurance for professional the government landowner to apply the eligible practices. conservation practices; or Designated conservationist means an conservationists; and evaluation and (3) The land is federally recognized NRCS employee whom the State assessment of the AMA Program. Tribal, BIA allotted, or Indian trust land. conservationist has designated as Unit of concern means a parcel of responsible for administration of the agricultural land that has natural § 1465.5 Conservation practices. AMA Program. resource conditions that are of concern (a) The State Conservationist, with Indian tribe means any Indian tribe, to the participant. advice from the State Technical band, nation, or other organized group § 1465.4 Program requirements. Committee, will determine the or community which is recognized as (a) Participation in the AMA Program conservation practices eligible for AMA eligible for the special assistance and Program payments. To be considered services provided by the United States is voluntary. The participant, in cooperation with the local conservation eligible conservation practices, the to Indians because of their status as practices must meet the purposes of the Indians. district, applies for practice installation for the farm or ranching unit of concern. AMA as set out in § 1465.1. Indian trust lands means real property (b) The conservation plan includes in which the United States holds title as The NRCS provides cost-share payments through contracts to apply needed the schedule of operations, activities, trustee for an Indian or tribal and estimated expenditures of the beneficiary, or a Indian or tribal conservation practices within a time schedule specified in the contract. practices needed to solve identified beneficiary holds title and the United natural resource concerns. States maintains a trust relationship. (b) The Chief determines the funds Life-span means the minimum time available for financial assistance Subpart B—Contracts period in which the conservation according to the purpose and projected practices are to be maintained and used cost for which the financial assistance is § 1465.20 Applications for participation for their intended purpose. provided in a fiscal year. The Chief and selecting applications for contracting. Liquidated damages means a sum of allocates the funds available to carry out (a) Any producer who has eligible money stipulated in the contract that the AMA Program. land may submit an application for the participant agrees to pay if the (c) To be eligible to participate in the participation in the AMA Program at a participant breaches the contract. The AMA Program, an applicant must: USDA service center. Producers who are sum represents an estimate of the (1) Be an agricultural producer; members of a joint operation shall file

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a single application for the joint conservation practices consistent with from any contracts on the inherited land operation. the provisions of § 1465.22; and cause an heir, who was party to an AMA (b) NRCS will accept applications (5) Any other provision determined Program contract on other lands prior to throughout the year. The State necessary or appropriate by NRCS. the inheritance, to exceed the annual Conservationist will distribute (c) The participant must apply the limit. information on the availability of practice(s) according to the schedule set (iii) With regard to contracts on tribal assistance and the state-specific goals. out in the contract or conservation plan. land, Indian trust land, or BIA allotted Information will be provided that land, payments exceeding one explains the process to request § 1465.22 Conservation practice operation limitation may be made to the tribal and maintenance. assistance. venture if an official of the BIA or tribal (c) The State Conservationist, with The contract will incorporate the official certifies in writing that no one advice from the State Technical operation and maintenance of the person directly or indirectly will receive Committee, will develop ranking criteria conservation practice(s) applied under more than the limitation. and a ranking process to select the contract. The participant must (iv) The status of an individual or applications, taking into account local operate and maintain the conservation entity on the date of the application and state priorities. practice(s) for its intended purpose for shall be the basis on which the (d) The State Conservationist or the life span of the conservation determination of the number of persons designated conservationist with advice practice, as identified in the contract or involved in the farming operation is from the State Technical Committee and conservation plan, as determined by made. using a locally led process will rank and NRCS. NRCS may periodically inspect (d) The participant and NRCS must select applications for contracting based the conservation practices during the certify that a conservation practice is on the state-developed ranking criteria life span of the practices as specified in completed in accordance with the and ranking process. the contract to ensure that operation and contract before NRCS will approve the (e) The State Conservationist or maintenance is occurring. payment of any cost-share payment. designated conservationist will work § 1465.23 Cost-share payments. with the applicant to collect the § 1465.24 Contract modification, information necessary to evaluate the (a)(1) The Federal share of cost-share extension, and transfer of land. application using the ranking criteria. payments to a participant will be 75 (a) The participant and NRCS may percent of the actual cost of an eligible modify a contract if the participant and § 1465.21 Contract requirements. practice. In no instance shall the total NRCS agree to the contract (a) In order for a participant to receive financial contributions for an eligible modification. cost-share payments, the participant practice from all public and private (b) Contracts that run less than ten shall enter into a contract agreeing to entity sources exceed 100 percent of the years may be extended for up to the 10- implement eligible conservation actual cost of the practice. year limit in order for the participant to practices. (2) Participants may contribute their complete the practices scheduled in the (b) An AMA contract will: portion of the costs of practices through contract, if such extension is requested (1) Incorporate by reference all in-kind contributions, including labor by the participant before the contract portions of a unit applicable to the AMA and materials, providing the materials expires. Program; contributed meet the NRCS standards (c) The parties may mutually agree to (2) Be for a duration of 3 to 10 years; and specifications for the practice being transfer a contract to a new participant. (3) Incorporate all provisions as installed. The transferee must be determined by required by law or statute, including (3) Cost-share payments will not be NRCS to be eligible to participate in the participant requirements to: made to a participant who has applied AMA Program and shall assume full (i) Not conduct any practices on the or initiated the application of a responsibility under the contract, farm or ranch unit of concern that conservation practice prior to approval including operation and maintenance of would tend to defeat the purposes of the of the contract. those conservation practices already contract according to § 1465.25; (b) The total amount of cost-share installed and to be installed as a (ii) Refund any AMA Program payments paid to a person under this condition of the contract. payments received with interest, and part may not exceed $50,000 for any (d) NRCS may require a participant to forfeit any future payments under the fiscal year. refund all or a portion of any assistance AMA Program, on the violation of a (c) For purposes of applying the earned under the AMA Program if the term or condition of the contract, payment limitations provided for in this participant sells or loses control of the consistent with the provisions of section, NRCS will use the provisions in land under an AMA Program contract § 1465.25; 7 CFR part 1400 related to the definition and the new owner or controller is not (iii) Refund all AMA Program of a ‘‘person’’and the limitation of eligible to participate in the AMA payments received on the transfer of the payments, except that: Program or refuses to assume right and interest of the producer in (i) The provisions in part 1400, responsibility under the contract. land subject to the contract, unless the subpart C for determining whether transferee of the right and interest agrees persons are actively engaged in farming, § 1465.25 Contract violations and to assume all obligations of the contract, subpart E for limiting payments to termination. consistent with the provisions of certain cash rent tenants, and subpart F (a)(1) If NRCS determines that a § 1465.24; and as the provisions apply to determining participant is in violation of the terms (iv) Supply information as required by whether foreign persons are eligible for of a contract or documents incorporated NRCS to determine compliance with the payment, will not apply. by reference into the contract, NRCS contract and requirements of the AMA (ii) With respect to land under an will give the participant a reasonable Program. AMA Program contract which is time, as determined by the State (4) Specify the participant’s inherited during the contract period, the Conservationist, to correct the violation requirements for operation and $50,000 fiscal year limitation will not and comply with the terms of the maintenance of the applied apply to the extent that the payments contract and attachments thereto. If a

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participant continues in violation, the decision under the AMA Program in § 1465.34 Offsets and assignments. State Conservationist may terminate the accordance with parts 11 and 614 of this (a) Except as provided in paragraph AMA Program contract. title, except as provided in paragraph (b) (b) of this section, any payment or (2) Notwithstanding the provisions of of this section. portion thereof to any person shall be paragraph (a)(1) of this section, a (b) The following decisions are not made without regard to questions of title contract termination shall be effective appealable: immediately upon a determination by (1) Payment rates, payment limits, under State law and without regard to the State Conservationist that the and cost-share percentages; any claim or lien against the crop, or participant has submitted false (2) Funding allocations; proceeds thereof, in favor of the owner information or filed a false claim, or (3) Eligible conservation practices; or any other creditor except agencies of engaged in any act for which a finding and the United States Government. The of ineligibility for payments is permitted (4) Other matters of general regulations governing offsets and under the provisions of § 1465.35, or in applicability, including: withholdings found in part 1403 of this a case in which the actions of the party (i) Technical standards and formulas; chapter shall be applicable to contract involved are deemed to be sufficiently (ii) Denial of assistance due to lack of payments. purposeful or negligent to warrant a funds or authority; or (b) Any producer entitled to any termination without delay. (iii) Science-based formulas and payment may assign any payments in (b)(1) If NRCS terminates a contract, criteria. accordance with regulations governing the participant shall forfeit all rights for assignment of payment found at part future payments under the contract and § 1465.31 Compliance with regulatory 1404 of this chapter. shall refund all or part of the payments measures. received, plus interest determined in Participants who carry out § 1465.35 Misrepresentation and scheme accordance with part 1403 of this conservation practices will be or device. chapter. The State Conservationist has responsible for obtaining the authorities, the option of requiring only partial rights, easements, or other approvals (a) A producer who is determined to refund of the payments received if the necessary for the implementation, have erroneously represented any fact State Conservationist determines that a operation, and maintenance of the affecting an AMA Program previously installed conservation conservation practices in keeping with determination made in accordance with practice can function independently, is applicable laws and regulations. this part shall not be entitled to contract not affected by the violation or other Participants will be responsible for payments and must refund to NRCS all conservation practices that would have compliance with all laws and for all payments, plus interest determined in been installed under the contract, and effects or actions resulting from the accordance with part 1403 of this the participant agrees to operate and participant’s performance under the chapter. contract. maintain the installed conservation (b) A producer’s interest in all practice for the life span of the practice. § 1465.32 Access to operating unit. contracts shall be terminated, and the (2) If NRCS terminates a contract due producer shall refund to NRCS all to breach of contract or the participant Any authorized NRCS representative payments, plus interest determined in voluntarily terminates the contract shall have the right to enter an operating accordance with part 1403 of this before any contractual payments have unit or tract for the purpose of chapter, received by such producer with been made, the participant shall forfeit ascertaining the accuracy of any all rights for further payments under the representations made in a contract or in respect to all contracts if it is contract and shall pay such liquidated anticipation of entering a contract, as to determined that the producer damages as are prescribed in the the performance of the terms and knowingly: contract. The State Conservationist will conditions of the contract. Access shall (1) Adopted any scheme or device have the option to waive the liquidated include the right to provide technical that tends to defeat the purpose of the damages depending upon the assistance, inspect any work undertaken AMA Program; under the contract and collect circumstances of the case. (2) Made any fraudulent (3) When making all contract information necessary to evaluate the representation; or termination decisions, NRCS may performance of conservation practices reduce the amount of money owed by in the contract. The NRCS (3) Misrepresented any fact affecting the participant by a proportion which representative will make a reasonable an AMA Program determination. effort to contact the participant prior to reflects the good faith effort of the Signed in Washington, DC, on March 28, the exercise of this provision. participant to comply with the contract, 2003. or the hardships beyond the § 1465.33 Performance based upon advice Bruce I. Knight, participant’s control that have or action of representatives of NRCS. Vice President, Commodity Credit prevented compliance with the contract. If a participant relied upon the advice (4) The participant may voluntarily Corporation, Chief, Natural Resources or action of any authorized Conservation Service. terminate a contract if NRCS agrees representative of NRCS, and did not based on NRCS’s determination that [FR Doc. 03–8452 Filed 4–8–03; 8:45 am] know or have reason to know that the termination is in the public interest. BILLING CODE 3410–16–P (5) In carrying out NRCS’s role in this action or advice was improper or section, NRCS may consult with the erroneous, the State Conservationist local conservation district. may accept the advice or action as meeting the requirements of the AMA Subpart C—General Administration Program and may grant relief, to the extent it is deemed desirable by NRCS, § 1465.30 Appeals. to provide a fair and equitable treatment (a) A participant may obtain because of the good-faith reliance on the administrative review of an adverse part of the participant.

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HEALTH AND HUMAN SERVICES of April 1, 2002, on page 63, § 172.615(a) is corrected in the table by Food and Drug Administration removing the first entry for ‘‘Pentaerythritol ester of gum or wood 21 CFR Part 172 rosin’’ and adding the following entry in its place: Food Additives Permitted for Direct Addition to Food for Human § 172.615 Chewing gum base. Consumption * * * * * CFR Correction (a) * * * In Title 21 of the Code of Federal Regulations, parts 170 to 199, revised as

Plasticizing Materials (Softeners)

******* Pentaerythritol ester of partially hydrogenated gum or wood rosin ...... Having an acid number of 7–18, a minimum drop-softening point of 102 °C, and a color of K or paler.

*******

[FR Doc. 03–55510 Filed 4–8–03; 8:45 am] Applicability date. For dates of 20224, and to the Office of Management BILLING CODE 1505–01–D applicability of these regulations, see and Budget, Attn: Desk Officer for the § 54.4980F–1, Q&A–18, of these Department of the Treasury, Office of regulations. Information and Regulatory Affairs, DEPARTMENT OF THE TREASURY FOR FURTHER INFORMATION CONTACT: Washington, DC 20503. Pamela R. Kinard at (202) 622–6060 or Books or records relating to this Internal Revenue Service Diane S. Bloom at (202) 283–9888 (not collection of information must be toll-free numbers). retained as long as their contents may become material in the administration 26 CFR Parts 1, 54, and 602 SUPPLEMENTARY INFORMATION: of any internal revenue law. Generally, [TD 9052] Paperwork Reduction Act tax returns and tax return information RIN 1545–BA08 The collection of information are confidential, as required by 26 contained in these final regulations has U.S.C. 6103. Notice of Significant Reduction in the been reviewed and approved by the Background Rate of Future Benefit Accrual Office of Management and Budget in This document contains amendments accordance with the Paperwork AGENCY: Internal Revenue Service (IRS), to 26 CFR parts 1, 54, and 602 under Reduction Act (44 U.S.C. 3507) under Treasury. section 4980F of the Code and section control number 1545–1780. Responses ACTION 204(h) of ERISA. Prior to 2001, section : Final regulations. to this collection of information are 204(h) of ERISA had no analogous SUMMARY: This document contains final required to obtain a benefit for a taxpayer who wants to amend a plan section in the Code, but pursuant to regulations providing guidance on the section 101(a) of the Reorganization notification requirements under section with an amendment that significantly reduces the rate of future benefit accrual Plan No. 4 of 1978, 29 U.S.C. 1001nt, 4980F of the Internal Revenue Code the Secretary of the Treasury has (Code) and section 204(h) of the or eliminates or significantly reduces an early retirement benefit or retirement- authority to issue regulations under Employee Retirement Income Security parts 2 and 3 of subtitle B of title I of Act of 1974 (ERISA). Under these final type subsidy. An agency may not conduct or ERISA, including section 204(h) of regulations, a plan administrator must sponsor, and a person is not required to ERISA. Under section 104 of the give notice of a plan amendment to respond to, a collection of information Reorganization Plan No. 4, the Secretary certain plan participants and unless the collection of information of Labor retains enforcement authority beneficiaries when the plan amendment displays a valid control number with respect to parts 2 and 3 of subtitle provides for a significant reduction in assigned by the Office of Management B of title 1 of ERISA, but, in exercising the rate of future benefit accrual or the and Budget. that authority, is bound by the elimination or significant reduction in The estimated annual burden per regulations issued by the Secretary of an early retirement benefit or respondent varies from 1 hour to 80 Treasury. On December 15, 1995, retirement-type subsidy. These final hours, depending on individual temporary regulations (TD 8631), under regulations affect retirement plan circumstances, with an estimated section 411(d)(6) of the Code were sponsors and administrators, average of 10 hours. published in the Federal Register (60 participants in and beneficiaries of Comments concerning the accuracy of FR 64320), providing guidance on retirement plans, and employee this burden estimate and suggestions for section 204(h) of ERISA. A notice of organizations representing retirement reducing this burden should be sent to proposed rulemaking (EE–34–95), cross- plan participants. the Internal Revenue Service, Attn: IRS referencing the temporary regulations DATES: Effective date. These regulations Reports Clearance Officer, was published in the Federal Register are effective on April 9, 2003. W:CAR:MP:T:T:SP, Washington, DC (60 FR 64401) on the same day. On

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December 14, 1998, final regulations 4980F and section 204(h), the future rate of the Code and section 204(h) of ERISA (TD 8795) addressing the notice of benefit accrual may be reduced for (section 204(h) notice) must be provided requirements under section 204(h) of some participants and increased for in accordance with the provisions of ERISA were published in the Federal others, including a separate but these regulations even though sections Register (63 FR 68678) and were similarly complex effect on future early 102(a) and 104(b) of ERISA also may codified in § 1.411(d)–6. The final retirement benefits. require that an SMM describing the plan regulations in this Treasury decision None of the examples illustrates rules amendment be furnished to participants remove Treasury regulation § 1.411(d)– in any other regulation or positions of covered under the plan and 6. Treasury or the IRS regarding provisions beneficiaries receiving benefits under Section 659 of the Economic Growth of the Internal Revenue Code other than the plan. The Department of Labor has and Tax Relief Reconciliation Act of the notice requirements of section advised the IRS that a plan 2001, Public Law 107–16 (115 Stat. 38) 4980F and section 204(h). Thus, the administrator who provides a section (EGTRRA) added section 4980F of the examples do not indicate any possible 204(h) notice to applicable individuals Code. Section 4980F imposes an excise outcome regarding proposed regulations in accordance with this final rule will tax when a plan administrator fails to that were published in the Federal be treated as having furnished those provide timely notice of plan Register (67 FR 76123) on December 11, individuals with an SMM regarding the amendments that provide for a 2002 relating to sections 411(b)(1)(H) section 204(h) amendment. The significant reduction in the rate of and 411(b)(2) of the Internal Revenue Department of Labor has also advised future benefit accrual. A reduction of an Code, which require that accruals or the IRS that furnishing the notice to the early retirement benefit or a retirement- allocations under certain retirement last known address of an individual type subsidy is also treated, for plans not cease or be reduced because would be sufficient for this purpose purposes of section 4980F of the Code, of the attainment of any age. where the plan utilizes a method of as a reduction in the rate of future Specifically, Treasury and the IRS are delivery described in 29 CFR benefit accrual. Section 659(b) of still considering comments received in 2520.104b–1 and the fiduciaries of the EGTRRA also amended section 204(h) of connection with those proposed plan have taken reasonable steps to keep ERISA to treat the elimination of an regulations, including comments plan records up-to-date and to locate early retirement benefit or a retirement- relating to cash balance pension plans, lost or missing participants. Finally, the type subsidy as a reduction in the rate and will only address the application of Department of Labor noted that the plan of future benefit accrual. The Job section 411(b)(1)(H) to cash balance administrator is required to satisfy any Creation and Worker Assistance Act of plans as part of the process to issue other requirements regarding the 2002, Public Law 107–147 (116 Stat. 21) regulations under sections 411(b)(1)(H). furnishing of SMMs or updated included certain technical corrections to summary plan descriptions, including, section 659 of EGTRRA. Explanation of Revisions and Summary for example, satisfaction of the On April 23, 2002, proposed of Comments requirement to furnish an SMM to any regulations under section 4980F of the A. Overview other participants covered under the Code and section 204(h) of ERISA were plan, and to beneficiaries receiving published in the Federal Register (67 Section 4980F of the Code and section benefits under the plan, who are FR 19713). On August 15, 2002, the IRS 204(h) of ERISA require notice of an entitled to an SMM regarding the held a public hearing on the proposed amendment to an applicable pension amendment. regulations. Written comments plan that either provides for a responding to the notice of proposed significant reduction in the rate of B. Conversion of a Money Purchase rulemaking were also received. After future benefit accrual or eliminates or Pension Plan into an Individual consideration of all the comments, the significantly reduces an early retirement Account Plan That is Not Subject to proposed regulations are adopted, as benefit or retirement-type subsidy. An Section 412 amended by this Treasury decision, and applicable pension plan is a defined Rev. Rul. 2002–42 (2002–28 I.R.B. 76), the regulations under § 1.411(d)–6 are benefit plan and any individual account provides that a conversion of a money removed. The revisions are discussed plan that is subject to the funding purchase pension plan into a profit- below. requirements of section 412 of the Code. sharing plan is considered a significant The regulations retain the overall The notice is required to be provided to reduction in the rate of future benefit structure of the proposed regulations participants and alternate payees for accrual under the money purchase and, like the proposed regulations, whom the amendment is reasonably pension plan, thus requiring notice include a number of examples expected to reduce significantly the rate under section 4980F of the Code and illustrating applicable rules. Some of the of future benefit accrual and to section 204(h) of ERISA. As stated in the examples show the information required employee organizations representing revenue ruling, allocations under the to be furnished in a section 204(h) those participants. The statute generally profit-sharing plan are not benefit notice, both as to amendments that requires the plan administrator to accruals under the money purchase result in a simple reduction in the provide the notice within a reasonable pension plan for purposes of future rate of benefit accrual and as to time before the effective date of the plan determining whether there is a those that result in more complex amendment. reduction in the rate of future benefit reductions. The most complex are A plan amendment that is subject to accrual. Accordingly, the final examples in which a defined benefit the notice requirements of section regulations clarify that a plan plan is amended to change 4980F of the Code and section 204(h) of amendment to convert a money prospectively the plan’s benefit accrual ERISA (section 204(h) amendment) may purchase pension plan into a profit- formula from a traditional formula to a be subject to additional reporting and sharing or any other individual account formula that bases future benefits on an disclosure requirements under title I of plan that is not subject to section 412 of account balance—commonly called a ERISA, such as the requirement to the Code (including a merger, conversion to a cash balance pension provide a summary of material consolidation, or transfer) is deemed to plan—with the result that, for purposes modifications (SMM) describing the be a plan amendment that provides for of the notice requirements of section amendment. Notice under section 4980F a significant reduction in the rate of

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future benefit accrual for purposes of notice is provided (or at the latest date information in the notice and allowing section 4980F of the Code and section for providing section 204(h) notice, if employers to effect changes in their 204(h) of ERISA. earlier), based on all relevant facts and plans for business reasons within a circumstances. An example to this effect reasonable time, and has been retained C. Rate of Future Benefit Accrual has been added to the final regulations. in the final regulations. Determined Annually A commentator requested clarification A commentator questioned the F. Definition of Early Retirement that section 204(h) notice may be provisions of the proposed regulations Benefits and Retirement-Type Subsidies provided before the adoption date of the under which the determination of A commentator stated that Treasury amendment. The commentator noted whether there is a reduction in the rate and IRS should issue regulations that neither section 4980F of the Code of future benefit accrual would be based defining the terms early retirement nor section 204(h) of ERISA prevents a on the whether the amendment is benefits and retirement-type subsidies. plan administrator from providing reasonably expected to reduce ‘‘the The commentator noted that there are section 204(h) notice before the benefits accruing for a year.’’ The numerous references to the terms early adoption date of the amendment. The commentator objected on the grounds retirement benefit or retirement-type regulations have not been revised to that this could require section 204(h) subsidy in both the Code (section reflect this suggestion because the notice for an amendment that increases 4980F(f)(3) and section 411(d)(6)(B)(i)), statute is already sufficiently clear that benefits in one year and then reduces ERISA (sections 204(g)(2)(A) and section 204(h) notice may be provided them in the next, even though the 204(h)(9)) and the regulations before the adoption of the amendment. aggregate benefit over the two years (§ 1.411(d)-4 and Proposed § 54.4980F– might not be reduced or might even be 1), but the terms are not defined. The H. Certification of Accuracy by Senior increased in the aggregate. The final commentator expressed concern that Officer regulations retain this rule, but clarify in adverse consequences might result from A commentator suggested that the an example that where a reduction an egregious failure to identify a regulations be revised to require that a occurs at the same time as an immediate significant reduction in early retirement senior officer of the plan sponsor or the increase in accrued benefits such that benefit or a retirement-type subsidy and plan administrator certify to employees the participant’s aggregate benefit can guidance has not been issued to clarify of the plan sponsor and the IRS that the never be less than what it would have the meaning of those terms. The disclosures in the section 204(h) notice been had the amendment not been definitions of Early retirement benefits accurately describe the effects of the adopted, the reduction is not significant. and retirement-type subsidies affect amendment and that the notice is more than determining whether an presented in a manner that is D. Reduction in the Rate of Future amendment requires a section 204(h) understandable to the average Benefit Accrual for Individual Account notice and, therefore, are beyond the applicable individual. The commentator Plans scope of these final regulations. also suggested that the senior officer A commentator suggested that the Treasury and IRS anticipate issuing should certify that the section 204(h) regulations be revised to clarify that proposed regulations under section notice provided to applicable only contributions or forfeitures that are 411(d)(6), including general guidance individuals does not contain any false allocated to a participant’s account be concerning early retirement benefits and or misleading information. The considered in determining whether a retirement-type subsidies. Comments commentator argued that this plan amendment to an individual regarding the anticipated proposed certification would not be burdensome account plan reduces the rate of future regulations were requested, including to plan sponsors if they have exercised benefit accrual. The commentator comments on the guidance that should due diligence concerning the content of recommended this revision to clarify be provided regarding early retirement the section 204(h) notice. Because of that an amendment reducing a benefits and retirement-type subsidies, concerns about the usefulness of such a contribution formula is not considered in Notice 2002–46 (2002–28 I.R.B. 96) rule as well as whether there is statutory insignificant solely because expected and Notice 2003–10 (2003–5 I.R.B. 369). authority for such a rule, this suggestion future investment returns might offset a has not been adopted. G. Timing of Notice portion of the reduction in the I. Determination and Effects of contribution formula. A clarification A number of comments addressed Egregious Failures that reflects this suggestion has been what constitutes a reasonable period for adopted in the final regulations. providing a section 204(h) notice. The A commentator suggested that the proposed regulations included a regulations revise the definition of an E. Determination of Applicable generally applicable 45-day advance egregious violation to distinguish Individuals notice rule with exceptions for between intentional and negligent acts A commentator suggested that the amendments in connection with certain of failure. The commentator stated that regulations be revised to clarify the date business transactions and small plans. it is possible that a trustee or plan as of which applicable individuals Some comments recommended that sponsor may make a decision not to should be identified. The commentator notice generally be required to be provide section 204(h) notice that the argued that the lack of a clear provided more than 45 days in advance trustee or plan sponsor thought was determination date would make it of the effective date of the section 204(h) prudent at the time but later determined difficult, from an administrative amendment and others recommended was a mistake. The commentator argued standpoint, for plans to identify that notice generally be allowed to be that these types of decisions, which may applicable individuals due to turnover provided less than 45 days in advance be negligent but not intentional, should among participants. The final of the effective date of the section 204(h) not be considered egregious failures. regulations provide that whether a plan amendment. The approach in the The commentator suggested that the participant or an alternate payee is an proposed regulations was designed to final regulations be revised to provide applicable individual is determined on strike a balance between providing that an egregious failure is an action a typical business day that is reasonably participants with sufficient time to resulting from a deliberate choice by the proximate to the time the section 204(h) understand and consider the plan sponsor, in which the plan sponsor

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knew or reasonably should have known K. Benefit Changes Made by Collective amendments with an effective date that that a section 204(h) notice would be Bargaining Agreements is on or after January 1, 2004. required. The commentator also A commentator suggested that the Special Analyses suggested that the final regulations be final regulations be revised to revised to provide that only applicable distinguish between a reduction in the It has been determined that this individuals who were adversely affected rate of future benefit accrual by Treasury decision is not a significant by the egregious failure be entitled to collective bargaining agreements and a regulatory action as defined in the greater of the old or new benefit reduction in the rate of future benefit Executive Order 12866. Therefore, a formulas. accrual by plan amendments. regulatory assessment is not required. It has also been determined that section Section 204(h)(6)(B) of ERISA Multiemployer plans often incorporate 553(b) of the Administrative Procedure generally defines an egregious failure as the provisions of related collective Act (5 U.S.C. chapter 5) does not apply a failure within the control of the plan bargaining agreements by reference. The to these regulations. sponsor that is either an intentional commentator argued that when the rate failure or a failure to provide most of the of future benefit accrual is being It is hereby certified that the individuals with most of the reduced by a change to a collective collection of information in these final information they are entitled to receive. bargaining agreement, section 204(h) regulations will not have a significant economic impact on a substantial Further, section 204(h)(6)(A) of ERISA notice is not required because there is number of small entities. This provides that, in the case of any no plan amendment relating to the reduction. The commentator suggested certification is based upon the fact that egregious failure to meet any that the final regulations include an small entities generally do not have very requirement of section 204(h) with example clarifying that in situations complex benefit structures in their respect to any plan amendment, the where there is an automatic benefit plans, or many different classes of provisions are applied so that all change that is linked to a collective participants who will be differently applicable individuals are entitled to bargaining agreement, section 204(h) affected by an amendment reducing the the greater of the benefits to which they notice is not required, or at a minimum rate of future benefit accrual. Small would have been entitled without that some relief be provided to allow the entities also have fewer employees, and regard to the amendment, or the benefits amendment to go into effect quickly. thus they are required to provide section under the plan with regard to the The IRS and Treasury believe that when 204(h) notice to fewer individuals. amendment. Accordingly, these a benefit formula in a plan document Accordingly, the time required to for suggestions were not adopted in the incorporates provisions of the collective them to prepare and provide section final regulations because they would bargaining agreement by reference, 204(h) notice will usually be modest. conflict with the plain language of those provisions are part of the plan. Furthermore, because most small section 204(h) of ERISA. Accordingly, the final regulations entities will only be affected when they amend the retirement plans they J. Content of Section 204(h) Notice provide a rule in Q&A–7(a)(2) that if all or a part of a plan’s rate of future benefit sponsor to reduce or eliminate benefits, Section 4980F of the Code and section accrual, or an early retirement benefit or and most small entities will not so 204(h) of ERISA require that section retirement-type subsidy provided under amend their retirement plans frequently, 204(h) notice be written in a manner the plan, depends on provisions in it is generally expected that most small calculated to be understood by the another document that are referenced in entities would be required to provide average plan participant and that it the plan document, a change in the section 204(h) notice only once over the provide sufficient information to allow provisions of the other document is an course of several years. Therefore, a applicable individuals to understand amendment of the plan. An example Regulatory Flexibility Analysis under the effect of the amendment. Q&A–11 of illustrating this rule has been added to the Regulatory Flexibility Act (5 U.S.C. these final regulations sets forth the the final regulations. chapter 6) is not required. content requirements for section 204(h) The IRS and Treasury recognize that Pursuant to section 7805(f) of the notice. The final regulations retain the multiemployer plans may need Code, the notice of proposed rulemaking additional time to comply with the basic structure of Q&A–11 in the preceding these final regulations was requirements of Q&A–7(a)(2) of these proposed regulations, but include a submitted to the Chief Counsel for final regulations, therefore the effective number of clarifications, including Advocacy of the Small Business date of this rule has been delayed until clarifying that the content must permit Administration for comment on its January 1, 2004. In addition, because of the applicable individual to determine impact on small business. the special characteristics of the approximate magnitude of the multiemployer plans (e.g., participating Drafting Information reduction applicable to that individual. employers are often small businesses The principal author of these The regulations provide that this with fewer than 100 employees), the requirement is deemed to be satisfied if regulations is Pamela R. Kinard, Office final regulations provide that, for a of Division Counsel/Associate Chief the notice includes illustrative examples multiemployer plan, section 204(h) satisfying certain conditions. At the Counsel (Tax Exempt and Government notice must be provided at least 15 days Entities), Internal Revenue Service. request of a commentator, the final before the effective date of any section regulations clarify that individualized However, personnel from other offices 204(h) amendment. of the Internal Revenue Service and benefit statements may be used in lieu Treasury Department participated in of illustrative examples if the statements Effective Date their development. include the same information as Except with respect to Q&A–7(a)(2), illustrative examples, such as showing these regulations are applicable to List of Subjects the approximate range of the reductions amendments with an effective date that 26 CFR Part 1 for the individual if the reductions vary is on or after September 2, 2003. over time and identification of the The provisions of Q&A–7(a)(2) of Income taxes, Reporting and assumptions used in the projections. these regulations are applicable to recordkeeping requirements.

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26 CFR Part 54 amendment is a section 204(h) (b) Other notice requirements. Other amendment? provisions of law may require that Excise taxes, Pensions, Reporting and Q–8. What is the basic principle used in recordkeeping requirements. certain parties be notified of a plan determining whether a reduction in the amendment. See, for example, sections 26 CFR Part 602 rate of future benefit accrual or a 102 and 104 of ERISA, and the reduction in an early retirement benefit Reporting and recordkeeping or retirement-type subsidy is significant regulations thereunder, for requirements requirements. for purposes of section 4980F and relating to summary plan descriptions and summaries of material Adoption of Amendments to the section 204(h)? Q–9. When must section 204(h) notice be modifications. Regulations provided? Q–2. What are the differences ■ Accordingly, 26 CFR parts 1, 54, and Q–10. To whom must section 204(h) notice between section 4980F and section 602 are amended as follows: be provided? 204(h)? Q–11. What information is required to be A–2. The notice requirements of PART 1—INCOME TAXES provided in a section 204(h) notice? section 4980F generally are parallel to Q–12. What special rules apply if the notice requirements of section ■ Paragraph 1. The authority citation for participants can choose between the old 204(h), as amended by the Economic part 1 continues to read in part as and new benefit formulas? Growth and Tax Relief Reconciliation follows: Q–13. How may section 204(h) notice be provided? Act of 2001, Public Law 107–16 (115 Authority: 26 U.S.C. 7805 * * * Q–14. What are the consequences if a plan Stat. 38) (2001) (EGTRRA). However, the consequences of the failure to satisfy the § 1.411(d)–6 [Removed] administrator fails to provide section 204(h) notice? requirements of the two provisions ■ Par. 2. Section 1.411(d)–6 is removed. Q–15. What are some of the rules that apply differ: Section 4980F imposes an excise with respect to the excise tax under tax on a failure to satisfy the notice PART 54—PENSION EXCISE TAXES section 4980F? requirements, while section 204(h)(6), Q–16. How do section 4980F and section as amended by EGTRRA, contains a ■ Par. 3. The authority citation for part 204(h) apply when a business is sold? special rule with respect to an egregious 54 is amended by adding the following Q–17. How are amendments to cease accruals failure to satisfy the notice citation in numerical order to read as and terminate a plan treated under requirements. See Q&A–14 and Q&A–15 follows: section 4980F and section 204(h)? Q–18. What are the effective dates of section of this section. Except to the extent Authority: 26 U.S.C. 7805 * * * 4980F, section 204(h), as amended by specifically indicated, these regulations Section 54.4980F–1 also issued under 26 EGTRRA, and these regulations? apply both to section 4980F and to U.S.C. 4980F.* * * section 204(h). Questions and Answers ■ Par. 4. Section 54.4980F–1 is added to Q–3. What is an ‘‘applicable pension read as follows: Q–1. What are the notice plan’’ to which section 4980F and requirements of section 4980F(e) of the section 204(h) apply? A–3. (a) In general. Section 4980F and § 54.4980F–1 Notice requirements for Internal Revenue Code and section certain pension plan amendments section 204(h) apply to an applicable 204(h) of ERISA? significantly reducing the rate of future pension plan. For purposes of section benefit accrual. A–1. (a) Requirements of Internal 4980F, an applicable pension plan The following questions and answers Revenue Code section 4980F(e) and means a defined benefit plan qualifying concern the notification requirements ERISA section 204(h). Section 4980F of under section 401(a) or 403(a) of the imposed by 4980F of the Internal the Internal Revenue Code (section Internal Revenue Code, or an individual Revenue Code and section 204(h) of 4980F) and section 204(h) of the account plan that is subject to the ERISA relating to a plan amendment of Employee Retirement Income Security funding standards of section 412 of the an applicable pension plan that Act of 1974, as amended (ERISA), 29 Internal Revenue Code. For purposes of significantly reduces the rate of future U.S.C. 1054(h) (section 204(h)) each section 204(h), an applicable pension benefit accrual or that eliminates or generally requires notice of an plan means a defined benefit plan that significantly reduces an early retirement amendment to an applicable pension is subject to part 2 of subtitle B of title benefit or retirement-type subsidy. plan that either provides for a I of ERISA, or an individual account significant reduction in the rate of plan that is subject to such part 2 and List of Questions future benefit accrual or that eliminates to the funding standards of section 412 Q–1. What are the notice requirements of or significantly reduces an early of the Internal Revenue Code. section 4980F(e) of the Internal Revenue retirement benefit or retirement-type Accordingly, individual account plans Code and section 204(h) of ERISA? subsidy. The notice is required to be that are not subject to the funding Q–2. What are the differences between provided to plan participants and standards of section 412 of the Internal section 4980F and section 204(h)? alternate payees who are applicable Revenue Code, such as profit-sharing Q–3. What is an ‘‘applicable pension plan’’ individuals (as defined in Q&A–10 of and stock bonus plans and contracts to which section 4980F and section 204(h) apply? this section) and to certain employee under section 403(b) of the Internal Q–4. What is ‘‘section 204(h) notice’’ and organizations. The plan administrator Revenue Code, are not applicable what is a ‘‘section 204(h) amendment’’? must generally provide the notice before pension plans to which section 4980F or Q–5. For which amendments is section the effective date of the plan section 204(h) apply. Similarly, a 204(h) notice required? amendment. Q&A–9 of this section sets defined benefit plan that neither Q–6. What is an amendment that reduces the forth the time frames for providing qualifies under section 401(a) or 403(a) rate of future benefit accrual or reduces notice, Q&A–11 of this section sets forth of the Internal Revenue Code nor is an early retirement benefit or retirement- the content requirements for the notice, subject to part 2 of subtitle B of title I type subsidy for purposes of determining whether section 204(h) notice is and Q&A–12 of this section contains of ERISA is not an applicable pension required? special rules for cases in which plan. Further, neither a governmental Q–7. What plan provisions are taken into participants can choose between the old plan (within the meaning of section account in determining whether an and new benefit formulas. 414(d) of the Internal Revenue Code),

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nor a church plan (within the meaning or reduces an early retirement benefit or an early retirement benefit or of section 414(e) of the Internal Revenue retirement-type subsidy for purposes of retirement-type subsidy only if it is Code) with respect to which no election determining whether section 204(h) reasonably expected that the has been made under section 410(d) of notice is required? amendment will eliminate or reduce an the Internal Revenue Code is an A–6. (a) In general. For purposes of early retirement benefit or retirement- applicable pension plan. determining whether section 204(h) type subsidy. (b) Section 204(h) notice not required notice is required, an amendment Q–7. What plan provisions are taken for small plans covering no employees. reduces the rate of future benefit accrual into account in determining whether an Section 204(h) notice is not required for or reduces an early retirement benefit or amendment is a section 204(h) a plan under which no employees are retirement-type subsidy only as amendment? participants covered under the plan, as provided in paragraph (b) or (c) of this A–7. (a) Plan provisions taken into described in § 2510.3–3(b) of the Q&A–6. account—-(1) In general. All plan Department of Labor regulations, and (b) Reduction in rate of future benefit provisions that may affect the rate of which has fewer than 100 participants. accrual—(1) Defined benefit plans. For future benefit accrual, early retirement Q–4. What is ‘‘section 204(h) notice’’ purposes of section 4980F and section benefits, or retirement-type subsidies of and what is a ‘‘section 204(h) 204(h), an amendment to a defined participants or alternate payees must be amendment’’? benefit plan reduces the rate of future taken into account in determining A–4. (a) Section 204(h) notice is benefit accrual only if it is reasonably whether an amendment is a section notice that complies with section expected that the amendment will 204(h) amendment. For example, plan 4980F(e) of the Internal Revenue Code, reduce the amount of the future annual provisions that may affect the rate of section 204(h)(1) of ERISA, and this benefit commencing at normal future benefit accrual include the dollar section. retirement age (or at actual retirement amount or percentage of compensation (b) A section 204(h) amendment is an age, if later) for benefits accruing for a on which benefit accruals are based; the amendment for which section 204(h) year. For this purpose, the annual definition of service or compensation notice is required under this section. benefit commencing at normal taken into account in determining an Q–5. For which amendments is retirement age is the benefit payable in employee’s benefit accrual; the method section 204(h) notice required? the form in which the terms of the plan of determining average compensation A–5. (a) Significant reduction in the express the accrued benefit (or, in the for calculating benefit accruals; the rate of future benefit accrual. Section case of a plan in which the accrued definition of normal retirement age in a 204(h) notice is required for an benefit is not expressed in the form of defined benefit plan; the exclusion of amendment to an applicable pension an annual benefit commencing at current participants from future plan that provides for a significant normal retirement age, the benefit participation; benefit offset provisions; reduction in the rate of future benefit payable in the form of a single life minimum benefit provisions; the accrual. annuity commencing at normal formula for determining the amount of (b) Early retirement benefits and retirement age that is the actuarial contributions and forfeitures allocated retirement-type subsidies. Section equivalent of the accrued benefit to participants’ accounts in an 204(h) notice is also required for an expressed under the terms of the plan, individual account plan; in the case of amendment to an applicable pension as determined in accordance with a plan using permitted disparity under plan that provides for the significant section 411(c)(3) of the Internal Revenue section 401(l) of the Internal Revenue reduction of an early retirement benefit Code). Code, the amount of disparity between or retirement-type subsidy. For (2) Individual account plans. For the excess benefit percentage or excess purposes of this section, early purposes of section 4980F and section contribution percentage and the base retirement benefit and retirement-type 204(h), an amendment to an individual benefit percentage or base contribution subsidy mean early retirement benefits account plan reduces the rate of future percentage (all as defined in section and retirement-type subsidies within benefit accrual only if it is reasonably 401(l) of the Internal Revenue Code); the meaning of section 411(d)(6)(B)(i). expected that the amendment will and the actuarial assumptions used to (c) Elimination or cessation of reduce the amount of contributions or determine contributions under a target benefits. For purposes of this section, forfeitures allocated for any future year. benefit plan (as defined in § 1.401(a)(4)– the terms reduce or reduction include Changes in the investments or 8(b)(3)(i) of this chapter). Plan eliminate or cease or elimination or investment options under an individual provisions that may affect early cessation. account plan are not taken into account retirement benefits or retirement-type (d) Delegation of authority to for this purpose. subsidies include the right to receive Commissioner. The Commissioner may (3) Determination of rate of future payment of benefits after severance from provide in revenue rulings, notices, or benefit accrual. The rate of future employment and before normal other guidance published in the Internal benefit accrual for purposes of this retirement age and actuarial factors used Revenue Bulletin (see § 601.601(d)(2) of paragraph (b) is determined without in determining optional forms for this chapter) that section 204(h) notice regard to optional forms of benefit distribution of retirement benefits. need not be provided for plan within the meaning of § 1.411(d)–4, (2) Provisions incorporated by amendments otherwise described in Q&A–1(b) of this chapter (other than the reference in plan. If all or a part of a paragraph (a) or (b) of this Q&A–5 that annual benefit described in paragraph plan’s rate of future benefit accrual, or the Commissioner determines to be (b)(1) of this Q&A–6). The rate of future an early retirement benefit or necessary or appropriate, as a result of benefit accrual is also determined retirement-type subsidy provided under changes in the law, to maintain without regard to ancillary benefits and the plan, depends on provisions in compliance with the requirements of the other rights or features as defined in another document that are referenced in Internal Revenue Code (including § 1.401(a)(4)–4(e) of this chapter. the plan document, a change in the requirements for tax qualification), (c) Reduction of early retirement provisions of the other document is an ERISA, or other applicable federal law. benefits or retirement-type subsidies. amendment of the plan. Q–6. What is an amendment that For purposes of section 4980F and (b) Plan provisions not taken into reduces the rate of future benefit accrual section 204(h), an amendment reduces account. Plan provisions that do not

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affect the rate of future benefit accrual on reasonable expectations taking into annually for life commencing at normal of participants or alternate payees are account the relevant facts and retirement age (or at actual retirement age, if not taken into account in determining circumstances at the time the later). Plan A is amended, effective January whether there has been a reduction in amendment is adopted. 1, 2008, to provide that any participant who (b) Application for determining separates from service after December 31, the rate of future benefit accrual. 2007, and before January 1, 2013, will have Further, any benefit that is not a section significant reduction in the rate of the same number of years of service he or she 411(d)(6) protected benefit as described future benefit accrual. For a defined would have had if his or her service in § 1.411(d)–4, Q&A–1(d) of this benefit plan, the determination of continued to December 31, 2012. chapter, or that is a section 411(d)(6) whether an amendment provides for a (ii) Conclusion. While the amendment will protected benefit that may be eliminated significant reduction in the rate of result in a reduction in the annual rate of or reduced as permitted under future benefit accrual is made by future benefit accrual from 2009 through § 1.411(d)–4, Q&A–2(a) or (b) of this comparing the amount of the annual 2012 (because under the amendment, chapter, is not taken into account in benefit commencing at normal benefits based upon an additional five years of service accrue on January 1, 2008, and no determining whether an amendment is retirement age (or at actual retirement age, if later), as determined under Q&A– additional service is credited after January 1, a section 204(h) amendment. Thus, for 2008 until January 1, 2013), the amendment example, provisions relating to vesting 6(b)(1) of this section, under the terms does not result in a reduction that is schedules or the right to make after-tax of the plan as amended with the amount significant because the amount of the annual contributions or elective deferrals are of the annual benefit commencing at benefit commencing at normal retirement age not taken into account. normal retirement age (or at actual (or at actual retirement age, if later) under the (c) Examples. The following examples retirement age, if later), as determined terms of the plan as amended is not under illustrate the rules in this Q&A–7: under Q&A–6(b)(1) of this section, any conditions less than the amount of the under the terms of the plan prior to annual benefit commencing at normal Example 1. (i) Facts. A defined benefit plan amendment. For an individual account retirement age (or at actual retirement age, if provides a normal retirement benefit equal to later) to which any participant would have 50% of highest 5-year average pay multiplied plan, the determination of whether an amendment provides for a significant been entitled under the terms of the plan had by a fraction (not in excess of one), the the amendment not been made. numerator of which equals the number of reduction in the rate of future benefit years of participation in the plan and the accrual is made in accordance with Q–9. When must section 204(h) notice denominator of which is 20. A plan Q&A–6(b)(2) of this section by be provided? amendment is adopted that changes the comparing the amounts to be allocated A–9. (a) 45-day general rule. Except as numerator or denominator of that fraction. in the future to participants’ accounts described in paragraphs (b), (c), and (d) (ii) Conclusion. The plan amendment must under the terms of the plan as amended of this Q&A–9, section 204(h) notice be taken into account in determining whether must be provided at least 45 days before there has been a reduction in the rate of with the amounts to be allocated in the future benefit accrual. future to participants’ accounts under the effective date of any section 204(h) Example 2. (i) Facts. Plan C is a the terms of the plan prior to amendment. See paragraph (e) of this multiemployer defined benefit plan subject amendment. An amendment to convert Q&A–9 for special rules for amendments to several collective bargaining agreements. a money purchase pension plan to a permitting participant choice. The specific benefit formula under Plan C profit-sharing or other individual (b) 15-day rule for small plans. Except that applies to an employee depends on the account plan that is not subject to for amendments described in paragraph hourly rate of contribution of the employee’s section 412 of the Internal Revenue (d)(2) of this Q&A–9, section 204(h) employer, which is set forth in the provisions notice must be provided at least 15 days of the collective bargaining agreements that Code is, in all cases, deemed to be an are referenced in the Plan C document. amendment that provides for a before the effective date of any section Collective Bargaining Agreement A between significant reduction in the rate of 204(h) amendment in the case of a small Employer B and the union representing future benefit accrual. plan. For purposes of this section, a employees of Employer B is renegotiated to (c) Application to certain small plan is a plan that the plan provide that the hourly contribution rate for amendments reducing early retirement administrator reasonably expects to an employee of B who is subject to the benefits or retirement-type subsidies. have, on the effective date of the section Collective Bargaining Agreement A will Because section 204(h) notice is 204(h) amendment, fewer than 100 decrease. That decrease will result in a decrease in the rate of future benefit accrual required only for reductions that are participants who have an accrued for employees of B. significant, section 204(h) notice is not benefit under the plan. (ii) Conclusion. Under paragraph (a)(2) of required for an amendment that reduces (c) 15-day rule for multiemployer this Q&A–7, the change to Collective an early retirement benefit or plans. Except for amendments described Bargaining Agreement A is a plan retirement-type subsidy if the in paragraph (d)(2) of this Q&A–9, amendment that is a section 204(h) amendment is permitted under the third section 204(h) notice must be provided amendment if the reduction in the rate of sentence of section 411(d)(6)(B) of the at least 15 days before the effective date future benefit accrual is significant. Internal Revenue Code and regulations of any section 204(h) amendment in the Q–8. What is the basic principle used thereunder (relating to the elimination case of a multiemployer plan. For in determining whether a reduction in or reduction of benefits or subsidies purposes of this section, a the rate of future benefit accrual or a which create significant burdens or multiemployer plan means a reduction in an early retirement benefit complexities for the plan and plan multiemployer plan as defined in or retirement-type subsidy is significant participants unless the amendment section 414(f) of the Internal Revenue for purposes of section 4980F and adversely affects the rights of any Code. section 204(h)? participant in a more than de minimis (d) Special timing rule for business A–8. (a) General rule. Whether an manner). transactions—(1) 15-day rule for section amendment reducing the rate of future (d) Example. The following example 204(h) amendment in connection with benefit accrual or reducing an early illustrates the rules in this Q&A–8: an acquisition or disposition. Except for retirement benefit or retirement-type Example. (i) Facts. Pension Plan A is a amendments described in paragraph subsidy provides for a reduction that is defined benefit plan that provides a rate of (d)(2) of this Q&A–9, if a section 204(h) significant for purposes of section 4980F benefit accrual of 1% of highest-five years’ amendment is adopted in connection and section 204(h) is determined based pay multiplied by years of service, payable with an acquisition or disposition,

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section 204(h) notice must be provided plan at the effective date of the section have not attained normal retirement age, and at least 15 days before the effective date 204(h) amendment. will have completed 20 or more years of of the section 204(h) amendment. (c) Alternate payee. Alternate payee service before normal retirement age if their means a beneficiary who is an alternate employment continues to normal retirement (2) Later notice permitted for a section age. 204(h) amendment significantly payee (within the meaning of section Example 3. (i) Facts. A plan is amended to reducing early retirement benefit or 414(p)(8) of the Internal Revenue Code) reduce significantly the rate of future benefit retirement-type subsidies in connection under an applicable qualified domestic accrual for all current employees who are with certain plan transfers, mergers, or relations order (within the meaning of participants. Based on the facts and consolidations. If a section 204(h) section 414(p)(1)(A) of the Internal circumstances, it is reasonable to expect that amendment is adopted with respect to Revenue Code). the amendment will not reduce the rate of liabilities that are transferred to another (d) Designees. Section 204(h) notice future benefit accrual of former employees may be provided to a person designated who are currently receiving benefits or of plan in connection with a transfer, former employees who are entitled to merger, or consolidation of assets or in writing by an applicable individual deferred vested benefits. liabilities as described in section 414(l) or by an employee organization (ii) Conclusion. The plan administrator is of the Internal Revenue Code and representing participants who are not required to provide section 204(h) notice § 1.414(l)–1 of this chapter, the applicable individuals, instead of being to any former employees. amendment is adopted in connection provided to that applicable individual Example 4. (i) Facts. The facts are the same with an acquisition or disposition, and or employee organization. Any as in Example 3, except that the plan covers designation of a representative made two groups of alternate payees. The alternate the amendment significantly reduces an payees in the first group are entitled to a early retirement benefit or retirement- through an electronic method that certain percentage or portion of the former type subsidy, but does not significantly satisfies standards similar to those of spouse’s accrued benefit and, for this reduce the rate of future benefit accrual, Q&A–13(c)(1) of this section satisfies the purpose, the accrued benefit is determined at then section 204(h) notice must be requirement that a designation be in the time the former spouse begins receiving provided no later than 30 days after the writing. retirement benefits under the plan. The effective date of the section 204(h) (e) Facts and circumstances test. alternate payees in the second group are entitled to a certain percentage or portion of amendment. Whether a participant or alternate payee is an applicable individual is the former spouse’s accrued benefit and, for (3) Definition of acquisition or this purpose, the accrued benefit was disposition. For purposes of this determined on a typical business day determined at the time the qualified domestic paragraph (d), see § 1.410(b)–2(f) of this that is reasonably proximate to the time relations order was issued by the court. chapter for the definition of acquisition the section 204(h) notice is provided (or (ii) Conclusion. It is reasonable to expect or disposition. at the latest date for providing section that the benefits to be received by the second (e) Timing rule for amendments 204(h) notice, if earlier), based on all group of alternate payees will not be affected relevant facts and circumstances. by any reduction in a former spouse’s rate of permitting participant choice. In future benefit accrual. Accordingly, the plan general, section 204(h) notice of a (f) Examples. The following examples illustrate the rules in this Q&A–10: administrator is not required to provide section 204(h) amendment that provides section 204(h) notice to the alternate payees applicable individuals with a choice Example 1. (i) Facts. A defined benefit plan in the second group. between the old and the new benefit requires an individual to complete 1 year of Example 5. (i) Facts. A plan covers hourly formulas (as described in Q&A–12 of service to become a participant who can employees and salaried employees. The plan accrue benefits, and participants cease to provides the same rate of benefit accrual for this section) must be provided in accrue benefits under the plan at severance accordance with the time period both groups. The employer amends the plan from employment with the employer. There to reduce significantly the rate of future applicable under paragraphs (a) through are no alternate payees and employees are benefit accrual of the salaried employees (d) of this Q&A–9. See Q&A–12 of this not represented by an employee organization. only. At that time, it is reasonable to expect section for additional guidance On November 18, 2004, the plan is amended that only a small percentage of hourly regarding section 204(h) notice in effective as of January 1, 2005 to reduce employees will become salaried in the future. connection with participant choice. significantly the rate of future benefit accrual. (ii) Conclusion. The plan administrator is Q–10. To whom must section 204(h) Section 204(h) notice is provided on not required to provide section 204(h) notice November 1, 2004. to the participants who are currently hourly notice be provided? (ii) Conclusion. Section 204(h) notice is A–10. (a) In general. Section 204(h) employees. only required to be provided to individuals Example 6. (i) Facts. A plan covers notice must be provided to each who, based on the facts and circumstances on employees in Division M and employees in applicable individual and to each November 1, 2004, are reasonably expected Division N. The plan provides the same rate employee organization representing to have completed at least 1 year of service of benefit accrual for both groups. The participants who are applicable and to be employed by the employer on employer amends the plan to reduce individuals. A special rule is provided January 1, 2005. significantly the rate of future benefit accrual in paragraph (d) of this Q&A–10. Example 2. (i) Facts. The facts are the same of employees in Division M. At that time, it as in Example 1, except that the sole effect is reasonable to expect that in the future only (b) Applicable individual. Applicable of the plan amendment is to alter the pre- individual means each participant in a small percentage of employees in Division amendment plan provisions under which N will be transferred to Division M. the plan, and any alternate payee, benefits payable to an employee who retires (ii) Conclusion. The plan administrator is whose rate of future benefit accrual after 20 or more years of service are not required to provide section 204(h) notice under the plan is reasonably expected to unreduced for commencement before normal to the participants who are employees in be significantly reduced, or for whom an retirement age. The amendment requires 30 Division N. early retirement benefit or retirement- or more years of service in order for benefits Example 7. (i) Facts. The facts are the same type subsidy under the plan may commencing before normal retirement age to facts as in Example 6, except that at the time reasonably be expected to be be unreduced, but the amendment only the amendment is adopted, it is expected that applies for future benefit accruals. significantly reduced, by the section thereafter Division N will be merged into (ii) Conclusion. Section 204(h) notice is Division M in connection with a corporate 204(h) amendment. The determination only required to be provided to individuals reorganization (and the employees in is made with respect to individuals who who, on January 1, 2005, have completed at Division N will become subject to the plan’s are reasonably expected to be least 1 year of service but less than 30 years amended benefit formula applicable to the participants or alternate payees in the of service, are employed by the employer, employees in Division M).

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(ii) Conclusion. In this case, the plan retirement benefit at age 60 for benefits defined benefit formula to a cash administrator must provide section 204(h) accrued in the future, with an actuarial balance formula, or over time as to any notice to the participants who are employees reduction to apply for benefits accrued individual participant, as would occur in Division M and to the participants who are in the future to the extent that the early for an amendment that results in a wear- employees in Division N. retirement benefit begins before age 60, Example 8. (i) Facts. A plan is amended to away period), the illustrative example(s) reduce significantly the rate of future benefit the notice must state the change and provided in accordance with this accrual for all current employees who are specify the factors that apply in paragraph (a)(4)(ii) must show the participants. The plan amendment will be calculating the actuarial reduction (for approximate range of the reductions. effective on January 1, 2004. The plan will example, a 5% per year reduction However, any reductions that are likely provide the notice to applicable individuals applies for early retirement before age to occur in only a de minimis number on October 31, 2003. In determining which 60). of cases are not required to be taken into current employees are applicable (4) Sufficient information to account in determining the range of the individuals, the plan administrator determine the approximate magnitude reductions if a narrative statement is determines that October 1, 2003, is a typical of reduction—(i) General rule. (A) included to that effect and examples are business day that is reasonably proximate to Section 204(h) notice must include the time the section 204(h) notice is provided that show the approximate provided. sufficient information for each range of the reductions in other cases. (ii) Conclusion. In this case, October 1, applicable individual to determine the Amendments for which the maximum 2003 is a typical business day that satisfies approximate magnitude of the expected reduction occurs under identifiable the requirements of Q&A–10(e) of this reduction for that individual. Thus, in circumstances, with proportionately section. any case in which it is not reasonable smaller reductions in other cases, may to expect that the approximate Q–11. What information is required to be illustrated by one example magnitude of the reduction for each be provided in a section 204(h) notice? illustrating the maximum reduction, applicable individual will be reasonably A–11. (a) Explanation of notice with a statement that smaller reductions apparent from the description of the requirements—(1) In general. Section also occur. Further, assuming that the amendment provided in accordance 204(h) notice must include sufficient reduction varies from small to large with paragraph (a)(3) of this Q&A–11, information to allow applicable depending on service or other factors, further information is required. The individuals to understand the effect of two illustrative examples may be further information may be provided by provided showing the smallest likely the plan amendment. In order to satisfy furnishing additional narrative this rule, a plan administrator providing reduction and the largest likely information or in other information that reduction. section 204(h) notice must satisfy each satisfies this paragraph of this section. of the following requirements of this (B) To the extent any expected (C) Assumptions used in examples. paragraph (a). reduction is not uniformly applicable to The examples provided under this (2) Information in section 204(h) all participants, the notice must either paragraph (a)(4)(ii) are not required to notice. The information in a section identify the general classes of be based on any particular form of 204(h) notice must be written in a participants to whom the reduction is payment (such as a life annuity or a manner calculated to be understood by expected to apply, or by some other single sum), but may be based on the average plan participant and to method include sufficient information whatever form appropriately illustrates apprise the applicable individual of the to allow each applicable individual the reduction. The examples generally significance of the notice. receiving the notice to determine which may be based on any reasonable (3) Required narrative description of reductions are expected to apply to that assumptions (for example, assumptions amendment—(i) Reduction in rate of individual. relating to the representative future benefit accrual. In the case of an (ii) Illustrative examples—(A) participant’s age, years of service, and amendment reducing the rate of future Requirement generally. The requirement compensation, along with any interest benefit accrual, the notice must include to include sufficient information for rate and mortality table used in the a description of the benefit or allocation each applicable individual to determine illustrations, as well as salary scale formula prior to the amendment, a the approximate magnitude of the assumptions used in the illustrations for description of the benefit or allocation expected reduction for that individual amendments that alter the formula under the plan as amended, and under (a)(4)(i)(A) of this Q&A–11 is compensation taken into account under the effective date of the amendment. deemed satisfied if the notice includes the plan), but the section 204(h) notice (ii) Reduction in early retirement one or more illustrative examples must identify those assumptions. benefit or retirement-type subsidy. In showing the approximate magnitude of However, if a plan’s benefit provisions the case of an amendment that reduces the reduction in the examples, as include a factor that varies over time an early retirement benefit or provided in this paragraph (a)(4)(ii). (such as a variable interest rate), the retirement-type subsidy (other than as a Illustrative examples are in any event determination of whether an result of an amendment reducing the required to be provided for any change amendment is reasonably expected to rate of future benefit accrual), the notice from a traditional defined benefit result in a wear-away period must be must describe how the early retirement formula to a cash balance formula or a based on the value of the factor benefit or retirement-type subsidy is change that results in a period of time applicable under the plan at a time that calculated from the accrued benefit during which there are no accruals (or is reasonably close to the date section before the amendment, how the early minimal accruals) with regard to normal 204(h) notice is provided, and any wear- retirement benefit or retirement-type retirement benefits or an early away period that is solely a result of a subsidy is calculated from the accrued retirement subsidy (a wear-away future change in the variable factor may benefit after the amendment, and the period). be disregarded. For example, to effective date of the amendment. For (B) Examples must bound the range of determine whether a wear-away occurs example, if, for a plan with a normal reductions. Where an amendment as a result of a section 204(h) retirement age of 65, the change is from results in reductions that vary (either amendment that converts a defined an unreduced normal retirement benefit among participants, as would occur for benefit plan to a cash balance pension at age 55 to an unreduced normal an amendment converting a traditional plan that will credit interest based on a

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variable interest factor specified in the (a)(2) of this Q&A–11. The examples are highest 3-year average exceeds the plan, the future interest credits must be as follows: individual’s career average, the reduction projected based on the interest rate will be less or there may be no reduction. Example 1. (i) Facts. Plan A provides that The notice does not contain any additional applicable under the variable factor at a participant is entitled to a normal information. the time section 204(h) notice is retirement benefit of 2% of the participant’s (ii) Conclusion. The notice satisfies the provided. average pay over the 3 consecutive years for requirements of paragraph (a) of this Q&A– (D) Individual statements. This which the average is the highest (highest 11. paragraph (a)(4)(ii) may be satisfied by average pay) multiplied by years of service. Example 4. (i) Facts. (A) Plan D is a Plan A is amended to provide that, effective defined benefit pension plan under which providing a statement to each applicable January 1, 2004, the normal retirement individual projecting what that each participant accrues a normal retirement benefit will be 2% of the participant’s highest benefit, as a life annuity beginning at the individual’s future benefits are average pay multiplied by years of service normal retirement age of 65, equal to the reasonably expected to be at various before the effective date, plus 1% of the participant’s number of years of service future dates and what that individual’s participant’s highest average pay multiplied multiplied by 1.5 percent multiplied by the future benefits would have been under by years of service after the effective date. participant’s average pay over the 3 the terms of the plan as in effect before The plan administrator provides notice that consecutive years for which the average is the section 204(h) amendment, provided states: ‘‘Under the Plan’s current benefit the highest. Plan D provides early retirement that the statement includes the same formula, a participant’s normal retirement benefits for former employees beginning at or benefit is 2% of the participant’s average pay information required for examples after age 55 in the form of an early retirement over the 3 consecutive years for which the annuity that is actuarially equivalent to the under paragraphs (a)(4)(ii)(A) through average is the highest multiplied by the normal retirement benefit, with the reduction (C) of this Q&A–11, including showing participant’s years of service. This formula is for early commencement based on reasonable the approximate range of the reductions being changed by a plan amendment. Under actuarial assumptions that are specified in for the individual if the reductions vary the Plan as amended, a participant’s normal Plan D. Plan D provides for the suspension over time and identification of the retirement benefit will be the sum of 2% of of benefits of participants who continue in assumptions used in the projections. the participant’s average pay over the 3 employment beyond normal retirement age, consecutive years for which the average is (5) No false or misleading in accordance with section 203(a)(3)(B) of the highest multiplied by years of service ERISA and regulations thereunder issued by information. A section 204(h) notice before the January 1, 2004 effective date, plus the Department of Labor. The pension of a may not include materially false or 1% of the participant’s average pay over the participant who retires after age 65 is misleading information (or omit 3 consecutive years for which the average is calculated under the same normal retirement information so as to cause the the highest multiplied by the participant’s benefit formula, but is based on the information provided to be misleading). years of service after December 31, 2003. This participant’s service credit and highest 3-year (6) Additional information when change is effective on January 1, 2004.’’ The pay at the time of late retirement with any reduction not uniform—(i) In general. If notice does not contain any additional appropriate actuarial increases. information. (B) Plan D is amended, effective July 1, an amendment by its terms affects (ii) Conclusion. The notice satisfies the 2005, to change the formula for all future different classes of participants requirements of paragraph (a) of this Q&A– accruals to a cash balance formula under differently (e.g., one new benefit 11. which the opening account balance for each formula will apply to Division A and Example 2. (i) Facts. Plan B provides that participant on July 1, 2005, is zero, another to Division B), then the a participant is entitled to a normal hypothetical pay credits equal to 5 percent of requirements of paragraph (a) of this retirement benefit at age 64 of 2.2% of the pay are credited to the account thereafter, Q&A–11 apply separately with respect participant’s career average pay multiplied and hypothetical interest is credited monthly to each such general class of by years of service. Plan B is amended to based on the applicable interest rate under cease all accruals, effective January 1, 2004. section 417(e)(3) of the Internal Revenue participants. In addition, the notice The plan administrator provides notice that Code at the beginning of the quarter. Any must include sufficient information to includes a description of the old benefit participant who terminates employment with enable an applicable individual who is formula, a statement that, after December 31, vested benefits can receive an actuarially a participant to understand which class 2003, no participant will earn any further equivalent annuity (based on the same he or she is a member of. accruals, and the effective date of the reasonable actuarial assumptions that are (ii) Option for different section 204(h) amendment. The notice does not contain any specified in Plan D) commencing at any time notices. If a section 204(h) amendment additional information. after termination of employment and before affects different classes of applicable (ii) Conclusion. The notice satisfies the the plan’s normal retirement age of 65. The requirements of paragraph (a) of this Q&A– benefit resulting from the hypothetical individuals differently, the plan 11. account balance is in addition to the benefit administrator may provide to differently Example 3. (i) Facts. Plan C provides that accrued before July 1, 2005 (taking into affected classes of applicable a participant is entitled to a normal account only service and highest 3-year pay individuals a section 204(h) notice retirement benefit at age 65 of 2% of career before July 1, 2005), so that it is reasonably appropriate to those individuals. Such average compensation multiplied by years of expected that no wear-away period will section 204(h) notice may omit service. Plan C is amended to provide that result from the amendment. The plan information that does not apply to the the normal retirement benefit will be 1% of administrator expects that, as a general rule, applicable individuals to whom it is average pay over the 3 consecutive years for depending on future pay increases and future which the average is the highest multiplied interest rates, the rate of future benefit furnished, but must identify the class or by years of service. The amendment only accrual after the conversion is higher for classes of applicable individuals to applies to accruals for years of service after participants who accrue benefits before whom it is provided. the amendment, so that each employee’s approximately age 50 and after (b) Examples. The following examples accrued benefit is equal to the sum of the approximately age 70, but is lower for illustrate the requirements paragraph (a) benefit accrued as of the effective date of the participants who accrue benefits between of this Q&A–11. In each example, it is amendment plus the accrued benefit equal to approximately age 50 and age 70. assumed that the actual notice provided the new formula applied to years of service (C) The plan administrator of Plan D is written in a manner calculated to be beginning on or after the effective date. The announces the conversion to a cash balance plan administrator provides notice that formula on May 16, 2005. The announcement understood by the average plan describes the old and new benefit formulas is delivered to all participants and includes participant and to apprise the applicable and also explains that for an individual a written notice that describes the old individual of the significance of the whose compensation increases over the formula, the new formula, and the effective notice in accordance with paragraph individual’s career such that the individual’s date.

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(D) In addition, the notice states that the pay at age 65. The requirement in paragraph states that the monthly early retirement Plan D formula before the conversion (a)(4)(ii) of this Q&A–11 that the examples pension of $270 is 38 percent less than the provided a normal retirement benefit equal to include sufficient information to be able to monthly normal retirement benefit of $434, the product of a participant’s number of years determine the approximate magnitude of the whereas a 15 percent reduction would have of service multiplied by 1.5 percent reduction would also be satisfied if the notice applied under the plan as in effect before the multiplied by the participant’s average pay instead directly stated the amount of the amendment. The requirements of paragraph over the 3 years for which the average is the monthly pension that would have accrued (a)(4)(ii) of this Q&A–11 that the examples highest (highest 3-year pay). The notice over the 16-year period from age 49 to age 65 include sufficient information to be able to includes an example showing the normal under the old formula. determine the approximate magnitude of the retirement benefit that will be accrued after Example 5. (i) Facts. The facts are the same reduction would also be satisfied if the notice June 30, 2005 for a participant who is age 49 as in Example 4, except that, under the plan instead directly stated the amount of the with 10 years of service at the time of the as in effect before the amendment, the early monthly early retirement pension that would conversion. The plan administrator retirement pension for a participant who be payable at age 59 under the old formula. reasonably believes that such a participant is terminates employment after age 55 with at Q–12. What special rules apply if representative of the participants whose rate least 20 years of service is equal to the participants can choose between the old of future benefit accrual will be reduced as normal retirement benefit without reduction a result of the amendment. The example from age 65 to age 62 and reduced by only and new benefit formulas? estimates that, if the participant continues 5 percent per year for each year before age A–12. In any case in which an employment to age 65, the participant’s 62. As a result, early retirement benefits for applicable individual can choose normal retirement benefit for service from such a participant constitute a retirement- between the benefit formula (including age 49 to age 65 will be $657 per month for type subsidy. The plan as in effect after the any early retirement benefit or life. The example assumes that the amendment provides an early retirement retirement-type subsidy) in effect before participant’s pay is $50,000 at age 49. The benefit equal to the sum of the early the section 204(h) amendment (old example states that the estimated $657 retirement benefit payable under the plan as formula) or the benefit formula in effect monthly pension accrues over the 16-year in effect before the amendment taking into after the section 204(h) amendment period from age 49 to age 65 and that, based account only service and highest 3-year pay (new formula), section 204(h) notice has on assumed future pay increases, this amount before July 1, 2005, plus an early retirement annually would be 9.1 percent of the annuity that is actuarially equivalent to the not been provided unless the applicable participant’s highest 3-year pay at age 65, account balance for service after June 30, individual has been provided the which over the 16 years from age 49 to age 2005. The notice provided by the plan information required under Q&A–11 of 65 averages 0.57 percent per year multiplied administrator describes the old early this section, and has also been provided by the participant’s highest 3-year pay. The retirement annuity, the new early retirement sufficient information to enable the example also states that the sum of the annuity, and the effective date. The notice individual to make an informed choice monthly annuity accrued before the includes an estimate of the early retirement between the old and new benefit conversion in the 10-year period from age 39 annuity payable to the illustrated participant formulas. The information required to age 49 plus the $657 monthly annuity for service after the conversion if the under Q&A–11 of this section must be estimated to be accrued over the 16-year participant were to retire at age 59 (which the provided by the date otherwise required period from age 49 to age 65 is $1,235 and plan administrator believes is a typical early that, based on assumed future increases in retirement age) and elect to begin receiving under Q&A–9 of this section. The pay, this would be 17.1 percent of the an immediate early retirement annuity. The information sufficient to enable the participant’s highest 3-year pay at age 65, example states that the normal retirement individual to make an informed choice which over the employee’s career from age 39 benefit expected to be payable at age 65 as must be provided within a period that to age 65 averages 0.66 percent per year a result of service from age 49 to age 59 is is reasonably contemporaneous with the multiplied by the participant’s highest 3-year $434 per month for life beginning at age 65 date by which the individual is required pay. The notice also includes two other and that the early retirement annuity to make his or her choice and that examples with similar information, one of expected to be payable as a result of service allows sufficient advance notice to which is intended to show the circumstances from age 49 to age 59 is $270 per month for enable the individual to understand and in which a small reduction may occur and life beginning at age 59. The example states consider the additional information the other of which shows the largest that the monthly early retirement annuity of reduction that the plan administrator thinks $270 is 38 percent less than the monthly before making that choice. is likely to occur. The notice states that the normal retirement benefit of $434, whereas a Q–13. How may section 204(h) notice estimates are based on the assumption that 15 percent reduction would have applied be provided? pay increases annually after June 30, 2005, at under the plan as in effect before the A–13. (a) Delivering section 204(h) a 4 percent rate. The notice also specifies that amendment. The notice also includes similar notice. A plan administrator (including the applicable interest rate under section information for examples that show the a person acting on behalf of the plan 417(e) for hypothetical interest credits after smallest and largest reduction that the plan administrator, such as the employer or June 30, 2005 is assumed to be 6 percent, administrator thinks is likely to occur in the plan trustee) must provide section which is the section 417(e) of the Internal early retirement benefit. The notice also 204(h) notice through a method that Revenue Code applicable interest rate under specifies the applicable interest rate, results in actual receipt of the notice or the plan for 2005. mortality table, and salary scale used in the the plan administrator must take (ii) Conclusion. The information in the example to calculate the early retirement notice, as described in paragraph (i)(C) and reductions. appropriate and necessary measures (i)(D) of this Example 4, satisfies the (ii) Conclusion. The information in the reasonably calculated to ensure that the requirements of paragraph (a)(3) of this Q&A– notice, as described in paragraphs (i)(C) and method for providing section 204(h) 11 with respect to applicable individuals (D) of Example 4 and paragraph (i) of this notice results in actual receipt of the who are participants. The requirements of Example 5, satisfies the requirements of notice. Section 204(h) notice must be paragraph (a)(4) of this Q&A–11 are satisfied paragraph (a)(3) of this Q&A–11 with respect provided either in the form of a paper because, as noted in paragraph (i)(D) of this to applicable individuals who are document or in an electronic form that Example 4, the notice describes the old participants. The requirements of paragraph satisfies the requirements of paragraph formula and describes the estimated future (a)(4) of this Q&A–11 are satisfied because, as (c) of this Q&A–13. First class mail to accruals under the new formula in terms that noted in paragraph (i) of this Example 5, the can be readily compared to the old formula, notice describes the early retirement subsidy the last known address of the party is an i.e., the notice states that the estimated $657 under the old formula and describes the acceptable delivery method. Likewise, monthly pension accrued over the 16-year estimated early retirement pension under the hand delivery is acceptable. However, period from age 49 to age 65 averages 0.57 new formula in terms that can be readily the posting of notice is not considered percent of the participant’s highest 3-year compared to the old formula, i.e., the notice provision of section 204(h) notice.

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Section 204(h) notice may be enclosed (2) Examples. The following examples receipt of electronically furnished with or combined with other notice illustrate the requirement in paragraph documents; provided by the employer or plan (c)(1)(i) of this Q&A–13. In these examples, (iii) Prior to consenting, the administrator (for example, a notice of it is assumed that the notice satisfies the applicable individual has been requirements in paragraphs (c)(1)(ii) and (iii) provided, in electronic or non-electronic intent to terminate under title IV of of this section. The examples are as follows: ERISA). Except as provided in Example 1. (i) Facts. On July 1, 2003, M, form, a clear and conspicuous statement paragraph (c) of this Q&A–13, a section a plan administrator of Company N’s plan, indicating— 204(h) notice is deemed to have been sends notice intended to constitute section (A) That the consent can be provided on a date if it has been 204(h) notice to A, an employee of Company withdrawn at any time without charge; provided by the end of that day. When N and a participant in the plan. The notice (B) The procedures for withdrawing notice is delivered by first class mail, is sent through e-mail to A’s e-mail address consent and for updating the address or the notice is considered provided as of on Company N’s electronic information other information needed to contact the system. Accessing Company N’s electronic applicable individual; the date of the United States postmark information system is not an integral part of stamped on the cover in which the (C) Any hardware and software A’s duties. M sends the e-mail with a request requirements for accessing and retaining document is mailed. for a computer-generated notification that the the documents; and (b) Example. The following example message was received and opened. M receives notification indicating that the e- (D) The information required by illustrates the provisions of paragraph paragraph (c)(1)(ii) of this Q&A–13; and (a) of this Q&A–13: mail was received and opened by A on July 9, 2003. (iv) After consenting, if a change in Example. (i) Facts. Plan A is amended to (ii) Conclusion. With respect to A, although hardware or software requirements reduce significantly the rate of future benefit M has failed to take appropriate and needed to access or retain electronic accrual effective January 1, 2005. Under necessary measures reasonably calculated to records creates a material risk that the Q&A–9 of this section, section 204(h) notice ensure that the method for providing section applicable individual will be unable to is required to be provided at least 45 days 204(h) notice results in actual receipt of the access or retain the section 204(h) before the effective date of the amendment. notice, M satisfies the requirement of notice— The plan administrator causes section 204(h) paragraph (c)(1)(i) of this Q&A–13 on July 9, (A) The applicable individual is notice to be mailed to all affected 2003, which is when A actually receives the participants. The mailing is postmarked notice. provided with a statement of the revised November 16, 2004. Example 2. (i) Facts. On August 1, 2003, hardware and software requirements for (ii) Conclusion. Because section 204(h) O, a plan administrator of Company P’s plan, access to and retention of the section notice is given 45 days before the effective sends a notice intended to constitute section 204(h) notice and is given the right to date of the plan amendment, it satisfies the 204(h) notice of ERISA to B, who is an withdraw consent without the timing requirement of Q&A–9 of this section. employee of Company P and a participant in imposition of any fees for such (c) New technologies—(1) General rule. A Company P’s plan. The notice is sent through withdrawal and without the imposition section 204(h) notice may be provided to an e-mail to B’s e-mail address on Company P’s of any condition or consequence that applicable individual through an electronic electronic information system. B has the was not disclosed at the time of the method (other than an oral communication or ability to effectively access electronic a recording of an oral communication), documents from B’s e-mail address on initial consent; and provided that all of the following Company P’s electronic information system (B) The requirement of paragraph requirements are satisfied: and accessing the system is an integral part (c)(3)(i) of this Q&A–13 is again (i) Either the notice is actually received by of B’s duties. complied with. the applicable individual or the plan (ii) Conclusion. Because access to the Q–14. What are the consequences if a administrator takes appropriate and system is an integral part of B’s duties, O has plan administrator fails to provide necessary measures reasonably calculated to taken appropriate and necessary measures section 204(h) notice? ensure that the method for providing section reasonably calculated to ensure that the A–14. (a) Egregious failures—(1) 204(h) notice results in actual receipt of the method for providing section 204(h) notice Effect of egregious failure to provide notice by the applicable individual. results in actual receipt of the notice. Thus, section 204(h) notice. Section (ii) The plan administrator provides the regardless of whether B actually accesses B’s 204(h)(6)(A) of ERISA provides that, in applicable individual with a clear and email on that date, O satisfies the conspicuous statement, in electronic or non- requirement of paragraph (c)(1)(i) of this the case of any egregious failure to meet electronic form, that the applicable Q&A–13 on August 1, 2003, with respect to the notice requirements with respect to individual has a right to request and obtain B. any plan amendment, the plan a paper version of the section 204(h) notice (3) Safe harbor in case of consent. The provisions are applied so that all without charge and, if such request is made, requirement of paragraph (c)(1)(i) of this applicable individuals are entitled to the applicable individual is furnished with Q&A–13 is deemed to be satisfied with the greater of the benefit to which they the paper version without charge. respect to an applicable individual if the would have been entitled without (iii) The requirements of this section must section 204(h) notice is provided regard to the amendment, or the benefit otherwise be satisfied. Thus, for example, a under the plan with regard to the section 204(h) notice provided through an electronically to an applicable electronic method must be delivered on or individual, and— amendment. For a special rule before the date required under Q&A–9 of this (i) The applicable individual has applicable in the case of a plan section and must satisfy the requirements set affirmatively consented electronically, termination, see Q&A–17(b) of this forth in Q&A–11 of this section, including or confirmed consent electronically, in section. the content requirements and the a manner that reasonably demonstrates (2) Definition of egregious failure. For requirements that it be written in a manner the applicable individual’s ability to purposes of section 204(h) of ERISA and calculated to be understood by the average access the information in the electronic this Q&A–14, there is an egregious plan participant and to apprise the applicable form in which the notice will be failure to meet the notice requirements individual of the significance of the notice. if a failure to provide required notice is Accordingly, when it is not otherwise provided, to receiving section 204(h) reasonably evident, the recipient should be notice electronically and has not within the control of the plan sponsor apprised (either in electronic or in non- withdrawn such consent; and is either an intentional failure or a electronic form), at the time the notice is (ii) The applicable individual has failure, whether or not intentional, to furnished electronically, of the significance provided, if applicable, in electronic or provide most of the individuals with of the notice. non-electronic form, an address for the most of the information they are entitled

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to receive. For this purpose, an Q–15. What are some of the rules that 204(h) notice is then promptly delivered to intentional failure includes any failure apply with respect to the excise tax all affected participants at the worksite. to promptly provide the required notice under section 4980F? (ii) Conclusion. Because the employer or information after the plan A–15. (a) Person responsible for exercised reasonable diligence, but did not know that a failure existed, no excise tax administrator discovers an excise tax. In the case of a plan other applies, assuming that participants at the unintentional failure to meet the than a multiemployer plan, the worksite receive section 204(h) notice within requirements. A failure to give section employer is responsible for reporting 30 days after the employer first knew, or 204(h) notice is deemed not to be and paying the excise tax. In the case of exercising reasonable diligence would have egregious if the plan administrator a multiemployer plan, the plan is known, that the failure occurred. reasonably determines, taking into responsible for reporting and paying the Q–16. How do section 4980F and account section 4980F, section 204(h), excise tax. section 204(h) apply when a business is these regulations, other administrative (b) Excise tax inapplicable in certain sold? pronouncements, and relevant facts and cases. Under section 4980F(c)(1) of the A–16. (a) Generally. Whether section circumstances, that the reduction in the Internal Revenue Code, no excise tax is 204(h) notice is required in connection rate of future benefit accrual resulting imposed on a failure for any period with the sale of a business depends on from an amendment is not significant during which it is established to the whether a plan amendment is adopted (as described in Q&A–8 of this section), satisfaction of the Commissioner that that significantly reduces the rate of or that an amendment does not the employer (or other person future benefit accrual or significantly significantly reduce an early retirement responsible for the tax) exercised reduces an early retirement benefit or benefit or retirement-type subsidy. reasonable diligence, but did not know retirement-type subsidy. (3) Example. The following example that the failure existed. Under section (b) Examples. The following examples illustrates the provisions of this 4980F(c)(2) of the Internal Revenue illustrate the rules of this Q&A–16: paragraph (a): Code, no excise tax applies to a failure Example 1. (i) Facts. Corporation Q Example. (i) Facts. Plan A is amended to to provide section 204(h) notice if the maintains Plan A, a defined benefit plan that reduce significantly the rate of future benefit employer (or other person responsible covers all employees of Corporation Q, accrual effective January 1, 2003. Section for the tax) exercised reasonable including employees in its Division M. Plan 204(h) notice is required to be provided 45 diligence and corrects the failure within A provides that participating employees days before January 1, 2003. Timely section 30 days after the employer (or other cease to accrue benefits when they cease to 204(h) notice is provided to all applicable person responsible for the tax) first be employees of Corporation Q. On January individuals (and to each employee knew, or exercising reasonable diligence 1, 2006, Corporation Q sells all of the assets organization representing participants who of Division M to Corporation R. Corporation are applicable individuals), except that the would have known, that such failure R maintains Plan B, which covers all of the employer intentionally fails to provide existed. For purposes of section employees of Corporation R. Under the sale section 204(h) notice to certain participants 4980F(c)(1) of the Internal Revenue agreement, employees of Division M become until May 16, 2003. Code, a person has exercised reasonable employees of Corporation R on the date of (ii) Conclusion. The failure to provide diligence, but did not know that the the sale (and cease to be employees of section 204(h) notice is egregious. failure existed if and only if— Corporation Q), Corporation Q continues to Accordingly, for the period from January 1, (1) The person exercised reasonable maintain Plan A following the sale, and the 2003 through June 30, 2003 (which is the diligence in attempting to deliver employees of Division M become participants date that is 45 days after May 16, 2003), all section 204(h) notice to applicable in Plan B. participants and alternate payees are entitled (ii) Conclusion. No section 204(h) notice is to the greater of the benefit to which they individuals by the latest date permitted required because no plan amendment was would have been entitled under Plan A as in under this section; and adopted that reduced the rate of future effect before the amendment or the benefit (2) At the latest date permitted for benefit accrual. The employees of Division M under the plan as amended. delivery of section 204(h) notice, the who become employees of Corporation R (b) Effect of non-egregious failure to person reasonably believes that section ceased to accrue benefits under Plan A because their employment with Corporation provide section 204(h) notice. If an 204(h) notice was actually delivered to each applicable individual by that date. Q terminated. egregious failure has not occurred, the Example 2. (i) Facts. Subsidiary Y is a amendment with respect to which (c) Example. The following example illustrates the provisions of paragraph wholly owned subsidiary of Corporation S. section 204(h) notice is required may Subsidiary Y maintains Plan C, a defined become effective with respect to all (b) of this Q&A–15: benefit plan that covers employees of applicable individuals. However, see Example. (i) Facts. Plan A is amended to Subsidiary Y. Corporation S sells all of the section 502 of ERISA for civil reduce significantly the rate of future benefit stock of Subsidiary Y to Corporation T. At enforcement remedies. Thus, where accrual. The employer sends out a section the effective date of the sale of the stock of there is a failure, whether or not 204(h) notice to all affected participants and Subsidiary Y, in accordance with the sale other applicable individuals and to any agreement between Corporation S and egregious, to provide section 204(h) employee organization representing Corporation T, Subsidiary Y amends Plan C notice in accordance with this section, applicable individuals, including actual so that all benefit accruals cease. individuals may have recourse under delivery by hand to employees at worksites (ii) Conclusion. Section 204(h) notice is section 502 of ERISA. and by first-class mail for any other required to be provided because Subsidiary (c) Excise taxes. See section 4980F applicable individual and to any employee Y adopted a plan amendment that and Q&A–15 of this section for excise organization representing applicable significantly reduced the rate of future taxes that may apply to a failure to individuals. However, although the employer benefit accrual in Plan C. notify applicable individuals of a exercises reasonable diligence in seeking to Example 3. (i) Facts. As a result of an pension plan amendment that provides deliver the notice, the notice is not delivered acquisition, Corporation U maintains two for a significant reduction in the rate of to any participants at one worksite due to a defined benefit plans: Plan D covers failure of an overnight delivery service to employees of Division N and Plan E covers future benefit accrual or eliminates or provide the notice to appropriate personnel the rest of the employees of Corporation U. significantly reduces an early retirement at that site for them to timely hand deliver Plan E provides a significantly lower rate of benefit or retirement-type subsidy, the notice to affected employees. The error is future benefit accrual than Plan D. Plan D is regardless of whether or not the failure discovered when the employer subsequently merged with Plan E, and all of the employees is egregious. calls to confirm delivery. Appropriate section of Corporation U will accrue benefits under

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the merged plan in accordance with the plan termination are not satisfied, the plan (2) Transition rule. For amendments benefit formula of former Plan E. cannot be terminated until a date that is later applying after the statutory effective (ii) Conclusion. Section 204(h) notice is than December 31, 2003. date in paragraph (a)(1) of this Q&A–18 required. (ii) Conclusion. Nonetheless, because and prior to the regulatory effective date Example 4. (i) Facts. The facts are the same section 204(h) notice was given stating that as in Example 3, except that the rate of future the plan was amended to cease accruals on in paragraph (c) of this Q&A–18, the benefit accrual in Plan E is not significantly December 31, 2003, section 204(h) does not requirements of section 4980F(e)(2) and lower. In addition, Plan D has a retirement- prevent the amendment to cease accruals (3) of the Internal Revenue Code and type subsidy that Plan E does not have and from being effective on December 31, 2003. section 204(h), as amended by EGTRRA, the Plan D employees’ rights to the subsidy The result would be the same had the section are treated as satisfied if the plan under the merged plan are limited to benefits 204(h) notice informed the participants that administrator makes a reasonable, good accrued before the merger. the plan was amended to provide for a faith effort to comply with those (ii) Conclusion. Section 204(h) notice is proposed termination date of December 31, requirements. required for any participants or beneficiaries 2003 and to provide that ‘‘benefit accruals (3) Special notice rule—(i) In general. for whom the reduction in the retirement- will cease on the proposed termination date type subsidy is significant (and for any whether or not the plan is terminated on that Notwithstanding Q&A–9 of this section, employee organization representing such date.’’ However, neither section 4980F nor section 204(h) notice is not required by participants). section 204(h) would be satisfied with section 4980F(e) of the Internal Revenue Example 5. (i) Facts. Corporation V respect to the December 31, 2003 effective Code or section 204(h), as amended by maintains several plans, including Plan F, date if the section 204(h) notice had merely EGTRRA, to be provided prior to which covers employees of Division P. Plan stated that benefit accruals would cease ‘‘on September 7, 2001 (the date that is three F provides that participating employees cease the termination date’’ or ‘‘on the proposed months after the date of enactment of to accrue further benefits under the plan termination date.’’ when they cease to be employees of EGTRRA). Corporation V. Corporation V sells all of the (3) Additional requirements under (ii) Reasonable notice. The assets of Division P to Corporation W, which title IV of ERISA. See 29 CFR requirements of section 4980F and maintains Plan G for its employees. Plan G 4041.23(b)(4) and 4041.43(b)(5) for section 204(h), as amended by EGTRRA, provides a significantly lower rate of future special rules applicable to plans do not apply to any plan amendment benefit accrual than Plan F. Plan F is merged terminating under title IV of ERISA. that takes effect on or after June 7, 2001 with Plan G as part of the sale, and (b) Terminations in accordance with if, before April 25, 2001, notice was employees of Division P who become title IV of ERISA. A plan that is provided to participants and employees of Corporation W will accrue beneficiaries adversely affected by the benefits under the merged plan in accordance terminated in accordance with title IV of with the benefit formula of former Plan G. ERISA is deemed to have satisfied plan amendment (and their (ii) Conclusion. No section 204(h) notice is section 4980F and section 204(h) not representatives) which was reasonably required because no plan amendment was later than the termination date (or date expected to notify them of the nature adopted that reduces the rate of future benefit of termination, as applicable) and effective date of the plan accrual or eliminates or significantly reduces established under section 4048 of amendment. For purposes of this an early retirement benefit or retirement-type ERISA. Accordingly, neither section paragraph (a)(3)(ii), notice that complies subsidy. Under the terms of Plan F as in 4980F nor section 204(h) would in any with § 1.411(d)–6 of this chapter, as it effect prior to the merger, employees of event require that any additional appeared in the April 1, 2001 edition of Division P cease to accrue any further 26 CFR part 1, is deemed to be notice benefits (including benefits with respect to benefits accrue after the effective date of early retirement benefits and any retirement- the termination. which was reasonably expected to type subsidy) under Plan F after the date of (c) Amendment effective before notify participants and beneficiaries the sale because their employment with termination date of a plan subject to adversely affected by the plan Corporation V terminated. title IV of ERISA. To the extent that an amendment (and their representatives) Q–17. How are amendments to cease amendment providing for a significant of the nature and effective date of the accruals and terminate a plan treated reduction in the rate of future benefit plan amendment. under section 4980F and section 204(h)? accrual or a significant reduction in an (b) Regulatory effective date—(1) A–17. (a) General rule—(1) Rule. An early retirement benefit or retirement- General effective date. Except for Q&A– amendment providing for the cessation type subsidy has an effective date that 7(a)(2), Q&A–1 through Q&A–18 of this of benefit accruals on a specified future is earlier than the termination date (or section apply to amendments with an date and for the termination of a plan is date of termination, as applicable) effective date that is on or after subject to section 4980F and section established under section 4048 of September 2, 2003. 204(h). ERISA, that amendment is subject to (2) Effective date for Q&A–7(a)(2). (2) Example. The following example section 4980F and section 204(h). Q&A–7(a)(2) of this section applies to illustrates the rule of paragraph (a)(1) of Accordingly, the plan administrator amendments with an effective date that this Q&A–17: must provide section 204(h) notice is on or after January 1, 2004. (either separately, with, or as part of the Example. (i) Facts. An employer adopts an (c) Amendments taking effect prior to amendment that provides for the cessation of notice of intent to terminate) with June 7, 2001. For rules applicable to benefit accruals under a defined benefit plan respect to such an amendment. amendments taking effect prior to June on December 31, 2003, and for the Q–18. What are the effective dates of 7, 2001, see § 1.411(d)–6 of this chapter, termination of the plan pursuant to title IV section 4980F, section 204(h), as as it appeared in the April 1, 2001 of ERISA as of a proposed termination date amended by EGTRRA, and these edition of 26 CFR part 1. that is also December 31, 2003. As part of the regulations? notice of intent to terminate required under A–18. (a) Statutory effective date—(1) PART 602—OMB CONTROL NUMBERS title IV in order to terminate the plan, the General rule. Section 4980F and section UNDER THE PAPERWORK plan administrator gives section 204(h) REDUCTION ACT notice of the amendment ceasing accruals, 204(h), as amended by EGTRRA, apply to plan amendments taking effect on or which states that benefit accruals will cease ■ Par. 5. The authority citation for part ‘‘on December 31, 2003 whether or not the after June 7, 2001 (statutory effective plan is terminated on that date.’’ However, date), which is the date of enactment of 602 continues to read as follows: because all the requirements of title IV for a EGTRRA. Authority: 26 U.S.C. 7805.

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■ Par. 6. In § 602.101, paragraph (b) is SUPPLEMENTARY INFORMATION: to 27°51.89′ N, 082°36.14′ W closing off amended by adding the following entry entrance to the canal. Background and Purpose in numerical order to the table to read as This correction changes the follows: The Coast Guard published a final geographic description and positions to: rule in the Federal Register of March (15) Weedon Island, Tampa Bay, § 602.101 OMB Control numbers. 25, 2003 (68 FR 14328) establishing Florida. All waters of Tampa Bay, from * * * * * security zones in Tampa Bay, Port of surface to bottom, extending 50 yards (b) * * * Tampa, Port of Saint Petersburg, Port from the shore, seawall and piers Manatee, Rattlesnake, Old Port Tampa, around the Power Facility at Weedon CFR part or section where Current OMB Island encompassed by a line identified and described control No. Big Bend, Weedon Island, and Crystal River, Florida. In our discussion of the connecting the following points: rule and in paragraph (a)(14) of that 27°51.52′ N, 082°35.82′ W then north ***** rule, the geographic position, and east along the shore to 27°51.54′ N, 54.4980F–1 ...... 1545–1780 description, and size of the security 082°35.78′ W then north to 27°51.68′ N, zone for the Big Bend Power Facility 082°35.78′ W then north to 27°51.75′ N, ***** were erroneously published as: 082°35.78′ W closing off entrance to the (14) Big Bend, Tampa Bay, Florida. canal then north to 27°51.89′ N, David A. Mader, All waters of Tampa Bay, from surface 082°35.82′ W then west along the shore Assistant Deputy Commissioner of Internal to bottom, extending 50 yards from the to 27°51.89′ N, 082°36.10′ W then west Revenue. shore, seawalls and piers around the Big to 27°51.89′ N, 082°36.14′ W closing off Approved: March 27, 2003. Bend Power Facility, encompassed by a entrance to the canal. Pamela F. Olson, line connecting the following points: Need for Correction Assistant Secretary of the Treasury (Tax 27°47.85′ N, 082°25.02′ W then east and Policy). south along the shore and pile to This correction is needed to correct minor discrepancies in the coordinates [FR Doc. 03–8290 Filed 4–8–03; 8:45 am] 27°47.63′ N, 082°24.70′ W then north and physical description for fixed BILLING CODE 4830–01–P along the shore to 27°48.17′ N, 082°24.70′ W then north and west along security zones in waters adjacent to Big a straight line to 27°48.12′ N, 082°24.88′ Bend and Weedon Island Power facilities in Tampa Bay. DEPARTMENT OF HOMELAND W then south along the shore and pile SECURITY to 27°47.85′ N, 082°25.02′ W, closing off Correction of Publication entrance to the Big Bend Power Facility. ■ Coast Guard This correction changes the In rule FR Doc. 03–6982 published on geographic description and positions to: March 25, 2003 (68 FR 14328), make the 33 CFR Part 165 following corrections: (14) Big Bend, Tampa Bay, Florida. ■ a. On page 14329, in the third column, [COTP Tampa–03–006] All waters of Tampa Bay, from surface on lines 42 through 46, remove the words to bottom, adjacent to the Big Bend RIN 1625–AA00 ‘‘The security zone extends 50 yards Power Facility, and within an area from the shore or seawall and from all bounded by a line connecting the Security Zones; Tampa Bay, Port of piers around facilities. The security zone following points: 27°47.85′ N, Tampa, Port of Saint Petersburg, Port is bounded by the following points’’ and 082°25.02′ W then east and south along Manatee, Rattlesnake, Old Port Tampa, add, in their place, the words ‘‘It the shore and pile to 27°47.63′ N, Big Bend, Weedon Island, and Crystal includes all waters of Tampa Bay, from 082°24.70′ W then north along the shore River, FL; Correction surface to bottom, adjacent to the Big to 27°48.02′ N, 082°24.70′ W then north ° ′ Bend Power Facility, and within an area AGENCY: Coast Guard, DHS. and est along a straight line to 27 48.12 bounded by a line connecting the fol- ACTION: Temporary final rule; N, 082°4.88′ W then south along the ° ′ ° ′ lowing points’’. correction. shore and pile to 27 47.85 N, 082 25.02 ■ b. On page 14329, in the third column W, closing off entrance to the Big Bend on line 50 remove the latitude ‘‘27°48.17′ SUMMARY: The Coast Guard published a Power Facility. N’’ and add, in its place, the latitude final rule on March 25, 2003 In our discussion of the rule and in ‘‘27°48.02′ N’’. establishing security zones in Tampa paragraph (a)(15) of that rule, the ■ c. On page 14329, in the third column Bay, Port of Tampa, Port of Saint geographic positions and description for on line 69 remove the word ‘‘east’’ and Petersburg, Port Manatee, Rattlesnake, the Weedon Island Power Facility were add, in its place, the word ‘‘west’’. Old Port Tampa, Big Bend, Weedon erroneously published as: ■ d. On page 14330, in the first column Island, and Crystal River, Florida. The (15) Weedon Island, Tampa Bay, on line 1 remove the word ‘‘east’’ and rule erroneously listed the geographic Florida. All waters of Tampa Bay, from add, in its place, the word ‘‘west’’. positions, descriptions, and size of surface to bottom, extending 50 yards § 165.T07–006 [Corrected] security zones located in the waters from the shore, seawall and piers ■ e. On page 14332, in paragraph (a)(14), adjacent to the Big Bend and Weedon around the Power Facility at Weedon remove the words ‘‘extending 50 yards Island power facilities. This document Island encompassed by a line from the shore, seawalls and piers corrects the geographic positions, connecting the following points: around the Big Bend Power Facility, descriptions, and size of those security 27°51.52′ N, 082°35.82′ W then north encompassed by a line connecting the zones. and east along the shore to 27°51.54′ N, following points’’ and add, in their place, DATES: This correction is effective on 082°35.78′ W then north to 27°51.68′ N, the words ‘‘adjacent to the Big Bend April 9, 2003. 082°35.78′ W then north to 27°51.75′ N, Power Facility, and within an area FOR FURTHER INFORMATION CONTACT: 082°35.78′ W closing off entrance to the bounded by a line connecting the fol- LCDR Dave McClellan, Coast Guard canal then north to 27°51.89′ N, lowing points,’’ and remove the latitude Marine Safety Office, Tampa at 082°35.82′ W then east along the shore ‘‘27°48.17′ N’’ and add, in its place, the (813)228–2189/91 X 102. to 27°51.89′ N, 082°36.10′ W then east latitude ‘‘27°48.02′ N’’.

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■ f. On page 14332, in paragraph (a)(15) rulemaking process to prohibit PWC use continued PWC use must promulgate a on lines 14 and 15 remove the word throughout the National Park System. In park-specific special regulation. The ‘‘east’’ and add, in its place, the word response to the petition, the NPS settlement agreement acknowledged ‘‘west’’. proposed a specific PWC regulation that the NEPA analysis must, at a Dated: March 27, 2003. premised on the notion that PWC use minimum, evaluate PWC impacts on should be evaluated by the individual water quality, air quality, soundscapes, James M. Farley, park area to determine if the use is an wildlife, wildlife habitat, shoreline Captain, U.S. Coast Guard, Captain of the appropriate use of the park (63 FR vegetation, visitor conflicts, and visitor Port Tampa. 49312, Sept. 15, 1998). safety. [FR Doc. 03–8523 Filed 4–8–03; 8:45 am] The NPS envisioned the servicewide In 2001 the National Park Service BILLING CODE 4910–15–P regulation as an opportunity to evaluate adopted its revised NPS Management impacts from PWC use before Policies (NPS 2001) for the National authorizing the use. The preamble to the Park System. The policy document DEPARTMENT OF THE INTERIOR servicewide regulation calls the included a provision addressing PWC regulation a ‘‘conservative approach to use in park units and the need for National Park Service managing PWC use’’ considering the proper evaluation before authorizing use resource concerns, visitor conflicts, in a specific park unit (8.2.3.3). The 36 CFR Part 7 visitor enjoyment, and visitor safety. policy states that the use should be RIN 1024–AC91 During a 60-day comment period, the evaluated based on the park’s enabling NPS received nearly 20,000 comments. legislation, resources, values, other park Personal Watercraft Use at Lake Mead After reviewing the public comments uses, and overall management strategies. National Recreation Area and further review, the NPS On September 5, 2002, the National promulgated a final regulation that Park Service published a draft rule for AGENCY: National Park Service, Interior. prohibited PWC use in all units, until the operation of PWC at Lake Mead ACTION: Final rule. the individual park areas determine NRA (67 FR 56785–94). The proposed PWC appropriateness for continued use rule for PWC use was based on SUMMARY: This rule designates areas (36 CFR 3.24(a), 65 FR 15077–90, Mar. alternative C (the preferred alternative) where personal watercraft (PWC) may 21, 2000). The final rule provided a 2- in the Draft Environment Impact be used in Lake Mead National year grace period for 21 parks. Statement/Lake Management Plan Recreation Area, Nevada and Arizona. Specifically, the regulation allowed the (DEIS/LMP). The 60-day public This rule implements the provisions of NPS to designate PWC areas and to comment period on the proposed rule the National Park Service (NPS) general continue PWC use by promulgating a ran from September 5 to November 4, regulation authorizing parks to allow special regulation in park areas, 2002. the use of PWC by promulgating a including Lake Mead National Overview of Recreational Use and special regulation. The NPS Recreation Area. Ten NRA’s were given Personal Watercraft Management Policies 2001 provides that an additional option of authorizing PWC individual parks should determine use through the units’ superintendents’ The NPS is granted broad statutory whether PWC use is appropriate for a compendium (36 CFR 3.24(b)), but only authority under various acts of Congress specific park area based on an if the requirements of 36 CFR 1.5 were to manage and regulate water activities evaluation of that area’s enabling met. This additional designation in areas of the National Park System, 16 legislation, resources and values, other method was provided for in the units U.S.C. 1, 1a–2(h) and 3. The NPS visitor uses, overall management because of their congressional Organic Act, 16 U.S.C. 1 et seq., objectives, and consistent with the designation as national recreation areas authorizes the NPS to ‘‘* * * regulate criteria of the NPS for managing visitor and specific congressional intent to the use of Federal areas known as use. This rule authorizes the use of PWC provide for motorized watercraft use in national parks, monuments, and at Lake Mead National Recreation Area these parks. reservations * * * by such means and consistent with the Record of Decision In response to the PWC final measures as conform to the fundamental for Lake Management Plan. regulation, Bluewater Network sued the purpose of the said parks * * * which EFFECTIVE DATE: This rule becomes NPS. The organization challenged the purpose is to conserve the scenery and effective April 9, 2003. National Park Service decision to the natural and historic objects and the provide a 2-year grace period allowing wildlife therein and to provide for the ADDRESSES: Mail Inquiries to: Jim enjoyment of the same in such manner Holland, Management Assistant, Lake continued PWC use in 21 park units and by such means as will leave them Mead National Recreation Area, 601 while prohibiting PWC use in other park unimpaired for the enjoyment of future Nevada Way, Boulder City, Nevada units. In addition, the organization also generations.’’ Congress has also 89005. disputed the National Park Service decision to allow 10 park units the emphasized that the ‘‘*** FOR FURTHER INFORMATION CONTACT: Kym additional option of authorizing authorization of activities shall be Hall, Regulations Program Manager, continued PWC use after 2002 using the construed and the protection, National Park Service, 1849 C Street, procedures of the superintendents’ management, and administration of NW., Room 7413, Washington, DC compendium (36 CFR 1.5), which these areas shall be conducted in light 20240. Phone: (202) 208–4206. would not require the opportunity for of the high public value and integrity of SUPPLEMENTARY INFORMATION: public input through a notice and a the national park system and shall not comment rulemaking process. be exercised in derogation of the values Personal Watercraft Use and In response to the suit, the National and purposes for which these various Regulatory Background Park Service and the environmental areas have been established, except as In May 1998 the Bluewater Network, group negotiated a settlement. The may have been or shall be directly and a coalition of more than 70 resulting settlement agreement accepted specifically provided by Congress.’’ 16 organizations, filed a petition urging the by the court on April 12, 2001, required U.S.C. 1a–1. The appropriateness of a National Park Service to initiate the each of those parks authorizing visitor use or recreational activity will

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vary from park to park. NPS time, PWC were manufactured by four In response to comments from the Management Policies states that ‘‘*** companies, the first PWC magazines States of Arizona and Nevada, the the laws do give the Service the were published and the typical cost of proposed 100-foot flat wake zone management discretion to allow impacts a PWC was $6,600. around the entire lakes has been revised to park resources and values when From the mid-1980s through the to a 200-foot flat wake zone around necessary and appropriate to fulfill the 1990s, sales grew rapidly, then leveled beaches occupied by bathers, around purposes of a park, so long as the impact off starting in the mid-1990s. According boats at the shoreline and a person in does not constitute impairment of the to visitor use surveys in 1993, the use the water or at the shoreline. This affected resources and values’’ (1.4.3). of PWCs at Lake Mead NRA during this revision is more closely aligned with NPS Management Policies provide time constituted 15% of the boats on the existing Nevada boating law and allows further that, ‘‘* * * preserving park water at any one time. A rapid increase the NPS to move toward the goal of resources and values unimpaired is the in PWCs was observed in 1994, when providing unified boating law for the core, or primary responsibility of NPS their use jumped to 30% of the boats on interstate waters of Lakes Mead and managers * * *. In cases of doubt as to the water at any one time. Mohave. impacts of activities on park natural Today monitoring shows that PWC There are a number of actions that resources, the Service will decide in use constitutes 35% of the boats on the will require subsequent rulemaking in favor of protecting the natural water at any one time. There are 11,000 the implementation of the Lake resources.’’ (4: 1). PWC registered in Clark County, Nevada Management Plan. This rule has been The Organic Act and the other and thousands more in the region tailored specifically to address PWC statutory authorities of the NPS vest us surrounding Lake Mead NRA. The operation in response to the general with substantial discretion in highest densities are observed in the regulation in 36 CFR 3.24 prohibiting determining how best to manage park urban interface areas of Lake Mead and PWC use except by special regulation. resources and provide for park visitors. in the southern portions of Lake The National Park Service focused ‘‘Courts have noted that the Organic Act Mohave. specifically on PWC to prevent or is silent as to the specifics of park minimize the period that PWC use management and that under such Changes to the Final Rule would be restricted at Lake Mead NRA. circumstances, the NPS has broad Some changes have been made in the It is the National Park Service’s discretion in determining which Lake Management Plan/Final intention to move ahead with the avenues best achieve the Organic Act’s Environmental Impact Statement. Five additional rulemaking that will apply mandate * * *. Further, the NPS is percent of the park waters will be the flat-wake rule to all watercraft and to implement other aspects of the empowered with the authority to managed for primitive and determine what uses of park resources approved Lake Management Plan (LMP). semiprimitive recreational settings. This are proper and what proportion of the is an increase of three percent over the Discussion of Economic Effects of PWC park resources are available for each acreage in the draft rule. PWC use is Use use’’ Bicycle Trail Council of Marin v. prohibited in primitive and Babbitt, 82 F.3d 1445, 1454 (9th Cir. From an economic perspective, both semiprimitive zones. 1996), quoting National Wildlife alternative C (the continued use of PWC Federation v. National Park Service, 669 Bonelli Bay in the southern portion of in 95% of Lake Mead and other F. Supp. 384, 390 (D. Wyo. 1987). In the Virgin Basin was added to the restrictions as presented in this reviewing a challenge to NPS semiprimitive zone on Lake Mead, as rulemaking) and alternative D, which regulations at Everglades National Park, was the Lake Mead confluence with the would permit all two stroke engines and the court stated, ‘‘The task of weighing Muddy River. These two areas account PWC in all of Lake Mead, resulted in the the competing uses of Federal property for the increased acreage in the highest quantified net benefits, with have been delegated by Congress to the semiprimitive zoning over the draft alternative D resulting in a slightly Secretary of the Interior * * *. plan. The Overton Wildlife Management higher amount of net quantified Consequently, the Secretary has broad Area boundary defines the benefits. However, the National Park discretion in determining how best to semiprimitive area of the Muddy River Service chose alternative C because protect public land resources.’’ confluence and it is presently managed certain costs could not be quantified in Organized Fisherman of Florida v. during the waterfowl hunting season as the net economic benefits. Those costs, Hodel, 775 F.2d 1544, 1550 (11th Cir. a flat wake area. This revision prohibits relating to non-PWC use, aesthetics, 1985), cert. denied, 476 U.S. 1169 the use of PWC in the Overton Wildlife ecosystem protection, human health and (1986). Management Area year-round. safety, congestion, or non-use values, Over the years, NPS areas have been The recreational zoning in Black would likely be greater for alternative D impacted with new, and what often Canyon has been modified to allow than for alternative C. Given that the prove to be controversial, recreational additional boating access for five days quantified net benefits of alternatives C activities. These activities tend to gain per week during the peak boating season and D are already similar (see the table a foothold in NPS areas in their infancy, between Memorial Day and Labor Day below), further inclusion of these non- before a full evaluation of the possible each year. During this period the canyon quantified costs could reasonably result impacts and ramifications that will be managed as rural natural zone in alternative C having the greatest level expanded use will have on the area can with no special speed or horsepower of net benefits. Therefore, based on be initiated, completed and considered. restrictions. PWC use in the canyon is these factors, alternative C was PWC use fits this category. authorized during this period. The considered to provide the greatest level PWC use is a relative new recreational remainder of the year Black Canyon will of net benefits. activity at Lake Mead NRA. PWC, be managed for semiprimitive primarily stand-up models, were first conditions with a 65-horsepower Benefits observed on Lakes Mead and Mohave in maximum. As proposed in the LMP/ Alternative A, the no action the mid-1970s. In the 1980s, the first sit- DEIS, Black Canyon will be managed as alternative, represents the baseline down models were available with one- a primitive setting two days per week conditions of this rulemaking. Under or two-person capacities. During this (Sunday and Monday) year round. that alternative, all PWC use would be

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prohibited from the park. Alternatives B use PWCs and the businesses that producer surplus gains. Consumer and C would permit PWC use with provide services to PWC users such as surplus measures the net economic certain restrictions, and alternative D rental shops, restaurants, gas stations, benefit obtained by individuals from would permit PWC use as currently and hotels. Additional beneficiaries participating in their chosen activities, managed in the park. The benefits of include individuals who use PWCs while producer surplus measures the any alternative are measured relative to outside the park where PWC users net economic benefit obtained by the baseline conditions, which are displaced from the park may decide to businesses from providing services to represented by alternative A. Therefore, ride if PWC use within the park were individuals. These benefits, projected there are no incremental benefits prohibited. Benefits accruing to over a 10-year horizon, are summarized associated with alternative A. The individual PWC users are called in the table below. primary beneficiaries of alternatives B, consumer surplus gains, and those C, and D would be the park visitors who accruing to businesses are called

PRESENT VALUE OF PROJECTED INCREMENTAL BENEFITS UNDER ALTERNATIVES B, C, AND D, 2002–2012 [dollars]

PWC users Businesses Total

Alternative B: Discounted at 3% ...... 74,112,030 2,031,990–11,232,060 76,144,020–85,344,090 Discounted at 7% ...... 59,006,910 1,617,850–8,942,800 60,624,760–67,949,710 Alternative C: Discounted at 3% ...... 100,580,610 2,477,690–12,863,370 103,058,300–113,443,980 Discounted at 7% ...... 80,080,800 1,972,710–10,241,630 82,053,510–90,322,430 Alternative D: Discounted at 3% ...... 105,874,320 2,597,680–13,426,400 108,472,000–119,300,720 Discounted at 7% ...... 84,295,580 2,068,240–10,689,900 86,363,820–94,985,480

Costs PRESENT VALUE OF PROJECT NPS PRESENT VALUE OF QUANTIFIED NET As with the benefits described above, ENFORCEMENT COSTS UNDER AL- BENEFITS UNDER ALTERNATIVES B, the costs of any alternative are measured TERNATIVES B, C, AND D, 2001– C, AND D, 2002–2012—Continued relative to the baseline conditions, 2012—Continued [dollars] which are represented by alternative A. [dollars] Therefore, there are no incremental Discounted at 98,863,120–109,248,800 costs associated with alternative A. The Alternative D: 3%. Discounted at 78,728,420–86,997,340 primary group that would incur costs Discounted at 3% ...... 5,202,030 Discounted at 7% ...... 4,123,110 7%. under alternatives B, C, and D are the Alternative D: park visitors who do not use PWCs and Discounted at 103,269,970–114,098,690 whose park experiences would be Quantified Net Benefits 3%. negatively affected by PWC use within Discounted at 82,240,710–90,862,370 the park. At Lake Mead, non-PWC uses The quantified net benefits associated 7%. include boating, canoeing, fishing, and with alternatives B, C, and D are hiking. Additionally, the public could presented in the table below. These net Summary of Comments benefits do not account for the costs to incur costs associated with impacts A proposed rule was published for from alternatives B, C, and D to non-PWC users, or those relating to aesthetics, ecosystem protection, human public comment on September 5, 2002 aesthetics, ecosystem protection, human (67 FR 56785–94), with the comment health and safety, congestion, and non- health and safety, congestion, or non- use values due to a lack of available period lasting until November 4, 2002. use values. However, these costs could The NPS received 1,696 timely written not be quantified for all alternatives due data. Therefore, these net benefit estimates do not represent all costs. If responses regarding the proposed to a lack of available data. regulation. Of the responses, 1,636 were There are other costs associated with all costs could be incorporated, the indicated net benefits for each form letters in 3 separate form letter alternatives B, C, and D relating to NPS formats and 60 were individual letters. alternative would be lower. enforcement of PWC restrictions. Those There were 1,060 electronic mailings. Nevertheless, these estimates present a costs, projected over a 10-year horizon, Responses received included 51 from likely range of net benefits that can be are summarized in the table below. individuals, 2 from businesses, 5 from estimated from available information. organizations and 2 from public PRESENT VALUE OF PROJECT NPS agencies. ENFORCEMENT COSTS UNDER AL- PRESENT VALUE OF QUANTIFIED NET Within the analysis, the term TERNATIVES B, C, AND D, 2001– BENEFITS UNDER ALTERNATIVES B, ‘‘commenter’’ refers to an individual, 2012 C, AND D, 2002–2012 business, or organization that [dollars] [dollars] responded. The term ‘‘comments’’ refers to statements made by a commenter. Alternative B: Alternative B: General Comments Discounted at 3% ...... 3,523,950 Discounted at 72,620,070–81,820,140 Discounted at 7% ...... 2,793,080 3%. 1. There were a variety of Alternative C: Discounted at 57,831,680–65,156,630 commenters, including the Personal Discounted at 3% ...... 4,195,180 7%. Watercraft Industry Association and Discounted at 7% ...... 3,325,090 Alternative C: United States Coast Guard (USCG), who

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proposed the flat wake zone should specifically included in the final NPS Response: The ‘‘Introduction’’ apply to all motorized vessels. rulemaking. section of the ‘‘Environmental NPS Response: The National Park 4. Numerous commenters stated that Consequences’’ chapter under Service concurs with the commenters. the National Park Service is suggesting ‘‘Summary of Laws and Policies’’ in the The preferred alternative in the LMP has that one type of recreational experience draft and final EIS summarizes the three been modified and clearly applies the is more meaningful than another. overarching laws which guide the NPS flat wake zone to all motorized vessels. NPS Response: The NPS disagrees in making decisions concerning The intention of the flat wake zone is to that we place a higher value on a one protection of park resources. These provide a safe shoreline environment for type of recreational experience over laws, as well as others, are also reflected water recreation. The Lake Management another. The implication is that we in the NPS Management Policies. In Plan has been modified based on public place less value on PWC use than other addition, in the ‘‘Methodology’’ section comment and consultation with the forms of recreation. The Organic Act under the heading ‘‘Impairment respective states of Nevada and Arizona and the Lake Mead enabling legislation Analysis,’’ the EIS explains how the to read, ‘‘A 200-foot flat wake zone will are the standards by which the National NPS applied these laws and policies to be applied to all beaches occupied by Park Service manages recreational analyze the effects of PWC on Lake bathers, boats at the shoreline, activities. For Lake Mead NRA we have Mead park resources and values. swimmers in the water or persons at the evaluated PWC use and are authorizing An impairment to a particular park shoreline.’’ A future rulemaking will their continued use throughout 95% of resource or park value occurs when in extend this provision to all boats. the park waters. the professional judgment of the 2. The PWIA requested that PWC used 5. Many commenters believed they responsible NPS manager the impact for water-skiing and wakeboarding be should be able to use their USCG legal would harm the integrity of park permitted to launch from the shoreline boat in every waterway where similar resources or values, including the like other motorized boats. motorized boating activity occurs (i.e. opportunity that otherwise would be NPS Response: The NPS agrees. The water skiing, wake boarding, speed present for the enjoyment of those intention the Lake Management Plan is boating, etc.) They suggested the Lake resources or values. In making these to afford PWC the same setting for beach Mead regulation should be based on determinations, the NPS managers must consider the provisions of the park’s starts for water-skiing purposes as other engine type not hull design. enabling legislation. For each resource motorized boats. Persons operating NPS Response: The National Park topic, the draft and final EIS establishes boats would need to be at flat wake Service definition of PWC as noted in thresholds or indicators of magnitude of speed only if they are within 200-feet of the draft and final EIS under the impact. Should the impact approach a a beach occupied by bathers, a boat at ‘‘Purpose of and Need for the Plan’’ ‘‘major’’ level of intensity, it is one the shoreline or a person in the water or chapter, ‘‘Background’’ section under indication that impairment could result. at the shoreline. It is the intention to ‘‘Personal Watercraft Use Regulatory For each impact topic, when the apply this rule to all boats and this will Background’’ is as follows: Personal intensity approached ‘‘major,’’ the team be accomplished with a separate watercraft refers to a vessel, usually less would consider mitigation measures to rulemaking as described in the than 16-feet in length, which uses an reduce the potential for ‘‘major’’ preceding comment response. inboard, internal combustion engine impacts, thus reducing the potential for 3. There were a number of comments powering a water jet pump as its impairment. stating that restricted PWC use should primary source of propulsion. The In response to growing concern be permitted in Black Canyon. vessel is intended to be operated by a regarding potential impacts from PWC, NPS Response: The preferred person or persons sitting, standing, or the National Park Service began an alternative in the final environmental kneeling on the vessel, rather than extensive review and regulation process. impact statement (EIS) has been revised within the confines of the hull. While comments were received for recreational use of Black Canyon, As presented in the description of the opposing continued use of the vessel allowing restricted PWC use. The final alternatives in the draft and final EIS, within units of the park system, other EIS states, ‘‘In this area, temporal zoning the National Park Service evaluated and comments supported its use with would be applied, providing a range of chose the best regulatory approach in certain conditions designed to protect recreational settings. The area would be the preferred alternative in order to park resources and values. Recognizing managed for a primitive setting two maintain the opportunities for various that some units needed to complete days per week on a year-round basis. types of recreation while protecting the more local planning and analysis of Between Labor Day and Memorial Day, resources of the Lake Mead NRA. Some impact was needed, the final the area would be managed for a elements of the final EIS modified servicewide PWC regulation provided semiprimitive setting five days per preferred alternative/final rule, such as for specified local decision-making on a week. During the summer months the proposed recreational opportunity park by park basis. between Memorial Day and Labor Day, zoning, regulate PWC separately from The servicewide regulation the area would be managed for a rural other motorcraft, while other aspects, recognized the need for park areas natural setting with only houseboats, such as the flat wake zone and phase- wishing to continue PWC use to waterskiing, and wakeboarding out of old engine technology, regulates undertake and complete an analysis of prohibited. PWC use is consistent with engine type instead of hull design. the impacts to park resources and values the rural natural setting. However, due 6. We received numerous comments that could result from continued use. to the narrow canyon setting in Black citing the Organic Act and the mission In the draft and final EIS, three of the Canyon (zones 8 and 9), PWC use would of the National Park Service to leave the four alternatives analyzed various PWC be monitored during this period and resources and wildlife under its care scenarios, along with other vessel restricted if the safety of lake users ‘‘unimpaired for the enjoyment of future management and recreational objectives. becomes an issue. This would be generations.’’ We received a number of The alternatives also consider means to determined by observed/reported letters stating, federal law clearly mitigate the effects of PWC on park conflict information and boating prohibits activities that impair or resources and values, including limiting incidents.’’ This authorization has been derogate the NPA’s resources or values. use in areas where management

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objectives strive to create a visitor NRA (NPS 2002), use 2012 as engine for people to consider engine experience without these vessels or phase-in date when all two-stroke and compliance when making a purchase. where sensitive park resources must be four-stroke engines would have to Comments Related to Safety and Visitor protected. The modified preferred become fuel injected, in accordance Conflicts alternative in the final EIS includes with EPA regulations. This date would mitigation measures to protect other cover the current life expectancy 9. There were numerous comments park users from potential conflicts with specified by the Personal Watercraft stating that ‘‘much attention has been PWC (see the modified preferred Industry Association of 5 to 7 years and given to so-called ‘cleaner and quieter’ alternative in the ‘‘Environmental the EPA estimate of 10 years. Under PWC.’’ They say these machines do not Consequences’’ section of the FEIS), as alternative C (the modified preferred), solve all problems associated with the well as other measures to protect the National Park Service assumes that, PWC and cite recent research studies species of special concern, water, and as a result of PWC restrictions, that find that the new technology emits air resources. businesses could experience a 5% as much or more carbon monoxide and The conclusion of the modified reduction in PWC sales, service, and nitrogen oxide. preferred alternative in the final EIS, rentals related to the park. Some of this NPS Response: The NPS agrees that was that continued PWC use, would not impact could occur as a result of engine- the new technology will not solve all result in an impairment of park type restrictions, but there are also the problems, but they do provide major resources and values for which the Lake geographic restrictions proposed under improvements in a number of areas Mead Recreation Area was established this alternative that were taken into specifically in air quality and water to protect for future generations. account. However, even under quality. Although the cleaner four- 7. We received one comment from an alternative A, as detailed in the draft stroke and two-stroke direct injected individual who suggested we establish a and final EIS, where there would be a engines will emit more nitrogen oxide Citizens Recreational Taskforce to 100% reduction in PWC revenues due to a higher ratio of fuel actually address the future management of related to the park, the impact on the being burned, they emit less recreational use at Lake Mead NRA. regional economy would be very small, hydrocarbons, which reduces the NPS Response: The rule takes a less than 0.1% of total economic likelihood of ozone formation. The balanced approach to the management activity. newer engine technology will not of PWC use within Lake Mead NRA. It The National Park Service expects reduce impacts to wildlife from factors takes into consideration resource that by 2012, most boat owners would such as noise or use of the craft in close impacts, conflicts with other visitors’ already be in compliance with the 2006 proximity to wildlife but this problem is use and enjoyment and safety concerns. EPA marine engine standards. The common to all vessels to various It requires promulgation of park-specific impact from the engine standards on extents. However, phasing in of the new regulation which is the same regulatory boat owners is expected to be minimal. technology would reduce impacts to approach the National Park Service has PWC manufacturers currently offer aquatic and shoreline species by greatly taken to manage off-road vehicle use (36 some models that are compliant with reducing the discharge of fuel CFR 4.10), aircraft, including powerless EPA’s 2006 standards and PWC components such as benzene, toluene, hang-gliders (36 CFR 2.17), and use of purchased after 2006 would be made ethyl benzene, and BTEX into the water bicycles outside of developed areas (36 compliant. Because the life of a PWC is as stated in the draft and final EIS in the CFR 4.30(b)). This rule prohibits PWC estimated at 5 to 10 years (see final EIS, ‘‘Methodology’’ section in the use in areas where their use is the ‘‘Introduction’’ section in the ‘‘Environmental Consequences’’ inconsistent with the management ‘‘Purpose and Need for the Plan’’ chapter. objectives based on the Organic Act, chapter), it is expected that the majority The safety record of PWC at Lake enabling legislation, resources, values, of noncompliant PWCs would no longer Mead can be improved by measures and other visitor uses. The National Park Service met with a be in operation when the engine such as boater safety education. The wide variety of user groups concerning restrictions proposed under alternative preferred alternative in the draft EIS and the management of recreational use of C take effect in 2012. In addition, the modified preferred alternative in the park waters. A listing of these meetings according to industry reports, it appears final EIS proposes a requirement of and organizations is included in the that the trend for conversion is toward boater safety training for all vessel final EIS. These meetings represent the the four-stroke model engines instead of operators born after 1983. States such as National Park Service approach to direct injection two-stroke models. California report operator inexperience seeking specific user group input into According to the PWIA, the two top as the leading cause of PWC-related the planning and decision making selling PWC models for 2002 accidents (NTSB 1998). Boater process. Because the park plans to incorporated the four-stroke technology. education incorporating PWC-specific continue this process, we do not think Also, in discussions with PWC retailers instruction has been shown to reduce that a citizen’s recreational taskforce is in the vicinity of Lake Mead, NPS has PWC accidents in Connecticut and necessary. been informed that the majority of new Michigan (NTSB 1998). PWC purchases have been four-stroke The industry’s conversion to the four- Comments Related to Socioeconomic engines. stroke technology and the use of Resources It may be reasonable to assume that resonators is reducing the noise. 8. There were one or more people shopping before 2006 for new Manufacturers are using noise absorbing commenters who expressed concern for watercraft would only consider foam and rubber padding in the the impact of the rule on the local purchasing those models with construction of PWCs. Consequently, economies of Laughlin/Bullhead City compliant engines in response to the the newer technology used in PWC and the Las Vegas area. public announcement that only 2006- construction is addressing noise NPS Response: The estimates (under compliant engines would be allowed at concerns and improvements are being alternative C) presented in the Lake Mead NRA after 2012. It is the NPS observed at Lake Mead NRA. Economic Analysis of Personal intention that the 10-year advance 10. There were additional comments Watercraft Regulations in Lake Mead notice will provide ample opportunity concerning the safety record of PWC.

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NPS Response: Safety is an issue for use will be limited to flat wake speeds But if less than 100% of the PWCs in all boaters, including PWC users. and/or electric trolling motors. 2012 are the new technology reduced Boating safety issues for the Lake Mead emission PWCs, then the PWC Comments Related to the Phaseout of NRA are described in the ‘‘Recreational restriction will take effect and ensure Carbureted Two-Stroke Engines Use of the Lake’’ section of the that the resources of the park will be ‘‘Affected Environment’’ of the FEIS. 12. Some commenters cited the protected. Under the modified preferred inefficiency of the carbureted two-stroke Comments Related to General alternative, unified boating laws for engines. Environmental Impacts Lake Mead and Lake Mohave are NPS Response: We are concerned proposed, including the requirement of about pollution in any form, and 14. Some commenters were concerned boater safety education for any boater exhaust gasses from two-stroke marine that the Service often lacks site-specific born after 1983. When applicable, the engines is no exception. We recognize studies upon which to base a sound operator of a boat/vessel would be that a certain amount of exhaust smoke judgement on PWC use at Lake Mead. required to have in his/her possession, and smell is inherent with any two- The commenters also pointed out that proof of completion of a safety course cycle engine and that the comments the National Park Service appears to meeting the requirements of the addressed excessive amounts from overlook important studies which detail National Association of Boating Law PWC. We acknowledge the findings of the damage these machines cause to the Administrators while operating a boat/ the Environmental Protection Agency’s environment and wildlife. (EPA) 1991 study that indicate two- vessel. NPS Response: The NPS utilized site stroke engines lose roughly 25% of the Safety is further addressed under the specific studies to evaluate air quality, fuel they consume unburned into the modified preferred alternative in the water quality, cultural resources and water, resulting in high levels of final EIS, where a 200-foot flat wake visitor use in the LMP/FEIS. Shoreline hydrocarbon emissions from these zone would apply to beaches occupied vegetation in this arid setting is engines. The excessive smoke and smell by swimmers, boats at the shoreline, primarily composed of exotic salt cedar from PWC could be attributed to unique and people at the shoreline or in the so site specific inventories were limited operational characteristics of those water. Coordination with the states of vessels. PWCs are often operated with to sensitive inflow areas. Specific Nevada and Arizona would be required throttle settings that transition from idle studies were not initiated for the in order to achieve the desired to full throttle and back to idle, typically wildlife and soundscape analyses. uniformity of the proposed boating in a rapid and repeated sequence. In The NPS determined that site-specific regulations. response to these concerns, the rule will studies of PWC impacts on wildlife When implemented, these safety phase out the carbureted two-stroke were not necessary given the limited measures would increase the safety of engines over a 10-year period. extent of native shoreline vegetation and participating in all forms of recreation at 13. There were comments that its limited value to wildlife. As stated in Lake Mead NRA. Consequences of the suggested the 2012 prohibition on the ‘‘Natural and Cultural Resources’’ preferred alternative in relation to PWC carbureted two-stroke engines is section of the ‘‘Affected Environment’’ safety are described in the unnecessary. chapter of the draft and final EIS ‘‘*** ‘‘Environmental Consequences’’ section NPS Response: As noted in alternative the majority of the shoreline in the of the draft and final EIS. C in the draft and final EIS, two-stroke recreation area contains nonnative salt 11. We received comments that cited PWC and outboard vessels would be cedar (Tamarix spp.), with relatively user conflicts. Specific incidents barred from Lake Mead NRA beginning few areas supporting native vegetation. included conflicts between PWC and in 2012 as a result of the prohibition on Fluctuating water levels along the kayakers, fishermen, and swimmers. A carbureted two-stroke engines. shoreline make restoration of vegetation few PWC supporters said these conflicts However, even with the increasing communities impossible in most resulted from a minority of availability of new technology four- situations.’’ inconsiderate PWC operators and that stroke and direct injection two-stroke In those few areas where there is we should regulate inappropriate engines, it is estimated by EPA that by shoreline habitat that is valuable for behavior or enforce existing regulations 2012, they would only comprise wildlife, such as in the willow scrub rather than prohibit PWC use. approximately 50 percent of PWC in use inflow areas of the Virgin and Muddy NPS Response: The National Park at that time. Rivers where neotropical migratory Service is pursuing specific measures to According to the Personal Watercraft songbirds potentially nest, primitive provide a safe shoreline environment Industry Association, PWC models on and semiprimitive zones are proposed and to minimize conflict between user the market today include the new under the modified preferred alternative groups. Specifically, a 200-foot flat wake technology reduced-emissions vessels which would prohibit PWC use, zone is proposed around beaches (http://www.pwia.org waterskiing, and wakeboarding. Given occupied by bathers, boats at the facts_release.htm#qa) and the two top the overall lack of wildlife habitat along shoreline and people in the water or at selling models in 2002 were four-stroke most of the remainder of the National the water’s edge. This rule is designed models. The NPS has also learned in Recreational Area’s shoreline, and the to improve the shoreline environment discussion with local PWC retailers that fact that PWC would be prohibited in on both reservoirs. the majority of new PWC purchases the few areas that are deemed valuable In addition, 5% of the park waters have been four-stroke engines. The for wildlife, the park has identified have been zoned as primitive or industry shows this trend, combined sensitive vegetation and shoreline semiprimitive where the management with the relatively short operating life of habitat and has incorporated objectives are for a more quiet and PWC, which range from 5 to 10 years appropriate mitigation measures into tranquil setting. Visitors seeking this (depending on the source), would result the modified preferred alternative in the environment can visit these areas with in only a small number of PWC users final EIS. Regarding fisheries of Lake some expectation of slower speeds and who would be displaced when the Mead NRA, the modified preferred quieter boat operations. In these areas restrictions go into effect. The NPS alternative in the final EIS proposes to PWCs are prohibited and other boating hopes the industry prediction is correct. use temporal shoreline zonings to

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reduce and/or prevent impacts to shoreline when PWC were refueled by is the discharge of unburned gasoline shallow water spawning areas. owners/operators at sites other than fuel and gasoline additives from The U.S. Fish and Wildlife Service docks. conventional carbureted two-stroke Biological Opinion is included in the NPS Response: The refueling of boats engines, as well as the spilling of such final EIS in Appendix F. The biological at the shoreline is legal. Illegal refueling components during refueling (National opinion has concurred with the occurs when the refueling results in the Park Rulemaking at page 56790, DLMP/ National Park Service determination pollution or contamination of park EIS (Lake Management Plan/Draft EIS) that the preferred alternative is not waters. As noted in the final EIS under at pages 102, 133, 124, 188). PWC likely to jeopardize the continued alternative C, ‘‘Resource Protection’’ emissions in the Lake Mead area have existence of the Southwestern willow section, the spillage of fuel during already been reduced 25% below the flycatcher, bonytail chub, razorback shoreline operations is a concern at 1998 baseline conditions. sucker, or desert tortoise, and is not Lakes Mead and Mohave. Polluting or NPS Response: We agree that water likely to destroy or adversely modify contaminating park waters during quality impacts from PWC and other designated critical habitat for bonytail, refueling, including fuel spillage, is a carbureted two-stroke engines have razorback, or tortoise. In addition, the citable offense under 36 CFR, 2.14(a)(6). declined since 1998 due to the U.S. Fish and Wildlife Service agreed Safe refueling practices need to be conversion of carbureted two-stroke with the determination of no effect on included in boating safety courses. The engine technology to cleaner the bald eagle and Yuma clapper rail. National Park Service will recommend technology. However, our goals for the The mitigation adopted under the the States of Nevada and Arizona reduction of emissions cannot be modified preferred alternative in the include these procedures as part of the achieved without the proposed 2012 final EIS includes measures to protect boating education curriculum. restrictions. spawning and nesting areas. 16. A single commenter stated, the The final EIS addresses impacts from There is no definitive literature proposed rule, at page 56790, states that PWC use as well as all watercraft on describing scientific measurements of ‘‘based on fuel consumption estimates, Lake Mead and Lake Mohave. Four PWC noise (see DEIS, p. 144). To between 11⁄2 and 3 gallons of fuel is alternatives were analyzed. Alternative address this lack of scientific data, the discharged into the water during a two- A would continue the prohibition of use National Park Service contracted noise hour ride on a PWC.’’ The rule goes on of PWC in the Lake Mead NRA. measurements of motorized vessels, to say that during the summer weekends Alternative B would prohibit all including PWC, at Glen Canyon in 2001. in high use areas, there are as many as carbureted two-stroke engines beginning The noise source data from this study 1,700 PWCs on the lakes, which ‘‘could in 2004. Alternative C assumes a ban on was used in the Lake Mead draft and result in 1,275 and 3,400 gallons of two-stroke carbureted engines for all final EIS soundscape analysis because unburned fuel discharged per hour into vessels, including PWC, after 2012. the results were not dependent upon or Lakes Mead and Mohave combined.’’ Alternative D assumes that no ban influenced by park geology or other The commenter goes on to say that these would take place and that two-stroke environmental factors. statements are nonsense and supported engines would be converted in At Glen Canyon, sound measurements by no technical information. accordance with the Environmental were made of a number of boats and NPS Response: The National Park Protection Agency’s assumptions (40 PWC as they passed by a microphone Service is concerned about pollution in CFR parts 89–91, ‘‘Air Pollution mounted above the front of an any form and exhaust gasses from two- Control; Gasoline Spark-Ignition and instrumented boat. As stated in the stroke marine engines is no exception. Spark-Ignition Engines, Exemptions;’’ technical report (NPS, 2002 or HMMH, We recognize that a certain amount of rule, 1996). Alternative C (the modified 2002—Draft Technical Report on Noise: exhaust smoke and smell is inherent preferred alternative) is compared to Personal Watercraft and Boating with any two-stroke engine and that the alternative D because alternative D Activities at Glen Canyon National comment addressed excessive amounts allows for a mix of older model-two Recreation Area), controlled pass-by from PWC. We acknowledge the stroke carbureted engines with the EPA measurements of three PWC and one findings of the Environmental compliant cleaner engine models (two motorboat were conducted at several Protection Agency’s (EPA) 1991 study stroke fuel injected and four stroke different speeds. Many boats and PWC that indicate two stroke engines lose engines) through the life of the plan. A were also randomly measured. In all roughly 25% of the fuel they consume brief summary of the analysis of surface cases, a radar gun was used to unburned into the water, resulting in water quality impacts to Lakes Mead determine speed and a laser range finder high levels of hydrocarbon emissions and Mohave found in the Final EIS for was used for distance. After normalizing from these engines. The smoke and alternatives C and D are described measurements to a common distance, smell from PWC could be attributed to below. maximum sound levels were computed unique operational characteristics of The approach to evaluating surface both for 15 and 25 meters, the distance those vessels. PWC are often operated water quality impacts is found in at which National Park Service with throttle settings that transition Appendix G of the Final EIS. Engine watercraft noise emission regulations from idle to full throttle and back to conversion, restriction by engine type, apply. One of the conclusions from the idle, typically in a rapid and repeated and the total boating capacity used to measurements at Glen Canyon was that, sequence. These are the basis for the calculate impacts varies between except for the boats with V–8 engines above analysis. While some PWC are alternatives C and D. Alternative C uses (which were louder), no significant converting to the new technology, the a combined total boating capacity of differences were found in the sound percentage of the PWC fleet has not yet boats for both Lakes Mead and Mohave levels produced by PWC and the other made the conversion to the more of 5,055 boats at one time, while boats that were measured in the study. efficient models. Consequently, the alternative D uses a combined total calculation of the potential discharge is boating capacity of 5,800 boats at one Comments Related to Water Quality valid. time. These boating capacities reflect 15. Some comments expressed 17. One comment stated, the primary the heaviest use period of the summer. concern about the amount of raw fuel water quality concern that has been The threshold volumes required to meet spilled into the water or on the identified regarding continued PWC use water quality standards at Lake Mead

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under alternative C are 48% less than alternative D in 2012 because of the analysis are found in the water quality alternative D in 2012. The threshold combination of fewer boats on the water section of the Environmental volumes required to meet water quality in alternative C and the ban on two- Consequences section of the Final EIS standards at Lake Mohave under stroke carbureted engines after 2012. and in appendix H of the Final EIS. alternative C are 61% less than Complete results of the water quality

IMPACTS OF ALL WATERCRAFT ON SURFACE WATER QUALITY—THRESHOLD VOLUME OF WATER NEEDED TO MEET WATER QUALITY STANDARDS [In acre-feet]

Ecological benchmark Arizona Human health criteria standards for fish consumption Alt/Year Benzo Benzo (a)pyrene Naphthalene 1-methyl Benzene MTBE Benzo (a)pyrene Benzene (fuel and Naphthalene (a)pyrene (fuel and exhaust) (fuel and exhaust exhaust)

Lake Mead (assuming minimum pool elev. 1,150 feet, volume above thermocline 2,085,000 acre-feet)

C–2004 4,047 1,602 4,554 1,836 58 28,331 12,878 198,900 D–2004 4,593 1,818 5,167 2,083 66 32,149 14,613 225,702 C–2012 1,754 694 1,973 795 25 12,275 5,580 86,179 D–2012 3,371 1,334 3,793 1,529 48 23,597 10,726 165,662

Lake Mohave (assuming minimum pool elev. 634 feet, volume above thermocline 687,800 acre-feet)

C–2004 3,352 1,326 3,771 1,520 48 23,461 10,664 164,706 D–2004 3,925 1,553 4,416 1,780 56 27,473 12,488 192,874 C–2012 1,035 410 1,165 470 15 7,247 3,294 50,877 D–2012 2,652 1,049 2,983 1,203 38 18,561 8,437 130,307

18. One commenter stated, EPA has 19. There were a number of commenter’s (Personal Watercraft confirmed that studies show most commenters concerned that the Industry Association) assertion is unburned gasoline and gasoline changeover to four-stroke and two- principally based on confidential, additives emitted from two-stroke stroke direct injection PWC engines to proprietary PWC sales and forecast data marine engines evaporate from water meet the requirements of the EPA 2006 prepared by PWC manufacturers. This within the first hour and 15 minutes and CARB 2008 emission standards is proprietary data was not supplied with after they are released. More occurring much more rapidly than EPA the comment, and therefore has not specifically, at 86 degrees Fahrenheit and National Park Service has been available to the NPS. 84% of the unburned gasoline/additive estimated. Amounts of unburned fuel The commenter states that the data mix released into the water evaporated released at Lake Mead and Lake Mohave indicates that the conversion of PWC within 75 minutes. will accordingly continue to decline models to cleaner engines is occurring rapidly, achieving a reduction of more rapidly than anticipated in the NPS Response: We generally agree approximately 90% from the 1998 1996 EPA analysis of the effects of the with this comment. The commenter baseline levels by 2012. conversion rule. While the National includes a quantitative discussion of the NPS Response: In the water quality Park Service has no reason to doubt that volatility of many of the components analysis presented in the Final EIS, the PWC conversions and sales may be found in gasoline and gasoline additives assumption was made that clean proceeding at a greater rate than forecast emitted from carbureted two-stroke technology engines (any engine not by EPA, there is no survey or similar engines. As stated in the Final using carbureted two-stroke technology) data available at this time that indicates Environmental Impact Statement, many would be 90% cleaner than the that the engine mix at Lake Mead is organic pollutants that are initially carbureted two-stroke engines. Under proceeding at a faster or slower rate than dissolved in the water volatilize to the alternative C, conversion to all clean the EPA forecast. Therefore, use of the atmosphere, especially if they have high technology engines would be completed EPA rates is considered appropriate in vapor pressures, are lighter than water, by 2012, while alternative D uses the disclosing potential impacts to water and mixing occurs at the air/water rate of conversion of the engines from quality. interface (Final EIS, Methodology carbureted two-stroke to clean engines 20. One commenter stated the section, under Water Resources, consistent with the EPA rule, ‘‘Final National Park Service committed to Assumptions for Evaluating Impacts Rule for New Gasoline Spark-Ignition investigate the extent of oil and gas from Marine Engines, Including Marine Engines’’ (US EPA, 1996). The spills at refueling operations in the Lake Personal Watercraft). Therefore, NPS NPS used the EPA data where it was Mead NRA, and to mitigate the impacts analyses accounts for evaporative rates assumed that 21.6% of the carbureted from these activities. This will further in its methodology and believes it has two-stroke engines in use in 1998 would reduce the amount of unburned fuel accurately portrayed potential effects to be replaced by 2004 and that 58.4% released into the waters of the Lake water quality. would be replaced by 2012. One of the Mead NRA from PWC use. Expected

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reductions in PWC emission of which is considered preliminary In addition, according to industry unburned fuel and mitigation to limit chronic water quality criteria, of 51,000 reports, it appears that the trend for spills from refueling operations will µg/l was used. The table found in conversion is toward the four-stroke serve to alleviate any continuing response to Comment Number 17 shows model engines instead of direct concern regarding the possibility of a negligible impact from MTBE under injection two-stroke models. According surface oil sheen in areas of the modified preferred alternative to the PWIA, the two top selling PWC concentrated boating activity. (alternative C) and the baseline models for 2002 incorporated the four- NPS Response: As stated in the Final (alternative D). We are aware California stroke technology, which have shown to EIS in the Environmental Consequences has mandated removal of MTBE from produce fewer PAH emissions. Also, in section, under Impacts of Alternatives gasoline by next year, and the EPA is discussions with PWC retailers in the A, B, C, and D, Water Resources, considering doing the same within the vicinity of Lake Mead, NPS has been Impacts, the National Park Service near future. informed that the majority of new PWC provides best management practices for 22. One commenter is concerned that purchases have been four-stroke the handling of fueling areas and boat recent studies show that PAH emissions engines. If this trend in sales is realized maintenance for concessioners and the and it continues, PAH emissions would might increase as carbureted two-stroke boating public. The purpose of these be less than indicated in the analysis. PWC engines are replaced by direct practices is to reduce the pollutants injection two-stroke models and that Comments Related to Air Quality entering the lakes due to fueling and increased PAH emissions will have boat maintenance activities. With the 23. One commenter stated the adverse impacts on aquatic organisms in management requirements and public National Park Service analysis does not the Lake Mead NRA. The Kado study education reducing the levels of these reflect the dramatic decrease in PWC measured only PAH air emissions from impacts, the impacts would be expected hydrocarbon plus nitrogen oxides the test chamber while the outboard to be minor. NPS has agreed to evaluate (HC+NOX) emissions projected to occur engine ran in a water tank. The study the operations of all fueling facilities on over the next ten years that strongly Lakes Mead and Mohave. says nothing about what levels of PAHs suggests that the National Park Service’s 21. One commenter was concerned were deposited in water. It therefore can proposed ban on the use of carbureted that the USGS sampling data showed provide no basis whatsoever for two-stroke models after 2012 is the presence of the gasoline additive suggesting that the use of current and unnecessary. MTBE. The federal government, Nevada future direct injection two-stroke PWC NPS Response: As part of the Final or Arizona have not established engines present a risk to aquatic Environmental Impact Statement (EIS) standards or maximum contaminant organisms or will impair water for the Lake Management Plan, the levels for MTBE. EPA has adopted an resources in the Lake Mead NRA. National Park Service prepared a advisory level of 20–40 µg/l for drinking NPS Response: PAHs were addressed quantitative analysis of air quality water. The highest sample measured by in the draft and final EIS in the issues impacts for each of the proposed USGS was 4.16 µg/l, well below this and impact topics and water quality alternatives. The Final EIS analysis EPA advisory level. The reduction in section of Environmental Consequences. addressed emissions of all watercraft, PWC engine emissions (as well as Text in the draft EIS impact analysis including PWC, on Lakes Mead and emissions from other marine engines) at (alternatives B, C and D) was changed in Mohave. Four alternatives were Lake Mead since the sample was the final EIS to read, ‘‘* * * changing analyzed. Alternative A would continue measured in 1999 is not likely to be from carbureted two-stroke engines to the prohibition of PWC in the Lake repeated. two-stroke fuel-injected engines may Mead NRA. Alternative B would NPS Response: The water intake that result in increases of airborne prohibit all carbureted two-stroke delivers drinking water to the Las Vegas particulate-associated PAH. Further engines beginning in 2004. Alternative Valley is located at an elevation of 1,050 research, outside the scope of this C assumes a ban on two-stroke feet above mean sea level in Lake Mead, planning effort, is needed to identify carbureted engines for all vessels, while the elevation of the lake surface what impact this would have on PAH including PWC, after 2012. Alternative is usually above 1,180 feet. This puts concentrations in water.’’ However, the D assumes that no ban would take place the intake at a depth of 130 feet or more. preferred alternative, which bans two- and that two-stroke engines would be Gasoline compounds have not been stroke carbureted engines after 2012, converted in accordance with the detected in water samples regularly would greatly reduce the impact of Environmental Protection Agency’s taken near the water intake by staff of petroleum emissions on water quality. assumptions (40 CFR parts 89–91, ‘‘Air the Southern Nevada Water System. In PWC would contribute 19% of total Pollution Control; Gasoline Spark- addition, the testing at water intake hydrocarbon pollution in Lake Mead in Ignition and Spark-Ignition Engines, facilities has shown that levels of these 2012. Given the volume of available Exemptions;’’ rule, 1996 ). The Final EIS compounds do not exceed advisory water in Lake Mead for mixing these emission projections for HC and NOX standards. compounds, NPS concludes the impact for alternatives C and D are shown in In the analysis presented in the Final to water quality and aquatic organisms the table below. Emission forecasts for EIS in Table 50, Toxicity Benchmarks, is minor and would not result in other pollutants and for alternatives A the ecological benchmark for MTBE, impairment to park resources. and B are included in the Final EIS.

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ESTIMATED HYDROCARBON AND NITROGEN OXIDES EMISSIONS FOR ALTERNATIVES C AND D [Tons per year]

Alternative C 1 Alternative D 2 Difference 3 2004 2012 2004 2012 2012

Percent of carbureted two-stroke engines replaced ...... 21.6% 100% 21.6% 58.4% All All All All All Pollutant watercraft PWC watercraft PWC watercraft PWC watercraft PWC watercraft PWC

Hydrocarbons (HC)...... 904 689 360 199 918 701 659 467 299 268 Nitrogen oxides (NOX) ...... 159 16 186 40 161 16 174 28 ¥12 ¥12 HC+NOX ...... 1063 705 546 239 1079 717 833 495 287 256 1 Alternative C (modified preferred alternative): After 2012, all boats on the lakes would be compliant with the EPA 2006 emission standards. 2 Alternative D (baseline alternative): By 2012, 58.4% of carbureted two-stroke engines on the lakes would be compliant with the EPA 2006 emission standards. Using EPA’s assumptions, by 2025, 75% of engines on the lakes would be compliant with the EPA emission standards. 3 Difference between alternative C and alternative D in 2012. Negative values indicate an increase in NOX emissions.

Note that in 2004 the conversion of assumes a faster conversion. The reductions targeted by the EPA for 2006 carbureted two-stroke engines to cleaner commenter assumes that emissions be achieved in California by 2001. The engines is assumed to be the same for would be reduced because a significant California rule then requires further both alternatives C and D, but the portion of PWC would be cleaner than emission reductions by 2004 and 2008 emissions for alternative D would be EPA requirements due to compliance (title 13, California Code of Regulations, higher than for alternative C. This with the more restrictive California sections 2440–2448). The commenter would occur because alternative D requirements. However, our goals for assumes that 50% of the PWC users at would allow more watercraft to be in the reduction of emissions can not be Lake Mead will be from California and operation, compared to alternative C. achieved without the proposed 2012 all will have CARB-compliant The important result shown in the restrictions. watercraft, and that, because of above table is that in 2012, alternative 24. One commenter expressed manufacturing and sales efficiencies C would result in 287 fewer tons per concern that PWC emissions are outside of California, an additional 25% year of HC+NOX than alternative D. declining faster than forecast by the of the Lake Mead PWC users will have Alternative C proposed elimination of EPA. The existing fleet of PWC has CARB-compliant watercraft. The these annual emissions through the life achieved a 25% reduction in the pre- National Park Service concurs that of the plan (2003 through 2023) would 1999 baseline of HC+NOX emissions, many watercraft users at Lake Mead be a significant contribution to the and will achieve over an 80% reduction have California-registered PWC, and efforts to reduce ozone concentrations by 2012. that they will meet the California Air in the region. This is because even NPS Response: The comment is Resources Board standards. though the cleaner four-stroke and two- principally based on two assumptions There is no data relative to PWC at stroke direct injected engines will emit made by the commenter. The first is Lake Mead to confirm the 75% figure based on confidential, proprietary PWC assumed by the commenter. The more NOX due to a higher ratio of fuel actually being burned, they emit less sales and forecast data prepared by PWC National Park Service emissions hydrocarbons which reduces the manufacturers. No supporting data was calculations are conservative only in the supplied with the comment. The likelihood of ozone formation. sense that it does not specifically commenter states that the data indicates account for watercraft that have already Emission levels shown in the table that the conversion of PWC models to or will be converted to meet California above are not directly comparable with cleaner engines is occurring more Air Resources Board standards. This is the emission levels submitted by the rapidly than anticipated in the 1996 not considered ‘‘overly’’ conservative commenter because the National Park EPA analysis of the effects of the because 50% of the park visitors Service—Air Quality Division calculates conversion rule. While the National originate from California, and a certain emissions on an annual basis, and the Park Service has no reason to doubt that percentage of these visitors will have commenter’s calculations are for an PWC conversions and sales may be PWC that are compliant with the EPA average boating day during the boating proceeding at a greater rate than forecast 2006 rule. There is currently no data to season. Some assumptions made for by EPA, there is no survey or similar support or refute this 75% estimate. National Park Service calculations are data available at this time indicating the Under the preferred alternative, the more conservative than those used for engine conversion at Lake Mead is engines would be 100% compliance commenter’s calculations. The National proceeding at a faster or slower rate than after 2012. Park Service assumed that the the EPA forecast. Therefore, use of the 25. One commenter stated that PWC conversions from carbureted two-stroke EPA rates is considered appropriate— emissions of HC+NOX at Lake Mead engines to cleaner engines would occur and use of an accelerated rate may be during the boating season were 3.9 tons at the rate forecast by the Environmental considered speculative without per day prior to 1999, and are estimated Protection Agency. As shown in the additional supporting data. at 2.9 tons per day for 2002 and 0.7 tons table above for tons per year of The second assumption by the per day in 2012. Clark County, Nevada estimated hydrocarbon and nitrogen commenter is that 75% of the PWC at emissions are estimated at 450 tons per oxides emissions for alternatives C and Lake Mead will have engines that day. Therefore, PWC emissions at Lake D, 21.6% conversion is assumed from comply with the California (CARB) Mead pose no public health risks. 1998 levels by 2004, and 58.4% conversion rule for all years, which NPS Response: The NPS-estimated conversion by 2012. The commenter requires that marine engine emission emissions are a small fraction of Clark

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County emissions. The NPS-estimated acknowledges in the final EIS that Lake Mead NRA, and are known to nest emissions are on the same order of further research is needed to identify in certain areas. Monitoring has been magnitude as those presented by the what effect the conversion of two-stroke conducted by the San Bernardino commenter, even though the NPS carburated engines to two stroke fuel County Museum, the Bureau of estimates a larger amount of emissions. injected engines would have on PAH Reclamation, and the National Park The argument that a single source has concentrations in water. Service. The most recent published negligible impact because of its small In speaking with local PWC report (McKernan and Braden 2002) for size compared to all the sources in the businesses the NPS was informed that the 2001 field season found flycatchers region is not valid. This point was the majority of newer PWC models at the Virgin River-Lake Mead delta. In effectively stated in Kings County Farm being sold are four-stroke engines, not addition, since 1997, flycatchers have Bureau v. City of Hanford, a 1990 two-stroke fuel injected engines, but no been observed breeding along the lower California case that has been widely specific data is available. These Muddy River on the Overton Wildlife publicized and used in subsequent comments concerning four-stroke sales Management Area, within Lake Mead environmental analyses. The Kings are consistent with statements made by NRA. There have also been flycatchers County case also addressed the impacts PWIA that nationally the two top-selling observed in the lower Grand Canyon, of ozone-forming pollutants, and PWC models are four-stroke models. adjacent to the recreation area, in emphasized that each source is Nevertheless, while conversion of some suitable habitat at Lake Mohave. important when considering cumulative carbureted two-stroke engines to direct- As stated in the draft and final EIS impacts. injected two-stroke engines would result under the ‘‘Affected Environment’’ Clark County is currently in in increased PAH emissions, the section, much of the shoreline areas of attainment of the federal 1-hour ozone concurrent conversion to four-stroke Lakes Mead and Mohave have riparian standard. The EPA has not yet made engines would result in reduced PAH stands that are comprised of non-native attainment designations for the 8-hour emissions. As shown by the commenter, tamarisk, or are too young to provide ozone standard that was promulgated in using Kado data, the combined PAH suitable nesting habitat. However, 1997 but was delayed by litigation in emissions of one direct-injected two- several areas have been determined implementation. Preliminary data stroke engine and one four-stroke engine suitable, and nest sites have been indicates that Clark County might not would be slightly less than the PAH located. Of particular importance are the attain the 8-hour ozone standard (http:/ emissions of the two carbureted two- sensitive inflow areas, which will be /www.epa.gov/ttn/naaqa/ozone/areas/ stroke engines that would be replaced. protected by zoning for primitive and maps/nv8hr.gif). Therefore, reduction of Therefore, the increase or decrease of semi-primitive settings. In addition, if emissions from all sources in the county PAH emissions as carbureted two-stroke surveys find nesting pairs elsewhere is an issue. engines are converted to cleaner engine along Lakes Mead and Mohave, closing As shown in the previous responses, types would depend on the relative the area under temporal zoning could be the proposed elimination of two-stroke numbers of the types of cleaner engines. implemented to protect these sites. carbureted engines from Lake Mead The speculation of the mix of engine 29. One commenter takes issue with NRA after 2012 would result in a types would not appreciably change the impact discussion on shorebirds and substantial reduction in emissions, and NPS conclusions made in the final EIS. other wildlife. They state, ‘‘on the basis would contribute to the improvement of 27. Continued PWC use on Lake Mead of anecdotal evidence (chiefly testimony air quality in Clark County. under the proposed rule will not pose from park staff) the proposed rule 26. National Park Service notes that any adverse health risks for park visitors concludes that PWCs could disturb recent studies suggest changing from under even the ‘‘worst case’’ airborne wildlife through the interruption of two-stroke carbureted to two-stroke PAH concentrations that could normal activities, alarm or flight, direct injection PWC engines might theoretically be generated by the avoidance and displacement of habitat, increase PAH emissions. A study by vessels. and nest abandonment. The term Norman Y. Kado et al, Airborne Particle NPS Response: A relevant study ‘‘could’’ demonstrates that National Emissions from 2- and 4-stroke concluded that there are some health Park Service has not obtained evidence Outboard Marine Engines: Polycyclic effects associated with PAH emissions. that such disturbance actually occurs at Aromatic Hydrocarbon and Bioassay (See Environmental and Occupational Lake Mead NRA.’’ Analysis, (Kado study) quantified PAH Exposure to Toxic Air Pollutants from NPS Response: There are many concentrations in airborne particulate Winter Snowmobile Use in Yellowstone studies that relate to the impacts of emissions. The Kado study showed that National Park (Kado, Kuzmicky, and motorized vessels, including PWC, on the PAH emissions from the direct- Okamoto)). Therefore the NPS cannot shorebirds, bald eagles, and other injected two-stroke engines tested were support a conclusion as the commenter wildlife. These studies were considered greater than from carbureted two-stroke suggests, that PWC use at Lake Mead in the development of the draft and final engines. The direct-injected two-stroke would pose no adverse health risks from EIS. Buffer zones to protect foraging and outboard engine used in that study was toxic air pollutant emissions; however loafing waterbirds from disturbance by a 1999 model and represented very early the final EIS does acknowledge that the personal watercraft in Florida (Rodgers technology, and the results of the study impact would likely be minor. 2000) determined that a buffer zones for are not applicable to newer model motorized vessels would protect direct-injection outboard engines, much Comments Related to Wildlife and waterbirds. Effects of Motorboats and less PWC engines. Wildlife Habitat Personal Watercraft on Flight Behavior NPS Response: The commenter rejects 28. One commenter questions the over a Colony of Common Terns (Burger the applicability of the Kado study to occurrence of the Southwestern willow 1998) showed disturbance responses newer engines including PWC engines. flycatcher at the inflow areas of the from the use of motorized vessels, and However, since no comparable data for Muddy and Virgin Rivers and stated recommended speed and distance newer engines was presented, and many that no Southwestern willow flycatchers restrictions close to tern colonies. older engines would be allowed to nest within Lake Mead NRA. Effects of Recreational Activities on operate at the recreation area through NPS Response: Southwestern willow Wintering Bald Eagles (Stalmaster and 2012, the Kado study is relevant. NPS flycatchers have been recorded within Kaiser 1998) showed that high

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recreational use, including foot traffic spawning habitats of the razorback known to spawn in April and May, it and motorized vessels, can disrupt sucker, given that the fish spawn can be hypothesized that some feeding activities. between January and April, when few disturbance impacts from recreational In addition, National Park Service people visit Lake Mead NRA. use could temporarily affect the bonytail biologists provided information related NPS Response: Fish species have been chub spawning activities. In addition, to disturbance from motorized vessels to shown to be negatively affected by bony tail chub are known to spawn in birds and other wildlife, and motorized watercraft emissions (Oris, et the southern portion of Lake Mohave, information pertaining to the sensitive al. 1998). As stated in the draft and final just north of Katherine Landing. This shoreline areas around Lakes Mead and EIS, temporary disturbance to spawning area receives increased use starting in Mohave. This information was used in razorback suckers from the use of May, when spawning activities are the draft and final EIS for developing motorized vessels has been observed by known to occur. mitigation and monitoring activities, biologists conducting fish monitoring Fish species have also been shown to and in establishing protective measures activities (Marsh 2001). Visitation is be negatively affected by motorized for wildlife within the recreation area. currently low during spawning, and is watercraft emissions (Oris, et al. 1998). These measures, including establishing likely to remain low between January Reduced water quality could harm primitive and semi-primitive zones in and April, when the fish are spawning. aquatic organisms through algae blooms, the selected shoreline areas, will protect Therefore, the impact from the suspended solids and turbidity, and sensitive bird species from disturbance continued use of motorized vessels is oxygen depletion. However, Lake associated with the use of motorized considered not likely to adversely affect Mohave holds an immense amount of vessels, including noise that flushes the the razorback sucker, and is not likely water, with a large volume of water birds, and wakes that disrupt nests. to jeopardize the continued existence of flowing through the system. Therefore, 30. There was concern expressed this species. In addition, under the even though there are contaminants about the occurrence of the Yuma mitigation outlined in the U.S. Fish and entering the system from motorized clapper rail. One commenter references Wildlife Service Biological Opinion and vessels and from other sources such as the draft rule where it states that while in the draft and final EIS, biologists fuel spills and parking lot runoff, these the inflow areas of the Muddy and from Lake Mead NRA will continue to contaminants have not been recorded at Virgin Rivers contain habitat that might work with the Native Fish Work Group concentrations that are known to result support the endangered Yuma clapper to monitor fish species and visitation to in impairment to the aquatic system or rail, no confirmed sightings have determine if temporal zoning of to human health. occurred within the recreation area. The spawning areas is necessary to further The National Park Service is required EIS concurs with this statement. protect razorback suckers and their by law and policy to survey for, protect, However, on page 56788, the proposed habitat. The Native Fish Workgroup is and strive to recover all species native rule contradicts itself, and states composed of representative of Federal incorrectly that the Yuma clapper rail and State agencies as well as scientists to the national park system units that resides at Lake Mead NRA. with the respective state universities. are listed under the Endangered Species Clearly, the Yuma clapper rail cannot 32. One commenter noted the Act (Management Polices 2001). The be said to ‘‘occupy’’ the shoreline or proposed rule claims that use of policy further states that the National habitat of Lake Mead NRA if no one has motorized vessels, including PWCs Park Service will undertake active ever seen it at the lake. This mistake ‘‘likely’’ disturbs bonytail chubs management programs to inventory, should be corrected in the final rule. attempting to spawn in Lake Mead NRA. monitor, restore, and maintain listed NPS Response: Suitable habitat for the Again, no technical studies have been species’ habitats, including controlling Yuma clapper rail does occur within the conducted to support these hypotheses. detrimental visitor access, and recreation area, in particular, in the NPS Response: According to the U.S. enhancing critical habitat. The National inflow areas of the Muddy and Virgin Fish and Wildlife Service Biological Park Service and the U.S. Fish and Rivers. The commenter is correct that no Opinion, appendix G of the final EIS, Wildlife Service have determined that Yuma clapper rail have been recorded the largest remaining populations of the temporal zoning which could be within the recreation area. They have bonytail chub in the wild are in Lake imposed around spawning habitat been recorded nearby in the Virgin Mohave and in Lake Havasu. Both would protect these species, and could River area. This has been corrected in populations are the result of stocking enhance critical habitat. As stated in the the final rule. young fish born from the existing Biological Opinion, the use of temporal 31. There was one comment on the broodstock into the declining wild zoning will not be imposed until razorback sucker. The commenter points populations. Efforts are underway by recommended by Federal biologists out the proposed rule states that the U.S. Fish and Wildlife Service and working in consultation with the Native biologists have studied the effect of the Bureau of Reclamation to refine Fish Workgroup. motorized vessels on razorback sucker rearing techniques and develop Comments Related to Soundscape spawning areas at Lake Mead NRA for additional rearing facilities to increase 10 years, and have concluded that such production. 33. One commenter suggested the vessels, when passing through these While it is true that no technical National Park Service should insist that areas interrupt spawning and generally studies have been conducted to study all watercraft have the quieter four- interfere with the reproductive process. the impacts of recreational use on the stroke engines. Nor do they include the studies or their bonytail chub, as stated in the draft and NPS Response: The final rule would data as appendices. As a result, the final EIS, scientists who have studied phase out the carbureted two-stroke public and other scientists have no native fish in the recreation area in the engines over a 10-year period. The rule ability to determine whether the past 10 years have observed that would only allow the use of direct conclusions drawn by the ‘‘biologists’’ motorized use around spawning areas of injection two-stroke engines and four- are valid. This is poor science. In razorback suckers can temporarily stroke engines. Direct inject two-stroke addition, it appears that the proposed disrupt spawning activities, and the and four-stroke engines have been rule may be overstating the effects of same is likely true for bonytail chub shown to be quieter than the carbureted PWCs and other vessels on the (Marsh 2001). Since bonytail chub are two-stroke engines. The NPS does not

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believe it is necessary to require only alternative of the final EIS would dBA at 4 feet. Other conditions that four-stroke engines. provide for a peaceful and tranquil could contribute to PWC noise of 102 34. We received a number of visitor experience. In areas such as dBA at distances greater than 4 feet comments citing a variety of concerns Black Canyon, where a diverse range of would be PWC operation without a over the noise associated with PWC use. visitors use a variety of nonmotorized muffler or with a faulty muffler, and if In almost all cases this noise was and motorized watercraft, the National the noise was measured when the PWC characterized as ‘‘annoying’’. Specific Park Service would temporally zone this was airborne. This response is not to concerns included the constant and unique area to accommodate all users imply that 102 dBA is a typical PWC repeated fluctuation in engine tone and and provide experiences that range from noise, but to indicate that while a data pitch as PWCs enter and exit the water tranquil to more rural and mechanized. point of 102 dBA without description is while jumping wakes, changing speed All alternatives include plans and of little value. and performing other quick maneuvers policies for enforcement of noise 38. One commenter stated, ‘‘The along with the persistent noise regulations. These elements of the National Marine Manufacturers associated with remaining in one Environmental Impact Statement are Association has published a Model general location rather than traveling consistent with NPS Management Noise Act for use by state legislatures or from point-to-point. Policies. other agencies with jurisdiction over the NPS Response: National Park Service 35. One commenter stated, testing at manufacture and operation of Management Policies for Soundscapes, the Glen Canyon National Recreation watercraft. The Model Noise Act as stated in Management Policies 2001 Area indicate that the maximum noise promotes regulation or legislation that (4.9), require superintendents to levels for PWC are lower than the would prohibit the operation of ‘‘identify what levels of human-caused maximum noise levels for other watercraft in a manner to exceed 75 sound can be accepted within the motorized vessels. dBA at the shoreline. The model noise management purposes of parks. The NPS Response: It is more appropriate act would also promote regulation or sound considered acceptable will vary to say that maximum noise levels for legislation that would prohibit the throughout the park, being generally PWC were found to be similar to manufacture of watercraft that could not greater in developed areas and generally outboards and inboards of similar size operate in compliance with the 75 dBA lesser in undeveloped areas * * *. The and power. The Glen Canyon test data standard.’’ service will take action to prevent or show that, except boats with V–8 NPS Response: The 75 dBA shoreline minimize all noise that * * * exceeds engines (V–8 ‘‘muscle boats’’), which noise level limit is consistent with a levels that have been identified as being were clearly louder than all other craft, relatively recent state of Nevada acceptable to, or appropriate for, visitor at a given speed, the noise levels of standard that will be enforced at Lake uses at the sites being monitored.’’ PWC were sometimes greater and Mead (Nevada Administrative Code Management Policies for Visitor Use sometimes less than those of other Section 488.460). The National Park (8.2) indicate that unless mandated by watercraft. Service is currently revising boating 36. One commenter stated, since statute, the National Park Service will regulations and is proposing to adopt 1998, PWC engine sound levels have not allow visitors to conduct activities the 75 dBA standard and will encourage that would unreasonably interfere with been reduced by up to 70%. the state of Arizona to adopt a similar the atmosphere of peace and tranquility, NPS Response: NPS has standard. or the natural soundscape maintained in acknowledged that the newer model wilderness and natural, historic, or PWC are quieter than the older models. Drafting Information One might interpret a reduction from commemorative locations within the The principal authors of this final rule 100 to 30 decibels (dBA) as a 70% park. are: Jim Holland, Management As written in the enabling legislation, reduction. A noise level reduction of 5.2 Assistant, Lake Mead NRA; Kevin the management purpose of Lake Mead dBA results from a 70% reduction in Hendricks, Assistant Chief Ranger, Lake is to provide public recreation, benefit, noise sources, for example if one had 10 Mead NRA; Nancy Hendricks, Resource and use in a manner that will preserve, like machines running, and turned off 7 Management Specialist, Lake Mead develop, and enhance, so far as of them. It is commonly accepted that NRA; Kym Hall, Regulations Program practicable, the recreation potential and people perceive a 10 dBA reduction in Manager, National Park Service; and preserve the scenic, historic, scientific, noise as about half (50%) as loud, such Michael Tiernan, Office of the Solicitor, and important features of the area. that a 70% reduction by perception Department of the Interior. Recreational uses specifically listed in would be something greater than 10 the act include bathing, boating, dBA. However the NPS can not state the Compliance with Other Laws camping, and picnicking. Various levels exact percentage of sound emissions Regulatory Planning and Review of sound are associated with some of between the various models. those uses, such as boating and PWC, 37. The commenter notes opponents (Executive Order 12866) and are consistent with the park’s of PWC have claimed that the vessels This document is a significant rule purpose as defined by the legislation. emit noises as high as 102 decibels, and has been reviewed by the Office of To provide a ‘‘peaceful and tranquil’’ without specifying distances or the Management and Budget under experience in some locations, PWC use method of sound measurement. These Executive Order 12866. would be prohibited within the unsubstantiated claims are refuted by (1) This rule will not have an effect of primitive and semiprimitive the National Park Service’s recent $100 million or more on the economy. recreational opportunity zones. These testing at Glen Canyon, and cannot be It will not adversely affect in a material zones also place restrictions on wake reproduced under accepted sound way the economy, productivity, speed and identify acceptable motor measurement standards. competition, jobs, the environment, types, such as electric trolling motors in NPS Response: As noted in the public health or safety, or State, local, primitive zones. These prohibitions or comment, no distance was specified for or tribal governments or communities. restrictions in alternatives B and C (the the 102-decibel (dBA) measurement. A This determination is based upon the preferred alternative) of the draft and noise source of 76 dBA at 82 feet, which findings in a report prepared by the final EIS and the modified preferred was measured for a PWC, would be 102 National Park Service entitled

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‘‘Economic Analysis of Personal Small Business Regulatory Enforcement National Environmental Policy Act Watercraft Regulations in Lake Mead Fairness Act (SBREFA) The National Park Service has National Recreation Area’’ (Law This rule is not a major rule under 5 analyzed this rule in accordance with Engineering and Environmental U.S.C. 804(2), the Small Business the criteria of the National Services, Inc., March 2002). The focus of Regulatory Enforcement Fairness Act. Environmental Policy Act and has this study was to document the impact The National Park Service has prepared a draft Environmental Impact of this rule on a variety of small entities completed an economic analysis to Statement (EIS). The draft EIS was made including PWC dealerships and repair make this determination. This rule: available for public review and shops, PWC rental business, and other a. Does not have an annual effect on comment on April 24, 2002, and the local businesses that provide services to the economy of $100 million or more. final EIS was made available for public PWC users. The Economic Analysis may b. Will not cause a major increase in review on January 10, 2003. A copy of be viewed on the Lake Mead Web site costs or prices for consumers, the LMP/FinalEIS is available on the at http://www.nps.gov/lame. individual industries, Federal, State, or Lake Mead NRA Web page (http:// local government agencies, or www.nps.gov/lame/planning), at (2) This rule will not create a serious geographic regions. inconsistency or otherwise interfere regional libraries or a copy may be c. Does not have a significant adverse obtained by contacting the with an action taken or planned by effect on competition, employment, Superintendent, Lake Mead NRA. another agency. Actions taken under investment, productivity, innovation, or this rule will not interfere with other the ability of U.S.-based enterprises to Government-to-Government agencies or local government plans, compete with foreign-based enterprises. Relationship With Tribes policies, or controls. This is an agency Unfunded Mandates Reform Act In accordance with the President’s specific rule. memorandum of April 29, 1994, This rule does not impose an (3) This rule does not alter the ‘‘Government to Government Relations unfunded mandate on State, local, or budgetary effects of entitlements, grants, with Native American Tribal tribal governments or the private sector Governments’’ (59 FR 22951) and 512 user fees, or loan programs or the rights of more than $100 million per year. The or obligations of their recipients. This DM 2: We have evaluated potential rule does not have a significant or effects on federally recognized Indian rule will have no effects on unique effect on State, local or tribal entitlements, grants, user fees, or loan tribes and have determined that there governments or the private sector. This are no potential effects. programs or the rights or obligations of rule is an agency specific rule and their recipients. No grants or other imposes no other requirements on other Administrative Procedures Act forms of monetary supplements are agencies, governments, or the private This final rule will be effective upon involved. sector. publication in the Federal Register. In (4) This rule raises novel legal or Takings (Executive Order 12630) accordance with the Administrative policy issues. This rule is among the Procedures Act, specifically, 5 U.S.C. In accordance with Executive Order first of its kind for managing PWC use 553 (d)(1), this rule (36 CFR 7.48 (g)) is 12630, the rule does not have significant in National Park Units and the first for exempt from the requirement of takings implications. A taking managing use in a National Recreation publication of a substantive rule not less implication assessment is not required. Area. The National Park Service than 30-days before its effective date. No taking of personal property will published general regulations (36 CFR As discussed in the preamble of this occur as a result of this rule. 3.24) in March 2000, requiring rule, the final rule is a part 7 special individual park areas to adopt special Federalism (Executive Order 13132) regulation for Lake Mead National regulations to authorize PWC use. The In accordance with Executive Order Recreation Area that relieves the implementation of the requirements of 13132, the rule does not have sufficient restrictions imposed by the general the general regulation continues to federalism implications to warrant the regulation, 36 CFR 3.24. The general generate interest and discussion from preparation of a Federalism Assessment. regulation, 36 CFR 3.24, prohibits the the public concerning the overall effect This proposed rule only affects use of use of personal watercraft in units of the of authorizing PWC use and National NPS administered lands and waters. It national park system unless an Park Service policy and park has no outside effects on other areas by individual park area has designated the management. allowing PWC use in specific areas of use of personal watercraft by adopting a the park. part 7 special regulation. The proposed Regulatory Flexibility Act rule was published in the Federal Civil Justice Reform (Executive Order Register (67 FR 56,785) on September 5, The Department of the Interior 12988) 2002, with a 60-day period for notice certifies that this document will not In accordance with Executive Order and comment consistent with the have a significant economic effect on a 12988, the Office of the Solicitor has requirements of 5 U.S.C. 553 (b). The substantial number of small entities determined that this rule does not Administrative Procedures Act, under the Regulatory Flexibility Act (5 unduly burden the judicial system and pursuant to the exception in (d)(1), U.S.C. 601 et seq.). The preferred meets the requirements of sections 3(a) waives the section 553 (d) 30-day alternative C, which would allow PWC and 3(b)(2) of the Order. waiting period when the published rule use in 95% of Lake Mead, is expected ‘‘grants or recognizes an exemption or to result in net economic benefits to Paperwork Reduction Act relieves a restriction.’’ In this rule the those small businesses in the Lake Mead This regulation does not require an NPS is authorizing the use of PWCs, area that rent or sell personal watercraft. information collection from 10 or more which is otherwise prohibited by 36 This net benefit is compared to the parties and a submission under the CFR 3.24. As a result, the 30-day baseline, or alternative A, which is a Paperwork Reduction Act is not waiting period does not apply to the complete ban of PWC in the Lake Mead required. An OMB form 83-I is not Lake Mead National Recreation Area National Recreation Area. required. final rule.

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The Attorney General’s Manual on the Register and provided 60 days for PART 7—SPECIAL REGULATIONS, Administrative Procedures Act, public comments. The public comments AREAS OF THE NATIONAL PARK explained that the ‘‘reason for this received are summarized and analyzed SYSTEM exception would appear to be that the in this rule. Also as part of this process, ■ 1. The authority citation for part 7 con- persons affected by such rules are the park prepared an environmental tinues to read as follows: benefited by them and therefore need no impact statement (EIS) that was made time to conform their conduct so as to available to the public on April 24, Authority: 16 U.S.C. 1, 3, 9a, 460(q), avoid the legal consequences of 2002, for public review and comment. 462(k); sec. 7.96 also issued under DC Code 8–137(1981) and DC Code 40–721 (1981). violation. The fact that an interested The EIS evaluated the various person may object to such issuance, alternatives for managing PWC use at ■ 2. Section 7.48 is amended by adding amendment, or repeal of a rule does not Lake Mead, including an alternative paragraph (g) to read as follows: change the character of the rule as being with no PWC use. This rule will now one ‘‘granting or recognizing exemption § 7.48 Lake Mead National Recreation implement the preferred alternative Area. or relieving restriction’’, thereby identified in the EIS with some changes exempting it from the thirty-day as a result of the public comments * * * * * (g) Personal Watercraft (1) A person requirement.’’ This rule is within the received on both the proposed rule and scope of the exception as described by may launch and operate a personal the draft EIS. the Attorney General’s Manual and the watercraft in park waters or beach a 30-day waiting period should be ‘‘In determining whether to invoke personal watercraft on park lands, waived. See also, Independent U.S. the exception, the agency is ‘required to except in the following areas: Tanker Owners Committee v. Skinner, balance the necessity for immediate (i) In the designated Primitive area 884 F.2d 587(DC Cir. 1989). In this case, implementation against principles of known as the Gypsum Beds, which is the court found that (d)(1) is a statutory fundamental fairness which require that described as Arizona T31N; R20W exception that applies automatically for all affected persons be afforded a Portions of sections 2, 3, 10 and 11; and substantive rules that relieves a reasonable time to prepare for the (ii) In the designated Primitive area restriction and does not require any effective date of its ruling.’’’ The known as the Virgin River, which is justification to be made by the agency. Northern Arapahoe Tribe v. Hodel, 808 described as Nevada T36N; R68E ‘‘In sum, the good cause exception must F.2d 741, 752 (10th Cir. 1987). Since the Portions of Sections 25, 26, 34, 35, 36; be invoked and justified; the (d)(1) primary purpose of the 30-day waiting and exception applies automatically’’ at 591. period is so the public can prepare for (iii) In the designated Primitive/ The facts are that Lake Mead National the changes caused by the new rule. Semiprimitive area in Black Canyon, Recreation Area is promulgating this This rule authorizes the continued use from the Willow Beach Harbor to special regulation for the purpose of of PWCs at Lake Mead National Hoover Dam, prohibited from the first relieving the restriction, prohibition of Recreation Area and will not require Tuesday following Labor Day weekend PWC use, imposed by 36 CFR 3.24 and any changes that will require a 30-day through Friday of Memorial Day weekend; and prohibited only on therefore, the (d)(1) exception applies to waiting period for the public to prepare Sundays and Mondays from the Sunday this rule. itself. Because of the ongoing grace In accordance with the of Memorial Day weekend through the period, PWC use has been allowed to Administrative Procedures Act, this rule Monday of Labor Day weekend, which continue at Lake Mead despite the is also excepted from the 30-day waiting is described as Nevada T22S; R65E prohibition in 36 CFR 3.24. The intent period by 5 U.S.C. 553 (d)(3) and is Portions of Sections 32; T23S; R65E effective upon publication in the of the grace period was to provide time Portions of Sections 5, 8, 17, 20, 21, 28, for parks, such as Lake Mead National Federal Register. As discussed above, 29, 34; T231⁄2S; R65E Portions of the purpose of this rule is to comply Recreation Area, to promulgate special Sections 34; T23S; R65E Portions of with 36 CFR 3.24 requirement for regulations without having the Sections 1, 2, and 12. Arizona T30N; authorizing PWC use in park areas by prohibition of 36 CFR 3.24 take effect R23W Portions of Sections 3, 10, 15, 22, promulgating a special regulation. ‘‘The and, for other parks that decided not to 27, 34; T29N; R23W Portions of Sections legislative history of the APA reveals promulgate special regulations 2, 12, 13; T29N; R22W Portions of that the purpose for deferring the authorizing PWC use such as Cape Cod Sections 18, 19, 20, 29; and effectiveness of a rule under section National Seashore and Delaware Water (iv) In the designated Semiprimitive 553(d) was ‘to afford persons affected a Gap National Recreational Area, to give area known as the Muddy River reasonable time to prepare for the people additional time to adjust their Confluence with Lake Mead (Overton effective date of a rule or rules or to take recreational use patterns, i.e., find Wildlife Management Area), which is other action which the issuance may alternative places to use their PWCs. described as Nevada T16S; R68E prompt.’ S.Rep. No. 752, 79th Cong., 1st There is no need to utilize the 30-day Portions of Sections 28, 29, 32, 33 and Sess.15 (1946); H.R. Rep. No. 1980, 79th waiting period for the benefit of the 34 and T17; R68E; and Cong., 2d Sess. 25 (1946).’’ United affected parties, instead there is good (v) In the designated Semiprimitive States v. Gavrilovic, 551 F.2d 1099, cause for making this rule effective area known as Grand Wash Bay, which 1104 (8th Cir. 1977). The persons upon publication so that affected parties is described as Arizona T33N; R16W affected by this rule are PWC users and can continue using PWCs. Portions of Sections 16, 17, 21, 22, 27, delaying the implementation of this rule 28, 29, 33 and 34, and T321⁄2 N; R16W for 30-days will not benefit them; but List of Subjects in 36 CFR Part 7 Portions of Sections 32 and 33; and instead will be counterproductive by District of Columbia, National parks, (vi) In the designated Semiprimitive denying them, for an additional 30-days, Reporting and recordkeeping area known as Bonelli Bay, which is the benefits of the rule. requirements. described as Arizona T31N; R20W The rule has been developed in full Portions of Sections 4, 5, 7, 8, 9, 16, 17, compliance with section 553(b) and (c) ■ In consideration of the foregoing, the 18, 19, 20, 21, 29 and 30. rulemaking requirements. The proposed National Park Service amends 36 CFR (2) A person may not operate a rule was published in the Federal part 7 as follows: personal watercraft at a speed in excess

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of flat wake speed within 200 feet of any Washington, DC 20460–0001; telephone added to 40 CFR part 180 in the Federal beach occupied by bathers, boats at the number: (703) 308–6422; e-mail address: Register issue of February 19, 2003, (68 shoreline, or persons in the water or at [email protected]. FR 7939) (FRL–7178–6). Inadvertently, the shoreline. SUPPLEMENTARY INFORMATION: the tolerance exemption for decanoic (3) After December 31, 2012, no one acid was assigned § 180.1223, which may operate a personal watercraft that I. General Information had previously been assigned to another does not meet the 2006 emission A. Does this Action Apply to Me? pesticide which was published in the standards set by EPA for the Federal Register issue of February 14, The Agency included in the final rule manufacturing of two-stroke engines. A 2003 (68 FR 7433) (FRL–7291–3). This a list of those who may be potentially person operating a personal watercraft document corrects the section number affected by this action. If you have that meets the EPA 2006 emission for the Decanoic acid tolerance questions regarding the applicability of standards through the use of direct- exemption. this action to a particular entity, consult injection two-stroke or four-stroke the person listed under FOR FURTHER III. Why is this Correction Issued as a engines, or the equivalent thereof, is not INFORMATION CONTACT. Final Rule? subject to this prohibition and will be allowed to operate as described in this B. How Can I Get Copies of this Section 553 of the Administrative section. Document and Other Related Procedure Act (APA), 5 U.S.C. (4) The Superintendent may limit, Information? 553(b)(B), provides that, when an Agency for good cause finds that notice restrict, or terminate access to the areas 1. Docket. EPA has established an designated for PWC use after taking into and public procedure are impracticable, official public docket for this action unnecessary or contrary to the public consideration public health and safety, under docket identification (ID) number natural and cultural resource protection, interest, the agency may issue a final OPP–2002–0272. The official public rule without providing notice and an and other management activities and docket consists of the documents objectives. opportunity for public comment. EPA specifically referenced in this action, has determined that there is good cause * * * * * any public comments received, and for making today’s technical correction Dated: March 28, 2003. other information related to this action. final without prior proposal and Paul Hoffman, Although a part of the official docket, opportunity for comment, because EPA Deputy Assistant Secretary for Fish and the public docket does not include is merely correcting the section number Wildlife and Parks. Confidential Business Information (CBI) that was inadvertently assigned to the [FR Doc. 03–8546 Filed 4–8–03; 8:45 am] or other information whose disclosure is Decanoic acid tolerance exemption. EPA restricted by statute. The official public BILLING CODE 4310–70–P finds that this constitutes good cause docket is the collection of materials that under 5 U.S.C. 553(b)(B). is available for public viewing at the Public Information and Records IV. Do Any of the Statutory and ENVIRONMENTAL PROTECTION Integrity Branch (PIRIB), Rm. 119, Executive Order Reviews Apply to this AGENCY Crystal Mall #2, 1921 Jefferson Davis Action? 40 CFR Part 180 Hwy., Arlington, VA. This docket This final rule implements a technical facility is open from 8:30 a.m. to 4 p.m., correction to the CFR, and it does not [OPP–2002–0272; FRL–7296–9] Monday through Friday, excluding legal otherwise impose or amend any holidays. The docket telephone number requirements. As such, the Office of Decanoic Acid; Exemption from the is (703) 305–5805. Management and Budget (OMB) has Requirement of a Pesticide Tolerance; 2. Electronic access. You may access determined that a technical correction is Technical Correction this Federal Register document not a ‘‘significant regulatory action’’ AGENCY: Environmental Protection electronically through the EPA Internet subject to review by OMB under Agency (EPA). under the ‘‘Federal Register’’ listings at Executive Order 12866, entitled http://www.epa.gov/fedrgstr/. A Regulatory Planning and Review (58 FR ACTION: Final rule; technical correction. frequently updated electronic version of 51735, October 4, 1993). Nor does this SUMMARY: EPA issued a final rule in the 40 CFR part 180 is available at http:// final rule contain any information Federal Register of February 19, 2003, www.access.gpo.gov/nara/cfr/ collection requirements that require _ _ _ establishing an exemption from the cfrhtml 00/Title 40/40cfr180 00.html, review and approval by OMB pursuant requirement of a tolerance for residues a beta site currently under development. to the Paperwork Reduction Act of 1995 of decanoic acid (capric acid) in or on An electronic version of the public (PRA) (44 U.S.C. 3501 et seq.). all foods when applied/used as a docket is available through EPA’s Since the Agency has made a ‘‘good component of a food contact surface electronic public docket and comment cause’’ finding that this action is not sanitizing solution in food handling system, EPA Dockets. You may use EPA subject to notice-and-comment establishments. This document makes a Dockets at http://www.epa.gov/edocket/ requirements under the APA or any technical correction to the exemption to submit or view public comments, other statute (see Unit III.), this action from the requirement of a tolerance for access the index listing of the contents is not subject to provisions of the decanoic acid to correct typographical of the official public docket, and to Regulatory Flexibility Act (RFA) (5 errors. access those documents in the public U.S.C. 601 et seq.), or to sections 202 docket that are available electronically. and 205 of the Unfunded Mandates DATES: This document is effective on Once in the system, select ‘‘search,’’ Reform Act of 1995 (UMRA) (Public February 19, 2003. then key in the appropriate docket ID Law 104–4). In addition, this action FOR FURTHER INFORMATION CONTACT: number. does not significantly or uniquely affect Adam Heyward, Antimicrobials small governments or impose any Division, (7510C), Office of Pesticide II. What Does this Correction Do? enforceable duty or contain any Programs, Environmental Protection An exemption from the requirement unfunded mandate as described under Agency, 1200 Pennsylvania Ave., NW., of a tolerance for decanoic acid was Title II of the Unfunded Mandates

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Reform Act of 1995 (UMRA) (Public agency promulgating the rule must the State’s changes through this Law 104–4). submit a rule report, which includes a immediate final action. The EPA is This final rule will not have copy of the rule, to each House of the publishing this rule to authorize the substantial direct effects on the States or Congress and to the Comptroller General revisions without a prior proposal on one or more Indian tribes, on the of the United States. EPA will submit a because we believe this action is not relationship between the national report containing this rule and other controversial and do not expect government and the States or one or required information to the U.S. Senate, comments that oppose it. Unless we get more Indian tribes, or on the the U.S. House of Representatives, and adverse comments which oppose this distribution of power and the Comptroller General of the United authorization during the comment responsibilities among the various States prior to publication of this final period, the decision to authorize the levels of government or between the rule in the Federal Register. This final Oklahoma Department of Environmental Federal government and Indian tribes. rule is not a ‘‘major rule ’’ as defined by Quality’s (ODEQ) revisions to their As such, this action does not have any 5 U.S.C. 804(2). hazardous waste program will take ‘‘federalism implications’’ as described effect. If adverse comments are received, in Executive Order 13132, entitled List of Subjects in 40 CFR Part 180 we will publish a document in the Federalism (64 FR 43255, August 10, Environmental protection, Federal Register either: A withdrawal of 1999), or any ‘‘tribal implications’’ as Administrative practice and procedure, the immediate Final decisions and a described in Executive Order 13175, Agricultural commodities, Pesticides separate document in the proposed entitled Consultation and Coordination and pests, Reporting and record keeping rules section of this Federal Register with Indian Tribal Governments (65 FR requirements. will serve as a proposal to authorize the 67249), November 6, 2000). Dated: March 17, 2003. changes, or a document containing a Since this final rule is not a response to comments and which either James Jones ‘‘significant regulatory action’’ as affirms that the immediate Final defined by Executive Order 12866, it Director, Office of Pesticide Programs. decision takes effect or reverses the does not require OMB review or any ■ Therefore, 40 CFR part 180 is corrected decision. Agency action under Executive Order as follows: EFFECTIVE DATE: This immediate final 13045, entitled Protection of Children PART 180—[AMENDED] rule is effective on June 9, 2003, unless from Environmental Health Risks and EPA receives adverse written comments Safety Risks (62 FR 19885, April 23, ■ 1. The authority citation for part 180 by May 9, 2003. Should EPA receive 1997), and is not subject to Executive continues to read as follows: such comments, it will publish a timely Order 13211, Actions Concerning document either: Withdrawing the Regulations That Significantly Affect Authority: 21 U.S.C. 321(q), 346(a) and 371. immediate final publication or affirming Energy Supply, Distribution, or Use (66 ■ 2. In FR Doc. 03–3843, published in the publication and responding to FR 28355, May 22, 2001). comments. This action does not involve any the Federal Register of February 19, technical standards that require the 2003, (68 FR 7939) (FRL–7278–6), in the ADDRESSES: Written comments, referring Agency’s consideration of voluntary 3rd column, the number 2 instruction is to Docket Number OK–01–03, should be consensus standards pursuant to section corrected to read ‘‘2. Section 180.1225 is sent to Alima Patterson Region 6 12(d) of the National Technology added to subpart D to read as follows:’’ Regional Authorization Coordinator, Transfer and Advancement Act of 1995 and that the section heading is corrected Grants and Authorization Section (6PD– (NTTAA), Public Law 104–113, section to read as follows: G), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross 12(d) (15 U.S.C. 272 note). § 180.1225 Decanoic acid; exemption from This action will not result in the requirement of a tolerance. Avenue, Dallas, Texas 75202–2733. environmental justice related issues and Copies of Oklahoma program revision [FR Doc. 03–8370 Filed 4–8–03; 8:45 am] does not, therefore, require special application and the materials which consideration under Executive Order BILLING CODE 6560–50–S EPA used in evaluating the revisions are 12898, entitled Federal Actions to available for inspection and copying Address Environmental Justice in from 8:30 a.m. to 4 p.m. Monday ENVIRONMENTAL PROTECTION through Friday at the following address: Minority Populations and Low-Income AGENCY Populations (59 FR 7629, February 16, Oklahoma Department of Environmental 1994) or Executive Order 12630, entitled 40 CFR Part 271 Quality, 707 North Robinson, Oklahoma Governmental Actions and Interference City, Oklahoma 73101–1677, (405) 702– with Constitutionally Protected Property [FRL–7479–1] 7180 and EPA Region 6, 1445 Ross Rights (53 FR 8859, March 15, 1988). Avenue, Dallas, Texas 75202–2733, Oklahoma: Final Authorization of State (214) 665–6444. In issuing this final rule, EPA has Hazardous Waste Management FOR FURTHER INFORMATION CONTACT: taken the necessary steps to eliminate Program Revisions drafting errors and ambiguity, minimize Alima Patterson (214) 665–8533. potential litigation, and provide a clear AGENCY: Environmental Protection SUPPLEMENTARY INFORMATION: legal standard for affected conduct, as Agency (EPA) A. Why Are Revisions to State required by section 3 of Executive Order ACTION: Immediate final rule. Programs Necessary? 12988, entitled Civil Justice Reform (61 FR 4729, February 7, 1996). SUMMARY: The State of Oklahoma has States that receive final authorization applied for Final authorization of the from EPA under RCRA section 3006(b), V. Congressional Review Act changes to its Hazardous Waste Program 42 U.S.C. 6926(b), must maintain a The Congressional Review Act, 5 under the Resource Conservation and hazardous waste program that is U.S.C. 801 et seq., as added by the Small Recovery Act (RCRA). The EPA has equivalent to, consistent with, and no Business Regulatory Enforcement determined that these revisions satisfy less stringent than the Federal Fairness Act of 1996, generally provides all requirements needed to qualify for Hazardous Waste Program. As the that before a rule may take effect, the Final authorization, and is authorizing Federal program changes, States must

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change their programs and ask EPA to Correction March 14, 1997 (12100– 264.1080(g), 265.1(c)(4), 265.149, authorize the changes. Changes to State 12101) effective March 14, 1997; 265.150, 265.1030(c), 265.1010(f), programs may be necessary when September 22, 1998 (63 FR 50528– 265.1080(e), 265.1080(f), and Federal or State statutory or regulatory 50531) effective November 23, 1998; 265.1080(g); 40 CFR part 268 except authority is modified or when certain March 29, 2000 (65 FR 16528–16532) 268.5, 268.6, 268.13, 268.42(b), other changes occur. Most commonly, effective May 30, 2000; May 10, 2000 268.44(a) through (g), and 268.44(m) States must change their programs (65 FR 29981–29985) effective June 9, through (p); 40 CFR part 270 except because of changes to EPA’s regulations 2000; and January 2, 2001 (66 FR 28–33) 271.14(b)(18); 40 CFR part 273; and 40 in 40 Code of Federal Regulations (CFR) effective March 5, 2001. The authorized CFR part 279. parts 124, 260–266, 268, 270, 273, and Oklahoma RCRA program was The ODEQ remains the official agency 279. incorporated by reference into the CFR of the State of Oklahoma, as designated published on December 9, 1998 (67800– by 27A O.S. Supp. 2000 Section 2–7– B. What Is The Effect Of Today’s 67834) effective February 8, 1999 and 105(13) to cooperate with Federal Authorization Decision? August 26, 1999 (46567–46571) effective agencies for purposes of hazardous The effect of this decision is that a October 25, 1999. On October 15, 2001, waste regulation. The OHWMA facility in Oklahoma subject to RCRA Oklahoma submitted a final complete delegates authority to the ODEQ to will have to comply with the authorized program revision application, seeking administer the State hazardous waste State Requirements (Cluster X listed in authorization of its program revision in program, including the statutory and this document) instead of the equivalent accordance with 40 CFR 271.21. regulatory provisions necessary to federal requirements in order to comply Oklahoma statutes provide authority administer the RCRA Cluster X with RCRA. Oklahoma has enforcement for a single State agency, the Oklahoma provisions. The DEQ is the sole State responsibilities under its state Department of Environmental Quality agency responsible for administering the hazardous waste program for violations (ODEQ), to administer the provisions of provisions of the OHWMA. of such program, but EPA retains its the State Hazardous Waste Management At the present, the Oklahoma authority under RCRA sections 3007, Program. These statutes are the Corporation Commission (OCC) 3008, 3013, and 7003, which include, Oklahoma Department of Environmental regulates certain aspects of the oil and among others, authority to: (1) Do Quality Act, 27 O.S. Supplement gas production and transportation inspections, and require monitoring, (Supp.) 2000 §§ 1–1–101 et seq. General industry in Oklahoma, including certain tests, analyses or reports, (2) enforce provisions of the Oklahoma waste generated by pipelines, bulk fuel RCRA requirements and suspend or Environmental Quality Code which may sales terminals and certain tank farms. revoke permits. This action does not affect the Hazardous Waste Program are The ODEQ and the OCC have in place impose additional requirements on the 27A O.S. Supplement (Supp.). 2000 a ODEQ/OCC Jurisdictional Guidance regulated community because the §§ 2–1–101 through 2–3–507; and the Document that reflects the current state regulations for which Oklahoma is being Oklahoma Hazardous Waste of affairs between the two agencies. The authorized by today’s action are already Management Act (OHWMA), 27A O.S. current ODEQ/OCC jurisdictional effective, and are not changed by today’s Supp. 2000 §§ 2–7–101 et seq., Guidance Document was amended and action. specifically § 2–7–104 and 27A O.S. signed on January 27, 1999. Supp. 2000 §§ 2–14–305 allows for C. What Is the History of Oklahoma’s The revisions of the State program to issuance of general permits. No Final Authorization and Its Revisions? include administration of the provisions amendments were made to the above of portions of RCRA Cluster X will not Oklahoma initially received Final statutory authorities during the 2001 require a change in responsibility for Authorization on January 10, 1985, (49 legislative session which will administration of the State hazardous FR 50362–50363) published December substantially affect the State Hazardous waste program. 27, 1984 to implement its base Waste Management Program. hazardous waste management program. The Oklahoma Board adopted RCRA D. What Changes Are We Approving We authorized the following revisions: Cluster X rules on February 23, 2001, as With Today’s Action? Oklahoma received authorization for permanent rules. These permanent rules On October 15, 2001 the State of revisions to its program with became effective on June 11, 2001, to Oklahoma submitted a final complete publication dates: April 17, 1990 (55 FR implement the State hazardous waste program application, seeking 14280–14282), effective June 18, 1990; program, which are codified in OAC authorization of their changes in September 26, 1990 (55 FR 39274) 252:205 et seq. These rules include accordance with 40 CFR 271.21. We effective November 27, 1990; April 2, provisions, found at OAC 252:205–3–1 now make an immediate Final decision, 1991 (56 FR 13411–13413) effective through 252:205–3–6, to incorporate by subject to receipt of written comments June 3, 1991; September 20, 1991 (56 FR reference, in accordance with the that oppose this action, that the State of 47675–47677) effective November 19, Guidelines For State Adoption of Oklahoma’s hazardous waste program 1991; September 29, 1993 (58 FR Federal Regulations By Reference, the revision satisfies all of the requirements 50854–50856) effective November 29, following EPA Hazardous Waste necessary to qualify for Final 1993; October 12, 1993 (52679–52682) Management Regulations as amended authorization. The State of Oklahoma effective December 13, 1993; October 7, through July 1, 2000: The provisions of revisions consist of regulations which 1994 (59 FR 51116–51122) effective Title 40 CFR part 124.31, 124.32 and specifically govern Federal Hazardous December 21, 1994; January 11, 1995 (60 124.33; 40 CFR parts 260–266, with the Waste promulgated from July 1, 1999 to FR 2699–2702) effective April 27, 1995; exception of 40 CFR 260.21, 264.(f), June 30, 2000 (RCRA Cluster X) October 9, 1996 (61 FR 52884–52886) 264.150, 264.301(1), 264.1030(d), Oklahoma requirements are included in effective December 23, 1996; Technical 264.1050(g), 264.1080(e), 264.1080(f), a chart with this document.

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Federal Citation State Analog

1. Delisting Waste, [50 FR 28702] July 15, 1985. (Checklist 17B) ...... 27A O.S. Supp. 2000 § 2–2–104 Added by Laws 1994, effective July 1, 1994, Annotated Oklahoma Statutes 27A. O.S. Supp § 2–2–106 Amended by Laws 1981, effective July 1, 1981; Amended by Laws 1993, Rules 252:205:3–1 through 252:205:3–7 permanent effective date June 11, 2001. 2. Universal Waste Rule: Specific Provisions for Hazardous Waste 27A O.S. Supp. 2000 § 2–2–104 Added by Laws 1994, effective July 1, Lamps, [64 FR 36466–36490] July 6, 1999. (Checklist 181). 1994, Annotated Oklahoma Statutes 27 A. O.S. Supp 2000 § 2–2– 106 Amended by Laws 1981, effective July 1, 1981; Amended by Laws 1993, Rules 252:205:3–1 through 252:205–3–7 permanent ef- fective date June 11, 2001. 3. Hazardous Waste Recycling; Land Disposal Restrictions; Final Rule, 27A O.S. Supp. 2000 § 2–2–104 Added by Laws 1994, effective July 1, Hazardous Waste Air Pollutant Standards for Combustors, Miscella- 1994, Annotated Oklahoma Statutes 27 A. O.S. Supp 2000 § 2–2– neous Units, and Secondary Lead Smelters; Clarification of BIF Re- 106 Amended by Laws 1981, effective July 1, 1981; Amended by quirements; Technical Correction to Fast-track Rule, [64 FR 52828– Laws 1993, Rules 252:205–3–1 through 252:205–3–7 permanent ef- 53077; 64 FR 63209–63213] September 30, 1999; and November fective date June 11, 2001. 19, 1999. (Checklist 182). 4. Land Disposal Restrictions Phase IV: Final Rule Promulgating Treat- 27A O.S. Supp 2000 § 2–2–104 Added by Laws 1994, effective July 1, ment Standards for Metal Wastes and Mineral Processing Wastes; 1994, Annotated Oklahoma Statutes 27 A. O.S. Supp 2000 § 2–2– Mineral Processing Secondary Materials and Bevill Exclusion Issues; 106 amended by Laws 1981, effective July 1, 1981; amended by Treatment Standards for Hazardous Soils, and Exclusion of Recycled Laws 1993, Rules 252:205:3–1 through 252:205–3–7 permanent ef- Wood Preserving Wastewaters, [64 FR 56469–56472] October 20, fective date June 11, 2001. 1999. (Checklist 183). 5. Accumulation Time Under RCRA for Waste Water Treatment 27A O.S. Supp. 2000 § 2–2–104 Added by Laws 1994, effective July 1, Sludges From the Metal Finishing Industry; Final Rule: Vacatur of 1994, Annotated Oklahoma Statutes 27 A. O.S. Supp 2000 § 2–2– Organobromine Production Waste Listings, [65 FR 12378–12398] 106 Amended by Laws 1981, effective July 1, 1981; Amended by March 8, 2000. (Checklist 184). Laws 1993, Rules 252:205:3–1 through 252:205–3–7 permanent ef- fective date June 11, 2001. 6. Organobromine Production Waste; Identification and Listing of Haz- 27A O.S. Supp 2000 § 2–2–104 Added by Laws 1994, effective July 1, ardous Waste; Land Disposal Restrictions; Listing of CERCLA Haz- 1994, Annotated Oklahoma Statutes 27 A. O.S. Supp 2000 § 2–2– ardous Substances, Reportable Quantities; Final Rule, [65 FR 106 Amended by Laws 1981, effective July 1, 1981; Amended by 14472–14475] March 17, 2000. (Checklist 185). Laws 1993, Rules 252:205:3–1 through 252:205–3–7 permanent ef- fective date June 11, 2001. 7. Accumulation Time Under RCRA for Waste Water Treatment 27A O.S. Supp. 2000 § 2–2–104 Added by Laws 1994, effective July 1, Sludges From the Metal Finishing Industry; Final Rule: Petroleum 1994, Annotated Oklahoma Statutes 27 A. O.S. Supp 2000 § 2–2– Refining Process Wastes-Clarification, [64 FR 36365–36367] June 8, 106 Amended by Laws 1981, effective July 1, 1981; Amended by 2000. (Checklist 187). Laws 1993, Rules 252:205:3–1 through 252:205–3–7 permanent ef- fective date June 11, 2001.

E. What Decisions has EPA Made? F. How do the Revised State Rules H. Why was There not a Proposal Rule Differ From the Federal Rules? Before Today’s Notice? We conclude that Oklahoma’s application for program revision meets In this authorization of the State of The EPA did not publish a proposal all of the statutory and regulatory Oklahoma’s program revisions for RCRA before today’s rule because we view this requirements established by RCRA. Cluster X, there are no provisions that as a routine program change and do not Therefore, we grant Oklahoma final are more stringent or broader in scope. expect comments that oppose this authorization to operate its hazardous Broader in scope requirements are not approval because we believe this action waste program with the changes part of the authorized program and EPA is not controversial. We are providing an opportunity for public comment described in the authorization can not enforce them. now. In addition to this rule, in the application. Oklahoma has G. Who Handles Permits After This proposed rules section of today’s responsibility for permitting treatment, Authorization Takes Effect? Federal Register we are publishing a storage, and disposal facilities within its separate document that proposes to borders (except in Indian Country) and The State of Oklahoma will issue authorize the State program changes. for carrying out the aspects of the RCRA permits for all the provisions for which program described in its revised it is authorized and will administer the I. Where do I Send My Comments and program application, subject to the permits it issues. The EPA will continue When are They Due? limitations of Solid Waste Amendments to administer any RCRA hazardous You should send written comments to of 1984 (HSWA). New federal waste permits or portions of permits Alima Patterson, Regional Authorization requirements and prohibitions imposed which we issued prior to the effective Coordinator, Grants and Authorization by Federal regulations that EPA date of this authorization. We will not Section (6PD–G), Multimedia Planning promulgates under the authority of issue any more permits or new portions and Permitting Division, EPA Region 6, HSWA take effect in authorized States of permits for the provision listed in 1445 Ross Avenue, Dallas, Texas 75202– before they are authorized for the that Table in this document after the 2733, (214) 665–8533. Please refer to requirements. Thus, EPA will effective date of this authorization. The Docket Number OK–01–03). We must implement those requirements and EPA will continue to implement and receive your comments by May 9, 2003. prohibitions in Oklahoma, including issue permits for HSWA requirements You may not have an opportunity to issuing permits, until the State is for which Oklahoma is not yet comment again. If you want to comment granted authorization to do so. authorized. on this action, you must do so at this time.

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J. What Happens if EPA Receives (58 FR 51735, October 4, 1993), and to require the use of any particular Comments Opposing This Action? therefore, this action is not subject to voluntary consensus standard in place If EPA receives comments that oppose review by OMB. This rule incorporated of another standard that otherwise this authorization, we will withdraw by reference Oklahoma’s authorized satisfies the requirements of RCRA. this rule by publishing a document in hazardous waste management Thus, the requirements of section 12(d) the Federal Register before the rule regulations, and imposes no additional of the National Technology Transfer and becomes effective. The EPA will base requirements beyond those imposed by Advancement Act of 1995 (15 U.S.C. any further decision on the State law. This final rule does not 272) do not apply. The final rule does authorization of the State program impose an information collection not include environment justice issues burden under the provisions of the changes on the proposal mentioned in that require consideration under Paperwork Reduction Act of 1995 (44 the previous paragraph. We will then Executive Order 12898 (59 FR 7629, address all public comments in a later U.S.C. 3501 et. seq.). Incorporation by reference will not impose any new February 16, 1994). EPA has complied final rule. You may not have another with Executive Order 12630 (53 FR opportunity to comment. If you want to burdens on small entities. Accordingly, I certify that this action will not have a 8859, March 15, 1988) by examining the comment on this authorization, you takings implications of the rule in must do so at this time. significant economic impact on a substantial number of small entities accordance with the ‘‘Attorney K. When Will This Approval Take under the Regulatory Flexibility Act (5 General’s Supplemental Guidelines for Effect? U.S.C. 3501 et. seq.). Because this rule the Evaluation of Risk and Avoidance of Unless EPA receives comments merely incorporates by reference certain Unanticipated Takings’’ issued under opposing this action, this final existing State hazardous waste the executive order. As required by authorization approval will become management program requirements section 3 of Executive Order 12988 (61 effective without further notice on June which EPA already approves under CFR FR 4729, February 7, 1996), in issuing 9, 2003. part 271, and does not impose any this rule, EPA has taken the necessary additional enforceable duty beyond that steps to eliminate drafting errors and L. Where Can I Review The State’s required by State law, it does not ambiguity, minimize potential litigation, Application? contain any unfunded mandate or and provide a clear legal standard for You can review and copy the State of significantly or uniquely affect small affected conduct. Oklahoma’s application from 8:30 a.m. governments, as described in the to 4 p.m. Monday through Friday at the Unfunded Mandates Reform Act of 1995 The Congressional Review Act, 5 following addresses: Oklahoma (Pub. L. 104–4). U.S.C. 3501 et seq.), as added by the Department of Environmental Quality, This action will not have substantial Small Business Regulatory Enforcement 707 North Robinson, Oklahoma City, direct effects on the States, on the Fairness Act of 1996, generally provides Oklahoma 73101–1677, (405) 702–7180 relationship between the national that before a rule may take effect, the and EPA, Region 6, 1445 Ross Avenue, government and the States, or on the agency promulgating the rule must Dallas, Texas 75202–2733, (214) 665– distribution of power and submit a rule report, which includes a 6444. For further information contact responsibilities among the various copy of the rule, to each House of the Alima Patterson, Regional Authorization levels of government, as specified in Congress and to the Comptroller General Coordinator, Grants and Authorization Executive Order 13132 (64 FR 43255, of the United States prior to publication Section (6PD–G), Multimedia Planning August 10, 1999), because it merely in the Federal Register. A major rule and Permitting Division, EPA Region 6, incorporates by reference existing State cannot take effect until 60 days after it 1445 Ross Avenue, Dallas, Texas 75202– hazardous waste management program is published in the Federal Register. 2733, (214) 665–8533. requirements without altering the This action is not a ‘‘major rule’’ as relationship or the distribution of power defined by 5 U.S.C. 804(2). This action M. Does Today’s Action Affect Indian and responsibilities established by will be effective on June 9, 2003. Country In Oklahoma? RCRA. This action also does not have Oklahoma is not authorized to carry Tribal implications within the meaning List of Subjects in 40 CFR Part 271 out its Hazardous Waste Program in of Executive Order 13175 (65 FR 67249, Indian Country within the State. This November 6, 2000). Administrative practice and authority remains with EPA. Therefore, This action also is not subject to procedure, Confidential business this action has no effect on Indian Executive Order 13045 (62 FR 19885M information, Hazardous materials Country. April 23, 1997), because it is not transportation, Hazardous waste, Indian economically significant and it does not lands, Intergovernmental relations, N. What Is Codification? make decisions based on environmental Penalties, Reporting and recordkeeping Codification is the process of placing health or safety risks. This action is not requirements, Water pollution control, the State’s statutes and regulations that subject to Executive Order 13211, Water supply. comprise the State’s authorized ‘‘Action Concerning Regulations That Authority: This document is issued under hazardous waste program into the CFR. Significantly Affect Energy Supply the authority of sections 2002(a), 3006, and The EPA does this by referencing the Distribution or Use‘‘ (66 FR 28344, May 7004(b) of the Solid Waste Disposal Act as authorized State rules in 40 CFR part 22, 2001) because it is not a significant amended, 42 U.S.C. 6912(a), 6926, 6974(b). 272. The EPA reserves the amendment regulatory action under Executive Order of 40 CFR part 272, Subpart LL for this 12866. Dated: March 27, 2003. codification of Oklahoma’s program Under RCRA 3006(b), EPA grants a Lawrence E. Starfield, changes until a later date. State’s application for incorporation by Acting Regional Administrator, Region 6. reference as long as the State meets the [FR Doc. 03–8667 Filed 4–8–03; 8:45 am] Administrative Requirements criteria required by RCRA. It would thus The Office of Management and Budget be inconsistent with applicable law for BILLING CODE 6560–50–M has exempted this action from the EPA, when it reviews a State requirements of Executive Order 12866 incorporation by reference application,

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FEDERAL COMMUNICATIONS Federal Communications Commission. Standard Discovery Requests COMMISSION Marlene H. Dortch, We are asking each interested party to Secretary. (1) submit lists of all of the information 47 CFR Part 76 [FR Doc. 03–8577 Filed 4–8–03; 8:45 am] and documents that (a) it believes it [CS Docket No. 95–178; FCC 99–116] BILLING CODE 6712–01–P should be entitled to obtain as a matter of course in discovery in a SAC case and Definition of Markets for Purposes of (b) it would expect to produce to the the Cable Television Broadcast Signal other party as a matter of course in Carriage Rules DEPARTMENT OF TRANSPORTATION discovery in a SAC case, and then (2) comment on the lists submitted by other AGENCY: Federal Communications Surface Transportation Board parties in this proceeding. After Commission. reviewing the parties’ lists and ACTION: Correcting amendments. 49 CFR Parts 1109, 1111 and 1114 comments, we will decide whether to SUMMARY: This document makes a minor issue a list of standard information and correction to part 76 of the [STB Ex Parte No. 638] documents that the parties to a SAC Commission’s rules pertaining to case would be required to produce. We Procedures to Expedite Resolution of also seek comment on the practical definition of markets which were Rate Challenges to be Considered published in the Federal Register, 64 FR aspects of this proposal, such as the Under the Stand-Alone Cost appropriate timing for such initial 33796, June 24, 1999, regarding cable Methodology television broadcast signals. disclosures. For example, would it be practical to require the complainant’s AGENCY: Surface Transportation Board, DATES: Effective April 9, 2003. initial disclosures to be made DOT. FOR FURTHER INFORMATION CONTACT: contemporaneously with the filing of Kenneth Lewis, Media Bureau (202) ACTION: Final rules and request for the complaint, and to make the 418–2622. comments. defendant’s initial disclosures due at the SUPPLEMENTARY INFORMATION: The Order same time as its answer to the SUMMARY: The Board amends its on Reconsideration and Second Report complaint? regulations to expedite the resolution of and Order, FCC 99–116, adopted May rail rate challenges considered under Additional Discovery 21, 1999; released May 26, 1999, the stand-alone cost (SAC) approved a final rule regarding the A suggestion was made to place a methodology. The revisions institute a change of market definitions from limit on the number of discovery requirement for mandatory, non-binding Arbitron’s areas of dominant influence requests that each party would be post-complaint mediation between the to Nielsen Media Research’s designated allowed to make, absent permission shipper and railroad under Board market areas for must-carry/ from the Board. This is the procedure auspices, and establish expedited retransmission elections. In this that applies to complex commercial processes, using Board staff, for document we make a non-substantive litigation conducted in the federal resolving discovery and evidentiary change to update Nielsen Media courts, in Rule 33(a) of the Federal disputes. The Board also requests Research’s address in the publication of Rules of Civil Procedure (which limits comments on the following discovery- § 76.55(e)(2)(i) of the Commission’s a party to 25 written interrogatories, related issues: developing a list of rules. including all discrete subparts, without standard information that should be leave of court). We seek comment on (1) Need for Correction routinely made available in discovery; the appropriate number of As published, the final regulations limiting the number of discovery interrogatories and document requests contain an old address for Nielsen requests available to the parties; limiting that could be made without our leave, Media Research. the number of years of data for which and why, and (2) whether such a discovery responses would be required, limitation is a necessary and List of Subjects in 47 CFR Part 76 and establishing a cut-off date for appropriate measure to prevent parties Cable television. updating discovery responses; and cost- from requesting data in multiple formats sharing for production of discovery or versions. Commenters should address ■ Accordingly, 47 CFR part 76 is cor- responses. rected by making the following cor- this proposal both as if it were to be recting amendments: DATES: The final rules are effective on adopted alone and as if it were to be May 9, 2003; comments are due on June adopted in conjunction with a list of PART 76—MULTICHANNEL VIDEO 9, 2003, with reply comments due on standard information and documents AND CABLE TELEVISION SERVICE June 19, 2003. that the parties to a SAC case would be ADDRESSES: Send comments (an original required to produce as initial ■ 1. The authority citation for part 76 plus 10 copies) referring to Ex Parte No. disclosures. continues to read as follows: 638 to: Surface Transportation Board, Time Periods Authority: 47 U.S.C. 151, 152, 153, 154, 1925 K Street, NW., Washington, DC 301, 302, 303, 303a, 307, 308, 309, 312, 315, 20423–0001. Suggestions were also made to limit 317, 325, 338, 339, 503, 521, 522, 531, 532, the number of years for which data FOR FURTHER INFORMATION CONTACT: 533, 534, 535, 536, 537, 543, 544, 544a, 545, would need to be produced for a SAC 548, 549, 552, 554, 556, 558, 560, 561, 571, Jamie P. Rennert (202) 565–1566. case, absent permission from the Board, 572, 573. [Federal Information Relay Service and to establish a cut-off date for (FIRS) (Hearing Impaired): (800) 877– discovery after which responses to § 76.35 [Amended] 8339.] discovery requests would not need to be ■ 2. In § 76.55, in paragraph (e)(2)(i), SUPPLEMENTARY INFORMATION: The updated. We seek comment on (1) the ‘‘299 Park Avenue’’ is revised to read Surface Transportation Board requests advantages and disadvantages of ‘‘770 Broadway’’. comments as follows: establishing such limits, (2) whether

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such limits should be standard or Authority: 5 U.S.C. 559; 49 U.S.C. 721, ■ 2. Redesignate the current text in determined on a case-by-case basis at an 10704, and 11701. § 1111.8 as § 1111.8(a), add a new para- initial discovery conference, (3) what graph heading to redesignated paragraph ■ 2. Add new § 1109.4, to read as fol- the appropriate limitations would be, (a), and add new paragraph (b) to read as lows: and for which types of data, and (4) an follows: appropriate cut-off point in the § 1109.4 Mandatory mediation in rate procedural schedule for making cases to be considered under the stand- § 1111.8 Procedural schedule in stand- alone cost cases. additional discovery requests. alone cost methodology. (a) Procedural schedule. *** Costs (a) A shipper seeking rate relief from (b) Conferences with parties. (1) The a railroad or railroads in a case Finally, a suggestion has been made Board will convene a technical involving the stand-alone cost conference of the parties with Board that the parties share the costs of methodology must engage in non- production of data in response to staff prior to the filing of any evidence binding mediation of its dispute with in a stand-alone cost rate case, for the discovery requests, rather than the the railroad upon filing a formal responding party alone shouldering purpose of reaching agreement on the complaint under 49 CFR Part 1111. operating characteristics that are used in what can be substantial costs. We seek (b) Within 10 business days after the comment on (1) our authority to require the variable cost calculations for the shipper files its formal complaint, the movements at issue. The parties should such cost-sharing, (2) the circumstances, Board will assign a mediator to the case. if any, under which parties should be jointly propose a schedule for this Within 5 business days of the technical conference. required to share those costs, (3) how assignment to mediate, the mediator the costs of production would be (2) In addition, the Board may shall contact the parties to discuss convene a conference of the parties with quantified, and (4) how, if at all, the ground rules and the time and location costs should be divided between the Board staff, after discovery requests are of any meeting. At least one principal of served but before any motions to compel parties. each party, who has the authority to Additional information is contained may be filed, to discuss discovery bind that party, shall participate in the matters in stand-alone cost rate cases. in the Board’s decision. To obtain a mediation and be present at any session copy of the full decision, visit the The parties should jointly propose a at which the mediator requests that the schedule for this discovery conference. Board’s Web site at http:// principal be present. www.stb.dot.gov; or call the Board’s (c) The mediator will work with the PART 1114—EVIDENCE; DISCOVERY Information Officer at (202) 565–1674. parties to try to reach a settlement of all To purchase a copy of the decision, or some of their dispute or to narrow the ■ 1. The authority citation for part 1114 write to, call, email, or pick up in issues in dispute, and reach stipulations continues to read as follows: person from Da¯-2-Da¯ Legal Copy that may be incorporated into any Service, Room 405, 1925 K Street, NW., Authority: 5 U.S.C. 559; 49 U.S.C. 721, adjudication before the Board if 10704, and 11701. Washington, DC 20006, (202) 293–7776, mediation does not fully resolve the [email protected]. [Federal ■ 2. Revise § 1114.31(a) to read as fol- dispute. If the parties reach a settlement, Information Relay Service (FIRS) lows: the mediator may assist in preparing a (Hearing Impaired): (800) 877–8339.] This action will not significantly settlement agreement. § 1114.31 Failure to respond to discovery. affect either the quality of the human (d) The entire mediation process shall (a)(1) Reply to motion to compel environment or the conservation of be private and confidential. No party generally. Except in rate cases to be energy resources. may use any concessions made or considered under the stand-alone cost We conclude that our action will not information disclosed to either the methodology, the time for filing a reply have a significant effect on a substantial mediator or the opposing party before to a motion to compel is governed by number of small entities within the the Board or in any other forum without section 1104.13. meaning of the Regulatory Flexibility the consent of the other party. (2) Reply to motion to compel in Act because small entities are not (e) The mediation shall be completed stand-alone cost rate cases. A reply to litigants in the rail rate cases that are the within 60 days of the appointment of a motion to compel must be filed with subject of this proceeding. the mediator. The mediation may be the Board within 10 days thereafter in terminated prior to the end of the 60- a rate case to be considered under the List of Subjects in 49 CFR Parts 1109, day period only with the certification of stand-alone cost methodology. 1111 and 1114 the mediator to the Board. Requests to (3) Conference with parties on motion Practice and procedure, Railroads. extend mediation, or to re-engage it to compel. Within 5 business days after Decided: April 3, 2003. later, will be entertained on a case-by- the filing of a reply to a motion to By the Board, Chairman Nober and case basis, but only if filed by all compel in a rate case to be considered Commissioner Morgan. interested parties. under the stand-alone cost Vernon A. Williams, (f) Absent a specific order from the methodology, Board staff may convene Secretary. Board, the onset of mediation will not a conference with the parties to discuss affect the procedural schedule in stand- the dispute, attempt to narrow the ■ The Surface Transportation Board alone cost rate cases, set forth at 49 CFR issues, and gather any further amends 49 CFR parts 1109, 1111 and 1111.8(a). information needed to render a ruling. 1114 as follows: (4) Ruling on motion to compel in PART 1111—COMPLAINT AND PART 1109—USE OF ALTERNATIVE stand-alone cost rate cases. Within 5 INVESTIGATION PROCEDURES DISPUTE RESOLUTION IN BOARD business days after a conference with the parties convened pursuant to PROCEEDINGS AND THOSE IN WHICH ■ 1. The authority citation for part 1111 THE BOARD IS A PARTY subparagraph (a)(3) of this section, the continues to read as follows: Secretary will issue a summary ruling ■ 1. The authority citation for part 1109 Authority: 5 U.S.C. 559; 49 U.S.C. 721, on the motion to compel discovery in a continues to read as follows: 10704, and 11701. stand-alone cost rate case. If no

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conference is convened, the Secretary SUMMARY: This document corrects a substantive, 5 U.S.C. 553(d) does not will issue this summary ruling within cross reference in the regulatory text of apply. Therefore, this final rule is not 10 business days after the filing of the 50 CFR part 679. The action is necessary subject to a 30–day delay in reply to the motion to compel. Appeals to correct an error in a cross reference effectiveness. of a Secretary’s ruling will proceed at § 679.20(a)(5)(iii)(B). List of Subjects in 50 CFR Part 679 under 49 CFR 1115.9, and the Board DATES: Effective April 8, 2003. will attempt to rule on such appeals FOR FURTHER INFORMATION CONTACT: Alaska, Fisheries, Recordkeeping and within 20 days after the filing of the Patsy A. Bearden, NMFS, 907–586–7228 reporting requirements. reply to the appeal. or e-mail at [email protected]. Dated: April 2, 2003. * * * * * SUPPLEMENTARY INFORMATION: A final John Oliver, [FR Doc. 03–8645 Filed 4–8–03; 8:45 am] rule, which published December 30, Deputy Assistant Administrator for 2002 (67 FR 79692), redesignated BILLING CODE 4915–15–P Operations, National Marine Fisheries § 679.20(a)(5)(ii) as § 679.20(a)(5)(iii). Service. This paragraph redesignation affected a cross reference in existing ■ Accordingly, 50 CFR part 679 is cor- DEPARTMENT OF COMMERCE § 679.20(a)(5)(iii)(B) but the change was rected by making the following cor- not made. This error is corrected by this recting amendments: National Oceanic and Atmospheric action. Administration PART 679—FISHERIES OF THE Need for Corrections EXCLUSIVE ECONOMIC ZONE OFF 50 CFR Part 679 This rule corrects a cross reference in ALASKA § 679.20(a)(5)(iii)(B) by removing the ■ [Docket No. 011128283–3075–03; I. D. reference to ‘‘(a)(5)(ii)(A)’’ and adding in 1. The authority citation for part 679 111401B] its place ‘‘(a)(5)(iii)(A).’’ continues to read as follows: Authority: 16 U.S.C. 773 et seq., 1801 et RIN 0648–AN55 Classification seq.; 3631 et seq.; Title II of Division C, Pub. Pursuant to 5 U.S.C. 553(b)(B), the L. 105–277; Sec 3027, Pub. L. 106–31; 113 Fisheries of the Exclusive Economic Assistant Administrator of Fisheries Stat. 57; 16 U.S.C. 1540(f); and Sec. 209, Pub, Zone Off Alaska; Correction (AA), NOAA, finds good cause to waive L, 106–554. AGENCY: National Marine Fisheries prior notice and an opportunity for § 679.20 [Corrected] Service (NMFS), National Oceanic and public comment. NOAA finds that prior In § 679.20(a)(5)(iii)(B), the cross- Atmospheric Administration (NOAA), notice and comment are unnecessary as reference ‘‘(a)(5)(ii)(A)’’ is corrected to Commerce. this rule makes a minor, non- substantive change to correct a mis- read ‘‘(a)(5)(iii)(A)’’. ACTION: Final rule; Technical citation to another section of the [FR Doc. 03–8684 Filed 4–8–03; 8:45 am] amendment. regulation. Because this action is not BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 68, No. 68

Wednesday, April 9, 2003

This section of the FEDERAL REGISTER rates and Program changes, if any, make PART 870—FEDERAL EMPLOYEES’ contains notices to the public of the proposed periodic premium adjustments GROUP LIFE INSURANCE PROGRAM issuance of rules and regulations. The necessary. OPM needs a simplified 1. The authority citation for part 870 purpose of these notices is to give interested process to ensure that premium income persons an opportunity to participate in the is revised to read as follows: rule making prior to the adoption of the final can pay the future expected benefit Authority: 5 U.S.C. 8716; subpart J also rules. costs in the FEGLI Program. issued under sec. 599C, Pub. L. 101–513, 104 When OPM determines rate changes Stat. 2064, as amended; § 870.302(a)(3)(ii) are needed, we will announce them in also issued under sec. 153, Pub. L. 104–134, OFFICE OF PERSONNEL a public notice in the Federal Register. 110 Stat. 1321; § 870.302(a)(3) also issued MANAGEMENT We also will issue guidance to all under sections 11202(f), 11232(e), and 11246(b) and (c) of Pub. L. 105–33, 111 Stat. 5 CFR Part 870 agencies for the purpose of counseling employees and we will notify affected 251 and section 7(e), Pub. L. 105–274, 112 Stat. 2419. RIN: 3206–AJ46 annuitants directly. We will update the FEGLI Program Booklet when necessary Federal Employees’ Group Life Subpart D—Cost of Insurance to reflect changes and maintain the Insurance Program: Removal of Booklet and premium rates on the 2. In § 870.401, paragraphs (a), (b)(1), Premiums and Age Bands From and (d) are revised to read as follows: Regulations FEGLI Web site www.opm.gov/insure/ life. § 870.401 Withholdings and contributions AGENCY: Office of Personnel Although members of the public will for Basic insurance. Management. no longer have the opportunity to (a)(1) The cost of Basic insurance is ACTION: Proposed rule. comment on changes through the formal shared between the insured individual and the Government. The employee SUMMARY: The Office of Personnel regulatory process, they can continue as pays two thirds of the cost, and the Management (OPM) is issuing proposed always to comment through emails and letters to OPM. Almost all the comments Government pays one-third. regulations to remove the premium rates (2) When OPM makes any adjustment and age bands under the Federal we receive regarding premium and age band changes are in response to these to the Basic life insurance premium, we Employees’ Group Life Insurance will issue a public notice in the Federal (FEGLI) Program from regulation. The types of notification, rather than formal responses to regulations. We will accept Register. information will be maintained on the (b)(1) During each pay period in and reply to comments from members of FEGLI Web site at http://www.opm.gov/ which an insured employee is in pay insure/life. Future rate and age band the public as always. Publishing these status for any part of the period, the changes will be announced in the changes in the Federal Register will employee’s share of the premium must Federal Register. allow OPM to implement them in a be withheld from the employee’s DATES: Submit comments on or before more timely and efficient manner. biweekly pay. The amount withheld June 9, 2003. Regulatory Flexibility Act from the pay of an employee who is ADDRESSES: Send written comments to paid on other than a biweekly basis Abby L. Block, Special Advisor for I certify that this regulation will not must be prorated and adjusted to the Employee and Family Support, Strategic have a significant economic impact on nearest one-tenth of one cent. Human Resources Policy Division, a substantial number of small entities, * * * * * Office of Personnel Management, because the regulation only affects life (d)(1) For an annuitant or Washington, DC 20415–3666; or deliver insurance benefits of Federal employees compensationer who elects to continue to OPM, Room 3425, 1900 E Street NW., and retirees. Basic insurance and chooses the Washington, DC; or FAX to (202) 606– maximum reduction of 75 percent after Executive Order 12866, Regulatory 0633. age 65, under § 870.702(a)(2), the Review FOR FURTHER INFORMATION CONTACT: annuitant’s share of the premium is Karen Leibach, (202) 606–0004. This rule has been reviewed by the withheld monthly and the SUPPLEMENTARY INFORMATION: OPM is Office of Management and Budget in compensationer’s share is withheld removing the premiums and age bands accordance with Executive Order 12866. every four weeks. These withholdings from the regulations to streamline the stop the month after the month in which process used by OPM to adjust premium List of Subjects in 5 CFR Part 870 the annuitant or compensationer rates based on mortality and claims reaches age 65. There are no experiences, and actuarial Administrative practice and withholdings from individuals who determinations. The premiums in the procedure, Government employees, retired or began receiving compensation FEGLI Program represent actuarial Hostages, Iraq, Kuwait, Lebanon, Life before January 1, 1990, and who elected estimates of premium income necessary insurance, Retirement. the 75 percent reduction. For the to pay future expected benefits costs. U.S. Office of Personnel Management. purpose of this paragraph, an individual The rates for all coverage categories are Kay Coles James, who separates from service after specific to the experience of the FEGLI Director. meeting the requirements for an group and are not based on mortality immediate annuity under 5 U.S.C. 8412 rates within the general population. Accordingly, OPM is proposing to (g) is considered to retire on the day Actuarial analysis of changing mortality amend 5 CFR part 870 as follows: before the annuity begins.

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(2) An annuitant or compensationer (2) For Option B, the amount DEPARTMENT OF AGRICULTURE who elects to continue Basic insurance withheld from pay, annuity, or and chooses either the reduction compensation paid on other than a Farm Service Agency election of 50 percent or the no biweekly basis must be prorated and reduction after age 65, under adjusted to the nearest one-tenth of 1 Rural Housing Service § 870.702(a)(3) or § 870.702(a)(4), pays cent. an additional premium for the 50 Rural Business-Cooperative Service (e) If an employee’s annual pay is percent or no reduction election. This additional premium is withheld for each paid during a period shorter than 52 Rural Utilities Service $1,000 of the BIA. At age 65, the Basic work weeks, the employing office must premium will stop, but the annuitant or determine the amount to withhold. To 7 CFR Parts 762, 1941, 1943 and 1951 do this, it converts the biweekly cost to compensationer must continue to pay RIN 0560–AG81 the additional premium for either the 50 an annual cost and prorates it over the percent or the no reduction election. number of installments of pay regularly 2002 Farm Bill Regulations—Loan * * * * * paid during the year. Eligibility Provisions 3. Revise § 870.402 to read as follows: (f) When an agency withholds less AGENCY: than or none of the proper amount of Farm Service Agency, USDA. § 870.402 Withholdings for Optional ACTION: Proposed rule. insurance. Optional life insurance deductions from an individual’s pay, annuity or (a)(1) The insured individual pays the SUMMARY: The Farm Service Agency compensation, the agency must submit full cost of all Optional insurance. There (FSA) proposes to amend the is no Government contribution toward an amount equal to the uncollected regulations for direct and guaranteed the cost of any Optional insurance. deductions required under 5 U.S.C. farm operating loans (OL) to implement (2) Optional insurance premiums are 8714a, 8714b, 8714c to OPM for deposit the provision of the Farm Security and based on 5-year age bands beginning at in the Employees’ Life Insurance Fund. Rural Investment Act of 2002 (2002 Act) age 35. The last age band for Option A 4. In § 870.404, paragraph (d) is relating to loan eligibility for applicants is age 60+. The last age band for Options revised to read as follows: with prior debt forgiveness resulting B and C is 80+. For the purpose of this from a disaster or emergency designated subpart, effective April 24, 1999, an § 870.404 Withholdings and contributions by the President. FSA is proposing that individual is considered to reach the provisions that apply to both Basic and borrowers who are current on an FSA next age band the 1st day of the pay Optional insurance. loan at the onset of a Presidentially- period following the pay period in * * * * * declared disaster or emergency, but who which his/her birthday occurs. (d) The deposit described in receive debt forgiveness on that loan (3) When OPM makes any adjustment §§ 870.401(f) and 870.402(f) must be following the disaster, would be eligible to the Optional life insurance made no later than 60 calendar days for OL loan assistance if all other premiums, we will issue a public notice regulatory requirements were met. FSA after the date the employing office in the Federal Register. is also proposing to amend the determines the amount of the (b) During each pay period in any part regulations for direct farm ownership underdeduction that has occurred, of which an insured employee is in pay (FO) loans to comply with the 2002 Act. status, the employing agency must regardless of whether or when the FSA is proposing that applicants may withhold the full cost of Optional underdeduction is recovered by the qualify for a loan if they participated in insurance from his/her pay. agency. The agency must determine the business operations of a farm or (c)(1) Subject to the provisions for whether to waive collection of the ranch for at least three of the past five reemployed annuitants in § 870.707, the overpayment of pay, in accordance with years, rather than having operated a full cost of Optional insurance must be 5 U.S.C. 5584, as implemented by 4 CFR farm or ranch for that length of time. withheld from the annuity of an chapter I, subchapter G. However, if the This portion of the rule is intended to annuitant and the compensation of a agency involved is excluded from the make more borrowers eligible for FSA compensationer. provisions of 5 U.S.C. 5584, it may use farm loan assistance. Finally, FSA is (2) The withholdings for Option A any applicable authority to waive the proposing to amend regulations stop the month after the month in which collection. concerning reamortization of amortized an annuitant or compensationer reaches * * * * * Shared Appreciation Agreement (SAA) age 65. recapture debt. (3) For an annuitant or 5. In § 870.801, paragraph (e) is DATES: Comments on the rule must be compensationer who elects Full revised to read as follows: received on or before June 9, 2003, to be Reduction for any Option B or Option assured of consideration. C multiples, the withholdings for those § 870.801 Order of precedence and payment of benefits. multiples stop the month after the ADDRESSES: Submit written comments month in which he/she reaches age 65. * * * * * to the Director, Loan Making Division, Farm Loan Programs, Farm Service (4) For an annuitant or (e) Upon the death of an insured Agency, United States Department of compensationer who elects No family member, Option C benefits are Agriculture, STOP 0522, 1400 Reduction for any Option B or Option paid to the employee, annuitant or Independence Avenue, SW., C multiples, the withholdings for those compensationer responsible for Washington, DC 20250–0522. multiples continue, as long as he/she withholdings under § 870.402(a), except FOR FURTHER INFORMATION CONTACT: remains insured. as provided in paragraph (f) of this (d)(1) For Option A and Option C, the section. Kathy Zeidler, Senior Loan Officer, amount withheld from pay, annuity, or USDA, FSA, Farm Loan Programs, Loan compensation paid on other than a * * * * * Making Division, STOP 0522, 1400 biweekly basis must be prorated and [FR Doc. 03–8610 Filed 4–8–03; 8:45 am] Independence Avenue, SW., adjusted to the nearest cent. BILLING CODE 6325–50–P Washington, DC 20250–0522; telephone

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(202) 720–5199; or e-mail Environmental Assessment through the USDA eForms Web site at _ http://www.sc.egov.usda.gov. kathy [email protected]. Comments The environmental impacts of this on the rule may be inspected by rule have been considered in Background contacting Ms. Zeidler for arrangements accordance with the provisions of the Section 5319 of the 2002 Act provides during normal business hours. Persons National Environmental Policy Act of with disabilities who require alternative another exception to the general rule 1969 (NEPA), 42 U.S.C. 4321 et seq., the prohibiting farm loans to borrowers who means for communication (Braille, large regulations of the Council on print, audio tape, etc.) should contact have received prior debt forgiveness. Environmental Quality (40 CFR parts Under this provision, FSA farm loan the USDA Target Center at (202) 720– 1500–1508), and the FSA regulations for 2600 (voice and TDD). borrowers who received debt compliance with NEPA, 7 CFR parts forgiveness on not more than one Notice and Comment 799, and 1940, subpart G. FSA has occasion resulting directly and completed an environmental evaluation primarily from a major disaster or This rule is issued as a proposed rule. and concluded that the rule requires no Upon completion of the public emergency designated by the President further environmental review. No on or after April 4, 1996, under the comment period and consideration of extraordinary circumstances or other the comments received, FSA will issue Robert T. Stafford Disaster Relief and unforeseeable factors exist which would Emergency Assistance Act (42 U.S.C. a final rule addressing the comments, require preparation of an environmental announcing the final determination, and 5121 et seq.), may be eligible for direct assessment or environmental impact or guaranteed farm operating loans to making the provisions effective. statement. A copy of the environmental pay annual farm or ranch operating Executive Order 12866 evaluation is available for inspection expenses. Note that while FSA makes and review upon request. emergency loans also when emergencies This rule has been determined to be Executive Order 12372 are designated by the USDA Secretary or not significant under Executive Order FSA Administrator (physical loss loans 12866 and, therefore, has not been This rule is not subject to the only), only Presidentially-designated reviewed by the Office of Management provisions of Executive Order 12372, emergencies trigger this exception. In and Budget (OMB). which requires intergovernmental developing the proposed rule, FSA Federal Assistance Programs consultation with State and local reasoned that if a borrower is operating officials. See the notice related to 7 CFR in an area where a disaster or emergency The title and number of the Federal part 3015 subpart V published at 48 FR is designated by the President, and the assistance programs, as found in the 29115 (June 24, 1983). borrower is current on their FSA loan Catalog of Federal Domestic Assistance, Executive Order 13132 obligations prior to the designation, any to which the rule applies are: subsequent debt forgiveness can be 10.406—Farm Operating Loans. The policies contained in this rule do ‘‘directly and primarily’’ attributed to not have any substantial direct effect on 10.407—Farm Ownership Loans. the major disaster or emergency. States, on the relationship between the Therefore, the Agency is proposing that Regulatory Flexibility Act national government and the States, or borrowers who are current on FSA loans on the distribution of power and at the onset of a Presidentially-declared In compliance with the Regulatory responsibilities among the various disaster or emergency, but receive debt Flexibility Act (5 U.S.C. 601–602), the levels of government. Nor does this rule forgiveness on the loans within three undersigned has determined and impose substantial direct compliance years following the disaster, fall within certified by signature of this document costs on State and local governments. the legislative exception and, therefore, that this rule will not have a significant Therefore, consultation with the States would be eligible for OL loan assistance economic impact on a substantial is not required. for paying annual farm operating number of small entities. New Paperwork Reduction Act expenses if all other loan requirements provisions included in this rule will not were met. The Agency specifically seeks impact a substantial number of small The Agency’s information collection comments on this issue. entities to a greater extent than large requirements, currently approved under Section 5001 of the 2002 Act revised entities. Therefore, a regulatory OMB control numbers 0560–0155, an eligibility requirement for FSA’s flexibility analysis was not performed. 0560–0157, and 0560–0167 are not direct FO loan program. Applicants may Unfunded Mandates affected by the proposed rule. now be eligible for this program if they participated in the business operations Government Paperwork Elimination This rule contains no Federal of a farm or ranch for at least three Act mandates under Title II of the Unfunded years, rather than having operated a Mandates Reform Act of 1995 (UMRA) FSA is committed to compliance with farm or ranch for that length of time. for State, local, and tribal governments the Government Paperwork Elimination FSA has in place a policy in its direct or the private sector. Therefore, this rule Act and the Freedom to E-File Act, OL program defining farm participation is not subject to the requirements of which require Government agencies in with regard to acceptable farm sections 202 and 205 of UMRA. general and FSA in particular to provide experience and on-the-job training. Executive Order 12988 the option of submitting information or Because this policy was already in transacting business electronically to effect, it was expanded to cover the new This rule has been reviewed in the maximum extent possible. The participation requirement for direct FO accordance with Executive Order 12988. forms and other information collection loans through administrative notice. This rule preempts State laws that are activities required for participation in The policy notice issued to field offices inconsistent with it. This rule is not the program are not yet fully clarified the participation requirement retroactive. Before judicial action may implemented for the public to conduct by stating that applicants who: (1) be brought concerning this rule, business with FSA electronically. Owned, managed, or operated a farm or administrative remedies must be However, loan application forms are ranch business for at least three years exhausted. available electronically for downloading worth of complete production and

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marketing cycles; (2) have been Accordingly, 7 CFR is revised as years after the onset of such emergency employed as a farm manager or farm follows: meet this exception. management consultant for at least three * * * * * years worth of complete production and PART 762—GUARANTEED FARM marketing cycles; or (3) participated in LOANS PART 1941—OPERATING LOANS the operation of a farm or ranch by 1. The authority citation for part 762 being raised or working on a farm or 4. The authority citation for part 1941 continues to read as follows: ranch and having had significant continues to read as follows: responsibility for the day-to-day Authority: 5 U.S.C. 301, 7 U.S.C. 1989. Authority: 5 U.S.C. 301; 7 U.S.C. 1989. decision-making for at least three years’ 2. Amend § 762.102(b) by adding a worth of complete production and Subpart A—Operating Loan Policies, definition of ‘‘Presidentially-designated Procedures and Authorizations marketing cycles meet the participation emergency’’ to read as follows: requirement. This rule proposes to 5. Amend § 1941.4 by adding a amend FO regulations accordingly and § 762.102 Abbreviations and definitions. definition of ‘‘Presidentially-designated to limit the three years of participation * * * * * emergency’’ to read as follows: to the five years prior to the date the (b) Definitions. § 1941.4 Definitions. loan application is submitted. Only the * * * * * last five years should be considered Presidentially-designated emergency. * * * * * because this is consistent with OL A major disaster or emergency Presidentially-designated emergency. eligibility requirements, which specify designated by the President under the A major disaster or emergency that applicants must have sufficient Robert T. Stafford Disaster Relief and designated by the President under the applicable educational and/or on-the- Emergency Assistance Act (42 U.S.C. Robert T. Stafford Disaster Relief and job training or farming experience in 5121 et seq.) Emergency Assistance Act (42 U.S.C. managing and operating a farm or ranch 5121 et seq.). (one year’s complete production and 3. Amend § 762.120 by revising paragraph (a) to read as follows: * * * * * marketing cycle within the last five 6. Amend § 1941.12 by revising years). Recent farming experience is a § 762.120 Loan applicant eligibility. paragraphs (a)(8) and (b)(11) to read as better indicator of future success. * * * * * follows: Section 5314 of the 2002 Act (a) Agency loss. (1) Except as provided authorizes FSA to consider § 1941.12 Eligibility requirements. in paragraph (a)(2) of this section, the reamortization of amortized SAA loan applicant, and anyone who will * * * * * recapture debt for up to 25 years from execute the promissory note, has not (a) * * * the date of the original amortization caused the Agency a loss by receiving (8) Agency loss. (i) Except as provided agreement when the borrower becomes debt forgiveness on all or a portion of in paragraph (a)(8)(ii) of this section, the delinquent on this non-program debt. any direct or guaranteed loan made loan applicant, and anyone who will To be eligible for this reamortization, under the authority of the CONACT by execute the promissory note, has not the default must be due to debt write-down or write-off; caused the Agency a loss by receiving circumstances beyond the borrower’s compromise, adjustment, reduction, or debt forgiveness on all or a portion of control, and the borrower must have charge-off under the provisions of any direct or guaranteed loan made acted in good faith in attempting to section 331 of the CONACT; discharge under the authority of the CONACT by repay the recapture amount. As this in bankruptcy; or through payment of a debt write-down or write-off; reamortization can be considered even guaranteed loss claim on: compromise, adjustment, reduction, or when a borrower has no outstanding charge-off under the provisions of (i) More than three occasions on or FLP loans, or when the SAA was section 331 of the CONACT; discharge prior to April 4, 1996; or triggered by all FSA loans being paid in in bankruptcy; or through payment of a full, FSA is proposing to amend 7 CFR (ii) Any occasion after April 4, 1996. guaranteed loss claim. 1951.901, 1951.907, 1951.909, and (2) The applicant may receive a (ii) The applicant may receive a direct 1951.914 to comply with this guaranteed OL to pay annual farm and OL loan to pay annual farm and ranch requirement. ranch operating and family living operating and family living expenses, expenses, provided the applicant meets List of Subjects provided the applicant meets all other all other requirements for the loan, if the requirements for the loan, if the 7 CFR Part 762 applicant and anyone who will execute applicant and anyone who will execute the promissory note: General—Agriculture, Loan the promissory note: programs—Agriculture. (i) Received a write-down under (A) Received a write-down under section 353 of the CONACT; section 353 of the CONACT; 7 CFR Part 1941 (ii) Is current on payments under a (B) Is current on payments under a Crops, Livestock, Loan programs— confirmed bankruptcy plan; or confirmed bankruptcy plan; or Agriculture, Rural areas, Youth. (iii) Received debt forgiveness on not (C) Received debt forgiveness on not more than one occasion after April 4, more than one occasion after April 4, 7 CFR Part 1943 1996, resulting directly and primarily 1996, resulting directly and primarily Crops, Loan programs—Agriculture, from a Presidentially-designated from a Presidentially-designated Recreation, Water resources. emergency for the county in which the emergency for the county in which the applicant operates. Only applicants who applicant operates. Only applicants who 7 CFR Part 1951 were current on all existing direct and were current on all existing direct and Account servicing, Credit, Debt guaranteed FSA loans prior to the onset guaranteed FSA loans prior to the onset restructuring, Loan programs— of a Presidentially-designated of a Presidentially-designated Agriculture, Loan Programs—Housing emergency and received debt emergency and received debt and community development. forgiveness on that debt within three forgiveness on that debt within three

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years after the onset of such emergency complete production and marketing (c) * * * If the borrower submits an meet this exception. cycle as evidenced by tax returns, FSA incomplete application, see paragraph * * * * * farm records or similar documentation; (f) of this section for procedures on (b) * * * (2) Been employed as a farm manager requesting additional information. (11) Agency loss. (i) Except as or farm management consultant for the Delinquent borrowers who have also provided in paragraph (b)(11)(ii) of this year’s complete production and violated their loan agreements with the section, the loan applicant, and anyone marketing cycle; or agency will be handled in accordance who will execute the promissory note, (3) Participated in the operation of a with paragraph (f) of this section. * * * has not caused the Agency a loss by farm by virtue of being raised on a farm * * * * * receiving debt forgiveness on all or a or worked on farm with significant (e) The Agency will notify delinquent portion of any direct or guaranteed loan responsibility for the day-to-day NP borrowers who have only SA made under the authority of the decisions for the year’s complete amortization agreements that all items CONACT by debt write-down or write- production and marketing cycle. in paragraph (f)(5) of this section, with off; compromise, adjustment, reduction, * * * * * the exception of Attachment 2 or 4 of or charge-off under the provisions of 9. Amend § 1943.12 by revising the exhibit A and information for section 331 of the CONACT; discharge introductory text in paragraphs (a)(6) conservation contracts or debt in bankruptcy; or through payment of a and (b)(8) to read as follows: settlement, must be submitted within 60 guaranteed loss claim. days or the account will be accelerated. (ii) The applicant may receive a direct § 1943.12 Farm ownership loan eligibility If a complete application has not been guaranteed OL loan to pay annual farm requirements. submitted within 30 days, one and ranch and operating and family (a) * * * additional notice will be sent to the NP living expenses, provided the applicant (6) Have participated in the business borrower indicating the remaining meets all other requirements for the operations of a farm or ranch for at least information needed and the last day loan, if the applicant and anyone who 3 years out of the 5 years prior to the which it can be submitted. will execute the promissory note, date the application is submitted and * * * * * (A) Received a write-down under satisfy at least one of the following 13. Amend § 1951.909 by adding a section 353 of the CONACT; conditions: new paragraph (c)(6) to read as follows: (B) Is current on payments under a * * * * * confirmed bankruptcy plan; or (b) * * * § 1951.909 Processing primary loan (C) Received debt forgiveness on not (8) Have one or more members, service program requests. more than one occasion after April 4, constituting a majority interest in the * * * * * 1996, resulting directly and primarily business entity, who have participated (c) * * * from a Presidentially-designated in the business operations of a farm or (6) Non-Program borrowers who have emergency for the county in which the ranch for at least 3 years out of the 5 only SA amortization agreements must applicant operates. Only applicants who years prior to the date the application is meet the eligibility requirement in were current on all existing direct and submitted and satisfy at least one of the paragraph (c)(1) of this section, have guaranteed FSA loans prior to the onset following conditions: acted in good faith in attempting to of a Presidentially-designated * * * * * repay the recapture amount, and emergency and received debt develop a feasible plan. Borrowers who forgiveness on that debt within three PART 1951—SERVICING AND do not meet the eligibility or feasibility years after the onset of such emergency COLLECTIONS requirements of this section will be meet this exception. notified of the adverse decision, and the * * * * * 10. The authority citation for part account will be liquidated according to 1951 is revised to read as follows: subpart J of this part. PART 1943—FARM OWNERSHIP, SOIL Authority: 5 U.S.C. 301; 7 U.S.C. 1932 * * * * * AND WATER AND RECREATION Note; 7 U.S.C. 1989; 31 U.S.C. 3716; 42 14. Amend § 1951.914 by revising U.S.C. 1480. 7. The authority citation for part 1943 paragraphs (e), introductory text, and (e)(11) to read as follows: continues to read as follows: Subpart S—Farm Loan Programs Authority: 5 U.S.C. 301, 7 U.S.C. 1989. Account Servicing Policies § 1951.914 Servicing shared appreciation agreements. 11. Amend § 1951.901 by revising the Subpart A—Direct Farm Ownership * * * * * third sentence to read as follows: Loan Policies, Procedures, and (e) Shared appreciation amortization. Authorizations § 1951.901 Purpose. Shared appreciation due under this 8. Amend § 1943.4 by adding a * * * Shared Appreciation amortized section may be amortized to a definition of ‘‘participated in the payments (SA) may be reamortized in nonprogram amortized payment unless business operations of a farm or ranch’’ accordance with §§ 1951.907(e), the amount is due because of to read as follows: 1951.909(c)(6) and 1951.909(e)(2). acceleration or the borrower ceases farming. The amount due may be * * * * * § 1943.4 Definitions. amortized as an SA amortized payment 12. In § 1951.907, revise the second under the following conditions: * * * * * and third sentences of paragraph (c), Participated in the business introductory text, redesignate paragraph * * * * * operations of a farm or ranch. An (e) as (f) and add a new paragraph (e) (11) If a borrower with an SA applicant has participated in the to read as follows: amortized payment also has outstanding business operations of a farm or ranch Farm Loan Program loan(s) and becomes if the applicant has: § 1951.907 Notice of loan service delinquent or financially distressed in (1) Been the owner, manager or programs. accordance with § 1951.906 or if a operator of a farm business for the year’s * * * * * borrower with an SA amortized

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payment has no outstanding Farm Loan Comments and supporting documents evaluation is available for inspection Program loans and becomes delinquent may be viewed by contacting the and review upon request. on the SA amortized payment, the SA information contact listed below. All Executive Order 12988 payment agreement may be reamortized comments, including names and in accordance with § 1951.909. addresses, will become part if the public This rule has been reviewed in * * * * * record. Comments on the paperwork accordance with E.O. 12988, Civil burden of this proposed rule must be Justice Reform. In accordance with that Dated: March 24, 2003. sent to the addresses listed in the Executive Order: (1) All State and local J.B. Penn, Paperwork Reduction Act section of this laws and regulations that are in conflict Under Secretary for Farm and Foreign Rule. with this rule will be preempted; (2) no Agricultural Services. FOR FURTHER INFORMATION CONTACT: Mel retroactive effect will be given to this Dated: April 1, 2003. Thompson, Senior Loan Officer, Farm rule; and (3) administrative proceedings Thomas C. Dorr, Service Agency; telephone: 202–720– in accordance with 7 CFR parts 11 and Under Secretary for Rural Development. 7862; Facsimile: 202–690–1196; e-mail: 780 must be exhausted before requesting [FR Doc. 03–8646 Filed 4–8–03; 8:45 am] [email protected]. judicial review. BILLING CODE 3410–05–P Persons with disabilities who require Executive Order 12372 alternative means for communication (Braille, large print, audio tape, etc.) As stated in the Notice related to 7 DEPARTMENT OF AGRICULTURE should contact the USDA Target Center CFR part 3015, subpart V (48 FR 29115, at (202) 720–2600 (voice and TDD). June 24, 1983) the programs and Farm Service Agency SUPPLEMENTARY INFORMATION: activities within this rule do not require consultation with state and local Rural Housing Service Executive Order 12866 officials under the scope of Executive This rule was determined to be not Order 12372. Rural Business-Cooperative Service significant under Executive Order 12866 Unfunded Mandates Reform Act and was not reviewed by the Office of Rural Utilities Service Management and Budget. This rule contains no Federal mandates as defined in Title II of the 7 CFR Parts 772, 1901, and 1951 Regulatory Flexibility Act Unfunded Mandates Reform Act of 1995 RIN 0560–AG67 The Agency certifies that this rule (UMRA). Thus, this rule is not subject will not have a significant economic to the requirements of sections 202 and Servicing Minor Program Loans effect on a substantial number of small 205 of UMRA. entities, because it does not require any Executive Order 13132 AGENCY: Farm Service Agency, USDA. action by the borrower who may be a ACTION: Proposed rule. small entity. The Agency, therefore, is The policies contained in this rule do not have any substantial direct effect on SUMMARY: This rule proposes to not required to perform a Regulatory Flexibility Analysis as required by the states, on the relationship between the consolidate, clarify and revise the national government and the states, or servicing regulations for the Minor Regulatory Flexibility Act, Pub. L. 96– 534, as amended (5 U.S.C. 601). This on the distribution of power and Programs currently administered by the responsibilities among the various Farm Service Agency, Farm Loan rule does not impact small entities to a greater extent than large entities. levels of government. Nor does this rule Programs (FSA). Minor Program loans impose any new significant loan involve existing loans only since there Environmental Evaluation servicing criteria on state and local is no longer funding for new loans in The environmental impacts of this governments. The proposed rule revises these programs. FSA Minor Programs proposed rule have been considered in the citation references and consolidates consist of the following loan types: accordance with the provisions of the the servicing regulations to streamline Grazing Association loans and Irrigation National Environmental Policy Act of loan servicing criteria applicable to and Drainage Association loans 1969 (NEPA), 42 U.S.C. 4321 et seq., the Minor Programs. Therefore, consultation previously administered by the U.S. regulations of the Council on with the states is not required. Department of Agriculture’s Rural Environmental Quality (40 CFR parts Development (RD) mission area, and 1500–1508), and the FSA regulations for Paperwork Reduction Act Non-Farm enterprise and Recreation compliance with NEPA, 7 CFR parts The amendments to 7 CFR parts 772, Loans made to individuals which have 799, and 1940, subpart G. FSA 1901, subpart E, and 1951, subparts E previously been administered by FSA. completed an environmental evaluation and F, contained in this rule only delete Recreation loans to associations will and concluded that this proposed rule, requirements and propose no new continue to be serviced by RD. if enacted, requires no further collections nor do they significantly DATES: Comments on the proposed rule environmental review because no new affect the aggregate information must be received on or before June 9, loans are authorized. Servicing existing collection burden of the Agencies. 2003 to be assured of consideration. loans in accordance with previously Certain forms and information ADDRESSES: Mail comments on the published rules containing collection are included and approved in proposed rule to: Veldon Hall, Director, environmental requirements is not a the Information Collection Package for Farm Loan Programs, Loan Servicing major Federal action significantly OMB control number 0560–0158 and and Property Management Division, affecting the quality of the human are not impacted by this collection. Farm Service Agency, USDA, 1400 environment. No extraordinary Still, this rule transfers some of the Independence Avenue, SW. Stop 0523, circumstances or other unforeseeable information collections assigned OMB Washington, DC 20250–0523, or hand factors exist which would require control numbers 0575–0118, 0575–0093, deliver to Suite 500, 1250 Maryland preparation of an environmental and 0575–0066, to the proposed part Avenue, SW., Washington, DC 20024 assessment or environmental impact 772. This will result in certain burden during normal business hours. statement. A copy of the environmental that is currently assigned by OMB to the

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Rural Development Agencies of USDA Federal Assistance Program subparts B and C) previously applied to being shifted to FSA. Consequently, These proposed changes affect no all Minor Program loans and will FSA is requesting comments on the programs listed in the Catalog of Federal continue to apply under this rule. This information collection requirements in Domestic Assistance. proposed rule contains no new this rule that are being moved from requirements, nor does it eliminate any those currently in parts 1901, subpart E Discussion of the Proposed Rule provision currently contained in and 1951, subparts E and F as required This proposed rule consolidates and existing regulations. The intended effect by the Paperwork Burden Reduction clarifies the servicing policies of the of this rule is to transfer and consolidate Act. After publication of this rule in Farm Service Agency’s Minor Loan authorities contained within separate final, the Agency will submit Programs. The Minor Programs were Federal regulations into one part. documents to OMB to modify the administered by the former Farmers List of Subjects currently approved burden to reflect Home Administration (FmHA). Under this shift between control numbers. An the discretionary authority of the Part 772 estimate of the paperwork burden of the Department of Agriculture Agriculture, Credit, Rural areas. regulations as affected by this proposed Reorganization Act of 1994, Pub. L. rule are as follows: 103–354, on October 20, 1994, the Part 1901 Title: 7 CFR part 772, Servicing Minor Individual-type loans (Non-Farm Civil rights, Compliance reviews, Program Loans. Enterprise and Recreation loans) were Minority groups. assigned to FSA. The Association-type OMB Control Number: 0560–NEW. Part 1951 loans (Grazing Associations and Type of request: Approval of new Irrigation and Drainage loans) were Account servicing, Grant programs— information collection. assigned to USDA’s Rural Development housing and community development, Abstract: This part contains FSA mission area. Regulations for servicing Reporting requirements, Rural areas. policies and procedures for servicing the Association-type loans of these Accordingly, for the reasons stated in Minor Program loans which include: programs are currently found at 7 CFR the preamble, 7 CFR part 772 is added Grazing Associations, Irrigation and part 1901, subpart E for Civil Rights and 7 CFR parts 1901 and 1951 are Drainage Associations, Non-Farm Compliance; 7 CFR part 1951, subpart E amended as follows: Enterprise loans and Recreation loans to for servicing; 7 CFR part 1951, subpart 1. Add part 772 to read as follows: individuals. F for graduation; 7 CFR part 1956, Estimate of burden: Public reporting subpart C for debt settlement; and 7 CFR PART 772—SERVICING MINOR burden for this collection of information part 1962 subpart A for bankruptcy. PROGRAM LOANS is estimated to average less than 1 hour Individual-type Minor Program loans Sec. per response. are the Non-Farm enterprise loans 772.1 Policy. Respondents: Individuals and which are a subgroup of FSA, Farm 772.2 Abbreviations and definitions. businesses. Operating and Farm Ownership loans 772.3 Compliance. defined in 7 CFR 1941.4 and 1943.4 and 772.4 Environmental requirements. Estimated number of respondents: Recreation loans, which are defined as 772.5 Security maintenance. 338 Farm Loan Program (FLP) loans under 7 772.6 Subordination of security. Estimated number of responses per CFR 1951.906. Although these loans are 772.7 Leasing Minor Program loan security. respondent: 1 no longer made by FSA, both categories 772.8 Sale or exchange of security property. 772.9 Releases. Estimated total annual burden on are serviced as FLP loans in accordance 772.10 Transfer and assumption—AMP respondents: 179 hours Comments are with 7 CFR part 1951, subpart S. loans. requested regarding (a) whether the Because the current delegation of 772.11 Transfer and assumption—IMP collection of information is necessary these similar loan programs between loans. for the proper performance of the FSA and the agencies of the Rural 772.12 Graduation. functions of the agency, including Development mission area is inefficient, 772.13 Delinquent account servicing. whether the information will have this rule proposes to remove parts of 772.14 Reamortization of AMP loans. practical utility; (b) the accuracy of the regulations that are currently shared by 772.15 Protective advances. agency’s estimates of burden including FSA and the agencies of the Rural 772.16 Liquidation. 772.17 Equal opportunity and non- the validity of the methodology and Development mission area and publish discrimination requirements. assumptions used; (c) ways to enhance a consolidated FSA regulation 772.18 Exception authority. the quality, utility and clarity of the governing these programs. information to be collected; and (d) Consolidating these scattered Authority : 5 U.S.C. 301, 7 U.S.C. 1989, and 25 U.S.C. 490. ways to minimize the burden of the regulations will result in more efficient collection of information on those who and proper administration of the § 772.1 Policy. are to respond, including through the servicing requirements for the Minor (a) Purpose. This part contains the use of appropriate automated, Programs. Information not specific to Agency’s policies and procedures for electronic, mechanical, or other the Minor Programs will be eliminated servicing Minor Program loans which technological collection techniques or and language will be improved for include: Grazing Associations, Irrigation other forms of information technology. readability. Only requirements specific and Drainage Associations, Non-Farm Comments should be sent to Mel to the Minor Programs will be included. Enterprise loans and Recreation loans to Thompson, Loan Servicing and Property The result will be better service to the individuals. Management Division, Farm Service borrowers with these types of loans, (b) Appeals. The regulations at 7 CFR Agency, United States Department of and, at the same time, ease the agency parts 11 and 780 apply to decisions Agriculture, STOP 0523, 1400 officials’ burden in administering these made under this part. Independence Avenue, SW., programs. The regulations for servicing Washington, DC 20250–0523; or e-mail: bankruptcy (7 CFR part 1962, subpart A) § 772.2 Abbreviations and definitions. [email protected]. and debt settlement (7 CFR part 1956, (a) Abbreviations.

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AMP Association-Type Minor Program review of all Minor Program borrowers, subpart secures a Minor Program loan, loan to determine if a borrower has directly, the reporting, approval and release CFR Code of Federal Regulations or through contractual or other provisions in that subpart shall apply. FO Farm Ownership Loan arrangement, subjected any person or (2) For real estate security for AMP FSA Farm Service Agency cause any person to be subjected to loans, contact the Office of General IMP Individual-type Minor Program discrimination on the basis of race, Counsel for advice on the appropriate loan color, or national origin. The borrower servicing including liquidation if OL Operating Loan must allow the review official access to warranted. USDA United States Department of their premises and all records necessary (3) For real estate security for IMP Agriculture to carry out the compliance review as loans, service the account according to (b) Definitions. determined by the review official. title 7, part 1951, subpart S, of chapter Association-type Minor Program (c) Frequency and timing. Compliance XVIII of the Code of Federal loans: Means Minor Program loans to reviews will be conducted no later than Regulations. Grazing Associations and Irrigation and October 31 of every third year until the § 772.6 Subordination of security. Drainage Associations. Minor Program loan is paid in full or Entity: Cooperatives, corporations, otherwise satisfied. (a) Eligibility. The Agency shall grant partnerships, joint operations, trusts, or (d) Violations. If a borrower refuses to a subordination of Minor Program loan limited liability companies. provide information or access to their security when the transaction will Graduation: The requirement premises as requested by a review further the purposes for which the loan contained in loan documents of a Minor official during a compliance review, or was made, and: Program borrower that they pay their is determined by the Agency to be not (1) The loan will still be adequately FSA loan in full with funds received in compliance in accordance with this secured after the subordination or the from a commercial lending source as a section, the Agency will service the loan value of the loan security will be result of improvement in their financial in accordance with the provisions of increased by the amount of advances to condition. § 772.14 of this part. be made under the terms of the Individual-type Minor Program loans: subordination. Means Minor Program Non-Farm § 772.4 Environmental requirements. (2) The borrower can document the Enterprise or Individual Recreation Servicing activities such as transfers, ability to pay all debts including the loans that are serviced under existing assumptions, subordinations, sale or new loan. regulations as program OL and FO exchange of security property, and (3) The action does not change the loans. These loans were made to both leasing of security will be reviewed for nature of the borrower’s activities to the entities and individuals. compliance with title 7, part 1940, extent that they would no longer be Member: Means any individual who subpart G of chapter XVIII of the Code eligible for a Minor Program loan. has an ownership interest in the entity of Regulations and the exhibits to that (4) The subordination is for a specific which has received the Minor Program subpart. amount. loan. (5) The borrower is unable, as Minor Program: Non-Farm Enterprise, § 772.5 Security maintenance. determined by the Agency, to refinance Individual Recreation, Grazing (a) General. Borrowers are responsible its loan and graduate in accordance with Association, or Irrigation and Drainage for maintaining the collateral that is this subpart. loan programs administered or to be serving as security for their Minor (6) The loan funds will not be used in administered by FSA that are subject to Program loan in accordance with their such a way that will contribute to prescribed program loan servicing lien instruments, security agreement erosion of highly erodible land or requirements, and, of which, each and promissory note. conversion of wetlands for the program has fewer than 500 outstanding (b) Security Inspection. The Agency production of an agricultural loans and less than $100 million in will inspect real estate that is security commodity according to title 7, part outstanding debt. for a Minor Program loan at least once 1940, subpart G of chapter XVIII of the Review official. An agency employee, every three years, and chattel security at Code of Federal Regulations. contractor or designee who is least annually. More frequent security (7) The borrower has not been authorized to conduct a compliance inspections may be made as determined convicted of planting, cultivating, review of a Minor Program borrower. necessary by the Agency. Borrowers will growing, producing, harvesting or allow representatives of the Agency, or storing a controlled substance under § 772.3 Compliance. any agency of the U.S. Government, in Federal or state law. ‘‘Borrower’’, for (a) Requirements. No Minor Program accordance with statutes and purposes of this subparagraph, borrower shall directly, or through regulations, such access to the security specifically includes an individual or contractual or other arrangement, property as the agency determines is entity borrower and any member, subject any person or cause any person necessary to document compliance with stockholder, partner, or joint operator, to be subjected to discrimination on the the requirements of this section. of an entity borrower. ‘‘Controlled basis of race, color, national origin, or (c) Violations. If the Agency substance’’, for the purpose of this disability. Borrowers must comply with determines that the borrower has failed subparagraph, is defined at 21 CFR part all applicable Federal laws and to adequately maintain security, made 1308. The borrower will be ineligible for regulations regarding equal opportunity unapproved dispositions of security, or a subordination for the crop year in in hiring, procurement, and related otherwise has placed the repayment of which the conviction occurred and the matters. FSA’s civil rights requirements the Minor Program loan in jeopardy, the four succeeding crop years. An applicable to Minor Program borrowers Agency will: applicant must attest on the Agency are contained in title 7, part 15, subpart (1) For chattel security, service the application form that it and its A and part 15b. account according to title 7, part 1962, members, if an entity, have not been (b) Reviews. In accordance with Title subpart A of chapter XVIII of the Code convicted of such a crime. VI of the Civil Rights Act of 1964, the of Federal Regulations. If any normal (b) Application. To request a Agency will conduct a compliance income security as defined in that subordination, a Minor Program

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borrower must make the request in § 772.8 Sale or exchange of security (b) Borrower liability. The Agency writing and provide the following: property. may release a borrower from liability (1) The specific amount of debt for (a) AMP loans. (1) Sale of all or a when the Minor Program loan, plus all which a subordination is needed; portion of security property for an AMP administrative collection costs and (2) An appraisal in accordance with loan may be approved when: charges are paid in full. IMP borrowers § 761.7 of this chapter, if the request is (i) The property is sold for market who have had previous debt forgiveness for more than $10,000, unless an value based on a current appraisal in on a farm loan program loan as defined appraisal report that is sufficient, as accordance with the standards at § 761.7 in 7 CFR 1951.906 cannot be released determined by the Agency, that is less of this chapter; from liability by FSA until the previous (ii) The sale will not prevent carrying than one year old, is on file with the loss to the Agency has been repaid with out the original purpose of the loan. The Agency; and interest from the date of debt borrower must execute RD Form 400–4 forgiveness. (3) Consent and subordination, as ‘‘Assurance Agreement’’ or successor (c) Servicing of debt not satisfied necessary, of all other creditors’ security form. The covenant involved will through liquidation. Balances remaining interests. remain in effect as long as the property after sale or liquidation will be subject (c) Approval. SEDs are authorized to continues to be used for the same or to administrative offset in accordance approve subordination requests. similar purposes for which the loan was with 7 CFR part 1951, subpart C, (1) If a subordination request does not made. The instrument of conveyance including internal agency meet the requirements of this part, the will contain the nondiscrimination administrative offset, Department of SED may reject it and offer appeal covenants contained in 7 CFR 1951.204; Treasury Offset and Treasury Cross- rights, or recommend it to the (iii) The remaining security for the Servicing. Thereafter, the debt Administrator, FSA, pursuant to loan is adequate or will not change after settlement provisions in part 1956, exception authority, for approval. the transaction; subpart B (for IMP loans) and subpart C (2) When the SED rejects a (iv) Sale proceeds remaining after (for AMP loans) of chapter XVIII of the subordination request, the State Office paying any reasonable and necessary Code of Federal Regulations apply. will notify the borrower of the decision. selling expenses are applied to the § 772.10 Transfer and assumption—AMP (3) When recommending to the Minor Program loan according to lien priority; loans. Administrator for an exception, the SED (a) Eligibility. The Agency may must provide documentation on how (2) Exchange of all or a portion of security property for an AMP loan may approve transfers and assumptions of approval of the subordination is in the AMP loans when: best interest of the Government. be approved when: (i) The Agency will obtain a lien on (1) The present borrower is unable or § 772.7 Leasing Minor Program loan the property acquired in the exchange. unwilling to accomplish the objectives security. (ii) Property more suited to the of the loan. (2) The transfer will not harm the (a) Eligibility. The Agency may borrower’s needs related to the purposes Government or adversely affect the consent to the borrower leasing all or a of the loan is to be acquired in the exchange; Agency’s security position. portion of security property for Minor (3) The transferee will continue with Program loans to a third party when: (iii) The AMP loan will be as adequately secured after the transaction the original purpose of the loan. (1) Leasing is the only feasible way to as before; (4) The transferee will assume an continue to operate the enterprise and is (iv) It is necessary to develop or amount at least equal to the present a customary practice; enlarge the facility, improve the market value of the loan security. (2) The lease will not interfere with borrower’s debt-paying ability, place the (5) The transferee documents the the purpose for which the loan was operation on a more sound financial ability to pay the AMP loan debt as made; basis or otherwise further the loan provided in the assumption agreement (3) The borrower retains ultimate objectives and purposes, as determined and has the legal capacity to enter into responsibility for the operation, by the Agency. the contract. maintenance and management of the (b) IMP loans. (1) A sale or exchange (6) If there is a lien or judgment facility or service for its continued of chattel that is serving as security for against the Agency security being availability and use at reasonable rates an IMP loan is governed by title 7, part transferred, the transferee is subject to and terms; 1962, subpart A of chapter XVIII of the such claims. The transferee must (4) The lease prohibits amendments to Code of Federal Regulations. document the ability to repay the claims the lease or subleasing arrangements (2) A sale or exchange of real estate against the land. without prior written approval from the that is serving as security for an IMP (7) If the transfer is to one or more Agency; loan is governed by title 7, part 1965, members of the borrower’s organization and there is no new member, there must (5) The lease terms provide that the subpart A of chapter XVIII of the Code of Federal Regulations. not be a loss to the Government. Agency is a lien holder on the subject (b) Withdrawal. Withdrawal of a property and, as such, the lease is § 772.9 Releases. member and transfer of the withdrawing subordinate to the rights and claims of (a) Security. Minor Program liens may member’s interest in the Association to the Agency as lien holder; and be released when: a new eligible member may be approved (6) The lease is for less than three (1) The debt is paid in full. by the Agency if all of the following years and does not constitute a lease/ (2) Security property is sold for conditions are met: purchase arrangement, unless the market value and sale proceeds are (1) The entire unpaid balance of the transfer and assumption provisions of received and applied to the borrower’s withdrawing member’s share of the this subpart are met. creditors according to lien priority, or AMP loan must be assumed; (b) Application. The borrower must (3) An exchange in accordance with (2) In accordance with the submit a written request for Agency § 772.7(b) of this subpart has been Association’s governing articles, the consent to lease the property. concluded. required number of remaining members

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must agree to accept any new member; reviewed, each borrower must submit, days, the Agency will take action to and at a minimum, a year-end balance sheet protect the Government’s interest. (3) The transfer will not adversely and cash flow projection for the current (3) Third contact. If within 30 days affect collection of the AMP loan. year. the borrower has not responded to the (c) Requesting a transfer and (2) All IMP borrowers classified as second contact delinquency letter or the assumption. The transferor borrower ‘‘commercial’’ or ‘‘standard’’ in borrower will not or cannot make and transferee applicant must submit: accordance with title 7, part 1951, satisfactory arrangements to bring the (1) The written consent of any other subpart F of chapter XVIII of the Code account current, the borrower will be lien holder, if applicable. of Federal Regulations shall be reviewed notified by letter of the option of selling (2) A current balance sheet and cash at least every two years. In the year to their security property to recover any flow statement. be reviewed, each borrower must submit equity, and advising that further (d) Terms. The interest rate and term a year-end balance sheet, actual collection action, including internal of the assumed AMP loan will not be financial performance for the most agency offset and referral to the changed. Any delinquent principal and recent year, and a projected budget for Department of Treasury Offset Program interest of the AMP loan must be paid the current year. and Treasury Cross-Servicing, will be current before the transfer of an (c) Criteria. Borrowers will be taken if payment is not received or assumption will be approved by the requested to graduate from the Minor satisfactory arrangements are not made Agency. Programs as follows: to bring the account current within 15 (e) Release of liability. Transferors (1) Borrowers with IMP loans that are days. may be released from liability with classified as ‘‘commercial’’ or (4) Liquidation. If the borrower does respect to an AMP loan by the Agency ‘‘standard’’ will be requested to apply not make arrangements to cure the when: for private financing within 30 days default and is not eligible for (1) The full amount of the loan is from the date the borrower is notified of reamortization in accordance with assumed. lender interest, if an application is § 772.14 of this subpart, liquidation (2) Less than the full amount of the required by the lender. For good cause, action will be taken according to debt is assumed, and the balance the Agency may grant the borrower a § 772.16 of this subpart. remaining will be serviced in reasonable amount of additional time to (b) IMP loans. Delinquent IMP accordance with § 772.9(c) of this apply for refinancing. borrowers will be serviced according to subpart. (2) Borrowers with AMP loans will be part 1951, subpart S, of chapter XVIII of the Code of Federal Regulations and § 772.11 Transfer and assumption—IMP considered for graduation at least every loans. two years or as otherwise determined by title 7 parts 3 and 1951, subpart C of chapter XVIII of the Code of Federal Transfers and assumptions for IMP the Agency that the borrower’s financial condition has significantly improved. Regulations, concerning internal agency loans are processed in accordance with offset and referral to the Department of title 7, part 1962, subpart A of chapter (d) Enforcement. The Agency shall take action to enforce graduation, when Treasury Offset Program and Treasury XVIII of the Code of Federal Regulations Cross-Servicing. for chattel secured loans and part 1965, the Agency has evidence that subpart A of chapter XVIII of the Code commercial credit can be obtained at § 772.14 Reamortization of AMP loans. of Federal Regulations for real estate reasonable rates and terms. (a) The Agency may approve secured loans. Any remaining transferor (1) The Agency will accelerate the reamortization of AMP loans when there liability will be serviced in accordance loan of a Minor Program borrower who is no extension of the final maturity date with § 772.9(c) of this subpart. fails to provide requested documents, of the loan and no intervening lien does not take positive steps to refinance § 772.12 Graduation. exists on the security for the loan which the loan when commercial credit can be would jeopardize the Government’s (a) General. Agency loan programs do obtained at reasonable rates and terms, security position, and when: not supplant or compete with credit or refuses to cooperate in any way with (1)(i) The account is delinquent and available to borrowers from non- the requirements of this section. cannot be brought current within one Governmental credit sources. Agency (2) The Agency must inform the year; and credit is intended to be available for a borrower in writing of the specific (ii) The borrower has presented a cash temporary period of time until the request of which the borrower failed or flow budget which demonstrates the borrower has made sufficient progress to refused to cooperate and provide appeal ability to meet the proposed new obtain credit from commercial lenders. rights in accordance with 7 CFR part payment schedule; or This section does not apply to Minor 780 and 7 CFR part 11. (2) The account is current, but due to Program borrowers with promissory § 772.13 Delinquent account servicing. circumstances beyond the borrower’s notes which do not contain provisions control, the borrower will be unable to requiring graduation. (a) AMP loans. The Agency will take meet the annual loan payments; (b) Graduation reviews. Borrowers the following actions on delinquent (b) An exception may be provided by shall provide current financial AMP borrowers: and at the discretion of the Agency information when requested by the (1) First contact. The Agency will Administrator to the conditions in Agency or its representatives to conduct attempt to contact the borrower 10 days paragraph (a) of this section in graduation reviews. After screening out after the payment due date, advise the accordance with § 772.18. the non-commercial and non-standard borrower of the amount past due, and borrowers, the Agency will conduct a request that the payment be remitted § 772.15 Protective advances. thorough review of the financial immediately. (a) The Agency may approve, without information provided by the borrower (2) Second contact. If within 20 days regard to any loan or total indebtedness and request additional information as the borrower has not responded to the limitation, vouchers to pay costs, needed. initial contact, a delinquency letter will including insurance and real estate (1) AMP loans shall be reviewed at be sent notifying the borrower that if the taxes, to preserve and protect the least every two years. In the year to be account is not brought current within 30 security, the lien, or the priority of the

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lien securing the debt owed to the PART 1951—SERVICING AND the Committee to coordinate the timing Agency if the debt instrument provides COLLECTIONS of marketing promotion activities with that the Agency may voucher the the short harvest and marketing season account to protect its lien or security. Subpart E—Servicing of Community for Walla Walla sweet onions. The (b) The Agency may pay protective and Direct Business Programs Loans recommended change is expected to advances only when it determines it to and Grants help the Committee better coordinate its be in the Government’s best financial marketing promotion activities with the 4. The authority citation for part 1951 interest. marketing season—mid-June into continues to read as follows: (c) Protective advances are September. immediately due and payable. Authority: 5 U.S.C. 301; 7 U.S.C. 1932 note; 7 U.S.C.1989; 42 U.S.C. 1480. DATES: Comments must be received by § 772.16 Liquidation. June 9, 2003. 5. Amend § 1951.201 by removing the When the Agency determines that ADDRESSES: Interested persons are words ‘‘loans for Grazing and other invited to submit written comments continued servicing will not accomplish shift-in-land-use projects;’’ and the objectives of the loan and the concerning this rule. Comments must be ‘‘Association Irrigation and Drainage sent to the Docket Clerk, Marketing delinquency or financial stress cannot loans;’’. be cured by the options in § 772.13, the Order Administration Branch, Fruit and borrower will be encouraged to dispose § 1951.221 [Amended] Vegetable Programs, AMS, USDA, 1400 of the Agency security voluntarily 6. Amend § 1951.221 in paragraph (b) Independence Avenue SW., STOP 0237, through sale or transfer and assumption. heading by removing the words Washington, DC 20250–0237; Fax: (202) If a transfer or voluntary sale is not ‘‘Grazing Association Loans, Irrigation 720–8938; or E-mail: carried out, the loan will be liquidated and Drainage and other’’. [email protected]. Comments according to title 7, part 1955, subpart should reference the docket number and Signed in Washington, DC, on April 2, the date and page number of this issue A of chapter XVIII of the Code of 2003. Federal Regulations. of the Federal Register and will be J.B. Penn, available for public inspection in the § 772.17 Equal opportunity and non- Under Secretary for Farm and Foreign Office of the Docket Clerk during regular discrimination requirements. Agricultural Services. business hours, or can be viewed at: With respect to any aspect of a credit [FR Doc. 03–8597 Filed 4–8–03; 8:45 am] http://www.ams.usda.gov/fv/moab.html. transaction, the Agency will comply BILLING CODE 3410–05–U FOR FURTHER INFORMATION CONTACT: with the requirements of the Equal Robert J. Curry, Northwest Marketing Credit Opportunity Act as implemented Field Office, Marketing Order in § 1910.2 of title 7, part 1910, subpart DEPARTMENT OF AGRICULTURE Administration Branch, Fruit and A of chapter XVIII of the Code of Agricultural Marketing Service Vegetable Programs, AMS, USDA, 1220 Federal Regulations, and the SW Third Avenue, suite 385, Portland, Department’s civil rights policy in 7 7 CFR Part 956 Oregon 97204–2807; telephone: (503) CFR part 15d. 326–2724, Fax: (503) 326–2724; or [Docket No. FV03–956–1 PR] George Kelhart, Technical Advisor, § 772.18 Exception authority. Marketing Order Administration Exceptions to any requirement in this Sweet Onions Grown in the Walla Branch, Fruit and Vegetable Programs, subpart can be approved in individual Walla Valley of Southeast Washington AMS, USDA, 1400 Independence cases by the Administrator if and Northeast Oregon; Fiscal Period Avenue SW., STOP 0237, Washington, application of any requirement or Change DC 20250–0237; telephone: (202) 720– failure to take action would adversely AGENCY: 2491, Fax: (202) 720–8938. affect the Government’s interest. Any Agricultural Marketing Service, USDA. Small business may request exception must be consistent with the information on complying with this ACTION: Proposed rule. authorizing statute and other applicable regulation by contacting Jay Guerber, laws. SUMMARY: This rule invites comments Marketing Order Administration on a proposed change in the fiscal Branch, Fruit and Vegetable Programs, PART 1901—PROGRAM-RELATED AMS, USDA, 1400 Independence INSTRUCTIONS period under the Walla Walla sweet onion marketing order from June 1 Avenue SW., STOP 0237, Washington, Subpart E—Civil Rights Compliance through May 31 to January 1 through DC 20250–0237; telephone: (202) 720– Requirements. December 31. This rule was 2491, Fax: (202) 720–8938, or E-mail: recommended by the Walla Walla Sweet [email protected]. 2. The authority citation for part 1901 Onion Marketing Committee SUPPLEMENTARY INFORMATION: This rule is revised to read as follows: (Committee), the agency responsible for is issued under Marketing Agreement Authority : 5 U.S.C. 301; 7 U.S.C. 1989; 40 local administration of the marketing and Order No. 956 (7 CFR part 956) U.S.C. 442; 42 U.S.C. 1480. order regulating the handling of sweet regulating the handling of Walla Walla 3. Amend § 1901.204 by: onions grown in the Walla Walla Valley sweet onions grown in Southeast a. Removing paragraphs (a)(1), (2), (4), of Southeast Washington and Northeast Washington and Northeast Oregon, and (10); Oregon. The current fiscal period has hereinafter referred to as the ‘‘order.’’ b. Redesignating paragraph (a)(3) as been in place since the marketing The order is effective under the paragraph (a)(1); order’s inception in 1995. Because of Agricultural Marketing Agreement Act c. Redesignating paragraphs (a)(5) advance planning needed for market of 1937, as amended (7 U.S.C. 601–674), through (9) as paragraphs (a)(2) through promotion, including paid advertising, hereinafter referred to as the ‘‘Act.’’ (6); and the Committee now develops its budget The Department of Agriculture d. Redesignating paragraphs (a)(11) of expenditures before June 1, but (USDA) is issuing this rule in through (28) as paragraphs (a)(7) delays actual expenditures until that conformance with Executive Order through (24). date. This has made it more difficult for 12866.

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This rule has been reviewed under organization responsible for drafting the words ‘‘of each fiscal period’’ wherever Executive Order 12988, Civil Justice order and presenting it during the they appear. Reform. This rule is not intended to promulgation hearing—was of the Regulatory Flexibility Analysis have retroactive effect. This rule would opinion that the new order’s fiscal not preempt any State or local laws, period should begin shortly before the Pursuant to requirements set forth in regulations, or policies, unless they marketing season began. Testimony the Regulatory Flexibility Act (RFA), the present an irreconcilable conflict with during the hearing supported the Agricultural Marketing Service (AMS) this rule. position that the start of the fiscal has considered the economic impact of The Act provides that administrative period should be close to the beginning this action on small entities. proceedings must be exhausted before of the season. This was so a minimum Accordingly, AMS has prepared this parties may file suit in court. Under of expenses would be incurred prior to initial regulatory flexibility analysis. section 608c(15)(A) of the Act, any the time assessment revenue was The purpose of the RFA is to fit handler subject to an order may file received by the Committee following the regulatory actions to the scale of with USDA a petition stating that the sweet onion harvest. business subject to such actions in order order, any provision of the order, or any Experience gained over the last eight that small businesses will not be unduly obligation imposed in connection with years has shown the Committee that the or disproportionately burdened. the order is not in accordance with law June 1 through May 31 fiscal period is Marketing orders issued pursuant to the and request a modification of the order not conducive to coordinating the Act, and the rules issued thereunder, are or to be exempted therefrom. A handler timing of its marketing promotion, unique in that they are brought about is afforded the opportunity for a hearing including paid advertising activities, through group action of essentially on the petition. After the hearing USDA with the short harvest and marketing small entities acting on their own would rule on the petition. The Act season for Walla Walla sweet onions. behalf. Thus, both statutes have small provides that the district court of the The crop is harvested and marketed entity orientation and compatibility. United States in any district in which during a four-month period—mid-June There are approximately 21 handlers the handler is an inhabitant, or has his into September. of Walla Walla sweet onions subject to Because of advance planning needed or her principal place of business, has regulation under the order and for marketing promotion projects, the jurisdiction to review USDA’s ruling on approximately 37 Walla Walla sweet Committee now develops its budget of the petition, provided an action is filed onion producers in the regulated area. expenditures before June 1, but delays not later than 20 days after the date of Small agricultural service firms are actual expenditures until that date. This the entry of the ruling. defined by the Small Business This proposed rule would change the has made it more difficult for the Administration (SBA)(13 CFR 121.201) fiscal period from June 1 through May Committee to coordinate the timing of as those having annual receipts of less 31 to January 1 through December 31. its promotion activities with the short than $5,000,000, and small agricultural This rule would also make conforming harvest and marketing season. The changes to the order’s administrative Committee believes that better timing of producers are defined as those having rules and regulations. This change was marketing promotion activities with the annual receipts of less than $750,000. unanimously recommended by the harvest and marketing of Walla Walla The Committee estimates that in 2002, Committee at its December 17, 2003, sweet onions would improve the 611,955 50-pound units of Walla Walla meeting. distribution and consumption of sweet sweet onions were marketed at an Section 956.40 of the order provides onions. Hence, the Committee average FOB price of about $9.00 per authority for the Committee to incur recommended that the fiscal period unit. Thus the total industry value at expenses that are reasonable and begin January 1 and end December 31 shipping point was about $5,507,595. necessary to operate the program. each year. Thus, a majority of handlers and Section 956.42 provides that these As previously stated, the Committee’s producers of Walla Walla sweet onions expenses be paid by assessments levied current fiscal period is June 1 through may be classified as small entities. on fresh shipments of Walla Walla May 31. The Committee plans on This proposal would change the sweet onions. Further, § 956.41 provides formulating a budget for the twelve- current fiscal period from June 1 that an annual budget of expenses be month period beginning June 1, 2003, through May 31 to January 1 through prepared by the Committee based on the and submitting it to the USDA for December 31. The current fiscal period defined fiscal period. Section 956.13 of approval prior to that date. The has been in place since the marketing the order defines ‘‘fiscal period’’ to Committee could then begin expending order’s inception in 1995. Because of mean the period beginning on June 1 funds in early June for its 2003–2004 advance planning needed for marketing and ending on May 31 of each year, or promotion and research plans, as well promotion projects, including paid such other period as may be as for administration costs. Any final advertising, the Committee now recommended by the Committee and rule issued as a consequence of this develops its budget of expenditures approved by USDA. proposed rule would be made effective before June 1, but delays actual Walla Walla sweet onions are January 1, 2004. Thus, the Committee expenditures until that date. This has traditionally harvested from about mid- would meet after this proposed change made it more difficult for the Committee June through about mid-August, is issued as a final rule, but prior to to coordinate the timing of marketing although in recent years harvest has January 1, 2004, to reformulate and promotion activities with the short been extended into September due to an resubmit a new budget for USDA harvest and marketing season for Walla increase in spring planted onions and approval for the new fiscal period Walla sweet onions—mid-June into the use of better storage facilities. Walla beginning January 1, 2004, and ending September. The Committee believes that Walla sweet onions have a short shelf December 31, 2004. better timing of marketing promotion life and are therefore generally marketed As conforming changes to the and marketing would result with a within a relatively short period of time proposed fiscal period change, this rule January 1 through December 31 fiscal following harvest. During the would also update language in period and improve the distribution and promulgation of the order in 1995, the § 956.142, Interest charges, and consumption of Walla Walla sweet proponent industry committee—the § 956.180, Reports by removing the onions.

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Section 956.13 of the order defines For the reasons set forth in the APHIS to stop the preparation, ‘‘fiscal period’’ and provides the preamble, 7 CFR part 956 is proposed to distribution, sale, barter, exchange, authority by which this recommended be amended as follows: shipment, or importation of any change is being proposed. This rule is worthless, contaminated, dangerous, a change to Committee operations PART 956—SWEET ONIONS GROWN harmful, or unsatisfactory veterinary which would not impose any new IN THE WALLA WALLA VALLEY OF biological product, licensees and requirements or costs on Walla Walla SOUTHEAST WASHINGTON AND permittees would be required to notify sweet onion handlers or producers. It NORTHEAST OREGON wholesalers, dealers, jobbers, or other could, on the other hand, simplify the 1. The authority citation for 7 CFR persons known to have veterinary business operations within the Walla part 956 continues to read as follows: biological products in their possession Walla sweet onion industry by putting to stop the preparation, distribution, the order’s fiscal period on the same Authority: 7 U.S.C. 601–674. sale, barter, exchange, shipment, or basis as that of normal business 2. A new § 956.113 is added to importation of any worthless, recordkeeping practices. subpart ‘‘Rules and Regulations’’ to read contaminated, dangerous, harmful, or The Committee discussed the as follows: unsatisfactory veterinary biological product. In addition, licensees and alternative of leaving the fiscal period as § 956.113 Fiscal period. it presently exists, but unanimously permittees would be required to submit Pursuant to § 956.13, fiscal period concluded that this change, as a complete accounting of the inventory shall mean the period beginning January recommended, would improve program of affected serials or subserials of 1 and ending December 31 of each year. administration. biological products in the current possession of each person involved in This rule would not impose any § 956.142 [Amended] the distribution or sale of the product, additional reporting or recordkeeping 3. Section 956.142 is amended by and provide written documentation requirements on either small or large removing the words ‘‘of each fiscal concerning the required notifications as Walla Walla sweet onion handlers. As period’’ in the second sentence. directed by the Administrator of APHIS. with all Federal marketing order These proposed changes are necessary programs, reports and forms are § 956.180 [Amended] in order to clarify the regulations, periodically reviewed to reduce 4. Section 956.180 is amended by provide for the most expeditious means information requirements and removing the words ‘‘of each fiscal of notification, and to prevent the risk duplication by industry and public period’’ in the introductory text. that any worthless, contaminated, sectors. In addition, USDA has not Dated: April 3, 2003. dangerous, harmful, or unsatisfactory identified any relevant Federal rules A. J. Yates, veterinary biological product may cause that duplicate, overlap or conflict with Administrator, Agricultural Marketing harm to animals, the public health, or to this rule. Service. the environment. The Committee’s meeting was widely [FR Doc. 03–8648 Filed 4–8–03; 8:45 am] DATES: We will consider all comments publicized throughout the Walla Walla BILLING CODE 3410–02–P that we receive on or before June 9, sweet onion industry and all interested 2003. persons were invited to attend the ADDRESSES: meeting and participate in Committee DEPARTMENT OF AGRICULTURE You may submit comments deliberations. Like all Committee by postal mail/commercial delivery or meetings, the December 17, 2002, Animal and Plant Health Inspection by e-mail. If you use postal mail/ meeting was a public meeting and all Service commercial delivery, please send four entities, both large and small, were able copies of your comment (an original and to express their views on this issue. 9 CFR Parts 105 and 115 three copies) to: Docket No. 02–107–1, Regulatory Analysis and Development, Finally, interested persons are invited to [Docket No. 02–107–1] submit information on the regulatory PPD, APHIS, Station 3C71, 4700 River Road Unit 118, Riverdale, MD 20737– and informational impacts of this action Viruses, Serums, Toxins, and 1238. Please state that your comment on small businesses. Analogous Products; Suspension, refers to Docket No. 02–107–1. If you A small business guide on complying Revocation, or Termination of use e-mail, address your comment to with fruit, vegetable, and specialty crop Biological Licenses or Permits; [email protected]. Your marketing agreements and orders may Inspections comment must be contained in the body be viewed at: http://www.ama.usda.gov/ AGENCY: Animal and Plant Health of your message; do not send attached fv/moab.html. Any questions about the Inspection Service, USDA. files. Please include your name and compliance guide should be sent to Jay address in your message and ‘‘Docket Guerber at the previously mentioned ACTION: Proposed rule. No. 02–107–1’’ on the subject line. address in the FOR FURTHER INFORMATION SUMMARY: We are proposing to amend You may read any comments that we CONTACT section. the Virus-Serum-Toxin Act regulations receive on this docket in our reading A 60-day comment period is provided to specify the actions that would have room. The reading room is located in to allow interested persons to respond to be taken by veterinary biologics room 1141 of the USDA South Building, to this proposal. All written comments licensees and permittees upon their 14th Street and Independence Avenue, timely received will be considered receipt of notice from the Animal and SW., Washington, DC. Normal reading before a final determination is made on Plant Health Inspection Service (APHIS) room hours are 8 a.m. to 4:30 p.m., this matter. to stop the preparation, distribution, Monday through Friday, except List of Subjects in 7 CFR Part 956 sale, barter, exchange, shipment, or holidays. To be sure someone is there to importation of any worthless, help you, please call (202) 690–2817 Marketing agreements, Onions, contaminated, dangerous, harmful, or before coming. Reporting and recordkeeping unsatisfactory veterinary biological APHIS documents published in the requirements. product. After receiving notice from Federal Register, and related

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information, including the names of Typically, before the stop distribution wholesalers, jobbers, dealers, and other organizations and individuals who have and sale notifications provided for by persons; and, as directed by the commented on APHIS dockets, are §§ 105.3 and 115.2 can be given, APHIS Administrator, submit records of all available on the Internet at http:// must obtain from the licensees and actions taken to ensure compliance with www.aphis.usda.gov/ppd/rad/ permittees (manufacturers or importers) the stop distribution and sale webrepor.html. the names and addresses of the notification. wholesalers, dealers, jobbers, Executive Order 12866 and Regulatory FOR FURTHER INFORMATION CONTACT: Dr. consignees, or other persons known to Flexibility Act Albert P. Morgan, Chief of Operational have any of the product in their Support, Center for Veterinary possession. Any delay in obtaining the This proposed rule has been reviewed Biologics, Licensing and Policy names and addresses of persons in under Executive Order 12866. The rule Development, VS, APHIS, 4700 River possession of biological products has been determined to be not Road Unit 148, Riverdale, MD 20737– subject to a stop distribution and sale significant for purposes of Executive 1231, (301) 734–8245. action increases the risk that such Order 12866, and, therefore, has not SUPPLEMENTARY INFORMATION: product may cause harm to animals, the been reviewed by the Office of public health, or to the environment. Management and Budget. Background APHIS believes that it is prudent to use APHIS issues stop distribution and Parts 105 and 115 of the Virus-Serum- the most expeditious means available to sale actions if information is received Toxin Act regulations (9 CFR parts 105 notify wholesalers, dealers, jobbers, indicating that a serial or subserial of a and 115, referred to below as the consignees, or other persons concerning licensed veterinary biological product is regulations) provide, respectively, for the stop distribution and sale action. worthless, contaminated, dangerous, the suspension, revocation, or Therefore, this proposed rule would harmful, or unsatisfactory. Such termination of biological licenses or amend §§ 105.3 and 115.2 to specify information may come from inspection permits and for the inspection of actions that veterinary biologics findings, an investigation, an adverse veterinary biologics establishments and licensees and permittees would have to event report, or tests conducted by the veterinary biological products. These take when APHIS issues a stop Center for Veterinary Biologics regulations also contain provisions that distribution and sale notice concerning Laboratory or by the licensee or address the actions to be taken by a veterinary biological product. permittee. Stop distribution and sale veterinary biologics licensees, Specifically, APHIS is proposing to actions may be necessary to prevent risk to the health of animals, to the public permittees, jobbers, wholesalers, amend the regulations to provide that health or well-being, or to the dealers, or other persons known to have APHIS would contact veterinary environment. Currently, the regulations veterinary biologics in their possession, biologics licensees and permittees in §§ 105.3 and 115.2 provide that upon their receipt of notice from the concerning stop distribution and sale APHIS may issue a notice requiring Animal and Plant Health Inspection actions against any worthless, veterinary biologics licensees and Service (APHIS) to stop the preparation, contaminated, dangerous, harmful, or permittees to stop distribution and sale distribution, sale, barter, exchange, unsatisfactory veterinary biological if a product is found to be unsatisfactory shipment, or importation of worthless, product. After being contacted by according to applicable standard contaminated, dangerous, harmful, or APHIS, veterinary biologics licensees or permittees would be required to requirements or if it appears that such unsatisfactory veterinary biological product is worthless, contaminated, product. immediately provide stop distribution and sale notification to wholesalers, dangerous, or harmful. Section 105.3 of the regulations jobbers, dealers, consignees or other APHIS is proposing to amend the provides, in relevant part, that APHIS persons in their respective distribution regulations to provide that APHIS may notify a licensee or permittee to systems known to be in possession of would contact veterinary biologics stop the preparation, sale, barter, such product. APHIS believes that licensees and permittees concerning exchange, shipment, or importation of having licensees or permittees provide stop distribution and sale actions any veterinary biological product if at stop distribution and sale notification to against any worthless, contaminated, any time it appears that such product wholesalers, jobbers, dealers, dangerous, harmful, or unsatisfactory may be dangerous in the treatment of consignees, or other persons in their veterinary biological product. After domestic animals, or found to be respective distribution systems known being contacted by APHIS, veterinary unsatisfactory according to applicable to be in possession of any worthless, biologics licensees or permittees would Standard Requirements. contaminated, dangerous, harmful, or be required to immediately provide stop Similarly, § 115.2 provides, in unsatisfactory veterinary biological distribution and sale notification to relevant part, that if as a result of any product is the most expeditious means wholesalers, jobbers, dealers, inspection it appears that any veterinary of notification. Licensees and permittees consignees, or other persons in their biological product is worthless, have information readily available to respective distribution systems known contaminated, dangerous, or harmful, them concerning the products that have to be in possession of such product. the Secretary will give notice of that been shipped to wholesalers, jobbers, APHIS believes that having licensees or finding to the manufacturer or importer dealers, consignees, or other persons in permittees provide stop distribution and and to any jobbers, wholesalers, dealers their respective distribution systems. sale notification to wholesalers, jobbers, or other persons known to have any of In addition, veterinary biologics dealers, consignees, or other persons in such product in their possession. After licensees and permittees also would be their respective distribution systems receiving such notice, no person may required to document, in writing, all known to be in possession of any sell, barter, or exchange any such communications with wholesalers, worthless, contaminated, dangerous, product in any place under the dealers, jobbers, consignees, or other harmful, or unsatisfactory veterinary jurisdiction of the United States or ship persons concerning the stop distribution biological product is the most or deliver for shipment any such and sale action; obtain a complete expeditious means of notification. product in or from any State, Territory, accounting of the inventory of such Licensees and permittees have or the District of Columbia. product in the possession of such information readily available to them

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concerning which wholesalers, jobbers, APHIS anticipates that the only procedures which must be exhausted dealers, consignees, or other persons in economic effects that would be prior to a judicial challenge to the their respective distribution systems are associated with this proposed rule provisions of this rule. known to be in possession of products. would be related to the costs incurred Paperwork Reduction Act In addition, veterinary biologics by licensees and permittees in licensees and permittees also would be connection with the notification process In accordance with section 3507(d) of required to document, in writing, all itself. This proposed rule does not the Paperwork Reduction Act of 1995 communications with wholesalers, specify the means by which licensees (44 U.S.C. 3501 et seq.), the information dealers, jobbers, consignees, or other and permittees are required to give collection or recordkeeping persons concerning the stop distribution notification, only that the notification be requirements included in this proposed and sale action; obtain a complete made by them immediately upon receipt rule have been submitted for approval to accounting of the inventory of such of the stop distribution and sale the Office of Management and Budget product in the possession of such notification from APHIS. APHIS expects (OMB). Please send written comments wholesalers, jobbers, dealers, and other that most licensees and permittees to the Office of Information and persons; and, as directed by the would use electronic mail or facsimile Regulatory Affairs, OMB, Attention: Administrator, submit records of all to notify wholesalers, jobbers, dealers, Desk Officer for APHIS, Washington, DC actions taken to ensure compliance with consignees, or other persons in their 20503. Please state that your comments the stop distribution and sale respective distribution systems known refer to Docket No. 02–107–1. Please notification. to be in possession of any biological send a copy of your comments to: (1) The effect of this action would be to product for which APHIS has issued a Docket No. 02–107–1, Regulatory clarify the regulations, provide for the stop distribution and sale action. Both Analysis and Development, PPD, most expeditious means of notification, of these methods are inexpensive, so the APHIS, Station 3C71, 4700 River Road and to prevent the risk that any actual transmittal costs associated with Unit 118, Riverdale, MD 20737–1238, worthless, contaminated, dangerous, the proposed notification requirement and (2) Clearance Officer, OCIO, USDA, harmful, or unsatisfactory veterinary would be minimal. room 404–W, 14th Street and biological product may cause harm to Licensees and permittees could retain Independence Avenue, SW., animals, the public health, or to the electronic mail return receipts or Washington, DC 20250. A comment to environment. facsimile confirmation sheets to address OMB is best assured of having its full the proposed requirement for effect if OMB receives it within 30 days This proposed rule would affect all documentation that notifications have of publication of this proposed rule. veterinary biologics licensees and been made, both of which can be In this document, we are proposing to permittees. Currently, there are produced automatically by the sender’s amend the regulations in §§ 105.3 and approximately 135 veterinary biological electronic mail system or facsimile 115.2 to specify actions that veterinary establishments, including permittees. machine. There would be some biologics licensees and or permittees According to the standards of the Small personnel costs associated with would have to take when APHIS issues Business Administration, most producing and addressing the a stop distribution and sale notice veterinary biological establishments notification document that would have concerning a veterinary biological would be classified as small entities. to be sent out, but the existing product. This process would entail the Section 116.2 of the regulations requirement for the maintenance of use of two new information collection currently requires licensees and detailed disposition records discussed activities. permittees to maintain records of the in the previous paragraph should serve First, after being contacted by APHIS, quantity and location of each biological to minimize, to the extent possible, the veterinary biologics licensees or product that is prepared, that is in time spent engaging in those activities. permittees would be required to storage, and that is in distribution Under these circumstances, the immediately provide stop distribution channels. In addition, each licensee, Administrator of the Animal and Plant and sale notification to wholesalers, distributor, and permittee must Health Inspection Service has jobbers, dealers, consignees, or other maintain detailed disposition records determined that this action would not persons in their respective distribution showing the sale, shipment, or other have a significant economic impact on systems known to be in possession of disposition of any biological products a substantial number of small entities. such product. that they have handled. Given these Second, veterinary biologics licensees existing recordkeeping requirements, Executive Order 12372 and permittees would have to obtain a APHIS believes that the proposed This program is listed in the category complete accounting of the inventory of requirement that licensees and of Federal Domestic Assistance under such product in the possession of such permittees submit to APHIS a complete No. 10.025 and is subject to Executive wholesalers, jobbers, dealers, and other accounting of the inventory of an Order 12372, which requires persons in their distribution system. affected serial or subserial of a intergovernmental consultation with We are soliciting comments from the biological product in the current State and local officials. (See 7 CFR part public (as well as affected agencies) possession of each person involved in 3015, subpart V.). concerning our proposed information the distribution or sale of the product collection and recordkeeping Executive Order 12988 should not impose any undue requirements. These comments will recordkeeping burden. APHIS also This proposed rule has been reviewed help us: believes that the current requirement for under Executive Order 12988, Civil (1) Evaluate whether the proposed the maintenance of detailed disposition Justice Reform. It is not intended to information collection is necessary for records would enable licensees and have retroactive effect. This rule would the proper performance of our agency’s permittees to notify persons in their not preempt any State or local laws, functions, including whether the distribution system concerning stop regulations, or policies unless they information will have practical utility; distribution and sale notifications present an irreconcilable conflict with (2) Evaluate the accuracy of our issued by APHIS without having to this rule. The Virus-Serum-Toxin Act estimate of the burden of the proposed incur any undue recordkeeping burden. does not provide administrative information collection, including the

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validity of the methodology and Accordingly, we propose to amend 9 other mark required by these assumptions used; CFR parts 105 and 115 as follows: regulations, may be inspected at any (3) Enhance the quality, utility, and time or place. If, as a result of such clarity of the information to be PART 105—SUSPENSION, inspection, it appears that any such collected; and REVOCATION, OR TERMINATION OF product is worthless, contaminated, BIOLOGICAL LICENSES OR PERMITS (4) Minimize the burden of the dangerous, or harmful, the Secretary information collection on those who are 1. The authority citation for part 105 shall give notice to stop distribution and to respond (such as through the use of would continue to read as follows: sale to the manufacturer or importer and appropriate automated, electronic, may proceed against such product Authority: 21 U.S.C. 151–159; 7 CFR 2.22, pursuant to the provisions of part 118 of mechanical, or other technological 2.80, and 371.4. collection techniques or other forms of this subchapter. 2. Section 105.3 would be amended information technology; e.g., permitting (b) When notified to stop distribution by adding a new paragraph (c) to read electronic submission of responses). and sale of a serial or subserial of a as set forth below: Estimate of burden: Public reporting veterinary biological product by the burden for this collection of information 105.3 Notices re: worthless, contaminated, Secretary, veterinary biologics licensees is estimated to average 1.7666 hours per dangerous, or harmful biological products. or permittees shall: response. * * * * * (1) Stop the preparation, distribution, Respondents: Licensees and (c) When notified to stop distribution sale, barter, exchange, shipment, or permittees and wholesalers, dealers, and sale of a serial or subserial of a importation of the affected serial(s) or jobbers, consignees, or other persons in veterinary biological product under the subserial(s) of any veterinary biological their distribution system. provisions of paragraph (a) or (b) of this product pending further instructions Estimated annual number of section, veterinary biologics licensees or from APHIS. respondents: 55. permittees shall: Estimated annual number of (1) Stop the preparation, distribution, (2) Immediately send stop distribution responses per respondent: 1.0909. sale, barter, exchange, shipment, or and sale notifications to any jobbers, Estimated annual number of importation of the affected serial(s) or wholesalers, dealers, foreign consignees, responses: 60. subserial(s) of any veterinary biological or other persons known to have any such veterinary biological product in Estimated total annual burden on product pending further instructions their possession, which instruct them to respondents: 106 hours. (Due to from APHIS. stop the preparation, distribution, sale, averaging, the total annual burden hours (2) Immediately send stop distribution barter, exchange, shipment, or may not equal the product of the annual and sale notifications to any jobbers, importation of any such veterinary number of responses multiplied by the wholesalers, dealers, foreign consignees, biological product. All notifications reporting burden per response.) or other persons known to have any shall be documented in writing by the Copies of this information collection such veterinary biological product in licensee or permittee. can be obtained from Mrs. Celeste their possession, which instruct them to Sickles, APHIS’ Information Collection stop the preparation, distribution, sale, (3) Account for the quantity of each Coordinator, at (301) 734–7477. barter, exchange, shipment, or serial(s) or subserial(s) of any veterinary importation of any such veterinary biological product at each location in Government Paperwork Elimination biological product. All notifications the distribution channel. Act Compliance shall be documented in writing by the (4) When required by the licensee or permittee. The Animal and Plant Health Administrator, submit complete and (3) Account for the quantity of each Inspection Service is committed to accurate reports of all notifications serial(s) or subserial(s) of any veterinary compliance with the Government concerning stop distribution and sale biological product at each location in Paperwork Elimination Act (GPEA), actions to the Animal and Plant Health the distribution channel. which requires government agencies in Inspection Service pursuant to § 116.5 (4) When required by the general to provide the public the option of this subchapter. of submitting information or transacting Administrator, submit complete and business electronically to the maximum accurate reports of all notifications (c) Unless and until the Secretary extent possible. For information concerning stop distribution and sale shall otherwise direct, no persons so pertinent to GPEA compliance related to actions to the Animal and Plant Health notified shall thereafter sell, barter, or this proposed rule, please contact Mrs. Inspection Service pursuant to § 116.5 exchange any such product in any place Celeste Sickles, APHIS’ Information of this subchapter. under the jurisdiction of the United Collection Coordinator, at (301) 734– States or ship or deliver for shipment PART 115—INSPECTIONS 7477. any such product in or from any State, Territory, or the District of Columbia. 3. The authority citation for part 115 List of Subjects However, failure to receive such notice would continue to read as follows: 9 CFR Part 105 shall not excuse any person from Authority: 21 U.S.C. 151–159; 7 CFR 2.22, compliance with the Virus-Serum-Toxin Animal biologics, Exports, Imports, 2.80, and 371.4. Act. Labeling, Packaging and containers, 4. Section 115.2 would be revised to Done in Washington, DC, this 2nd day of Reporting and recordkeeping read as follows: April, 2003. requirements. § 115.2 Inspections of biological products. Kevin Shea, 9 CFR Part 115 (a) Any biological product, the Acting Administrator, Animal and Plant Animal biologics, Exports, Imports, container of which bears a United States Health Inspection Service. Reporting and recordkeeping veterinary license number or a United [FR Doc. 03–8599 Filed 4–8–03; 8:45 am] requirements. States veterinary permit number or BILLING CODE 3410–34–P

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ENVIRONMENTAL PROTECTION IV. What are the environmental effects of NAAQS, the air quality of Wayne AGENCY these actions? County, Indiana should be protected. V. Summary of EPA action. 40 CFR Part 52 VI. Statutory and Executive Order Reviews. IV. What Are the Environmental Effects of These Actions? [IN153–1;FRL–7478–2] I. What Is the EPA Proposing to Particulate matter interferes with lung Approve? Approval and Promulgation of function when inhaled. Exposure to PM Implementation Plans; Indiana The EPA is proposing, through can cause heart and lung disease. PM ‘‘parallel processing,’’ to approve also aggravates asthma and bronchitis. AGENCY: Environmental Protection revisions to the annual (long-term) PM Airborne particulate is the main source Agency (EPA). limits for two boilers at the Richmond of haze that causes a reduction in ACTION: Proposed rule. Power and Light facility. These visibility. It also is deposited on the revisions to the limits in 326 IAC 6–1– ground and in the water. This harms the SUMMARY: The EPA is proposing to 14 make these long-term limits environment by changing the nutrient approve revisions to particulate matter consistent with the short-term limits and chemical balance. (PM) regulations for Richmond Power previously approved by EPA as SIP Each boiler is equipped with a control and Light Company (RPL) of Wayne revisions. The requested new PM limits device. A common 325-foot tall stack County, Indiana. On January 31, 2003, are 320 TPY for boiler no. 1 and 700 replaced two 150-foot tall stacks in Indiana requested that EPA ‘‘parallel TPY for boiler no. 2. 1989. Both of these features help reduce process’’ this State Implementation Plan Parallel processing enables EPA to PM concentration. Although the (SIP) revision request, as an amendment propose action on a state rule before it proposed new long-term emission limits to 326 Indiana Administrative Code becomes final under state law. If the are an increase over current limits, they (IAC) 6–1–14. RPL operates a power final, adopted state rule is substantially are consistent with the short-term plant with two coal-fired boilers. EPA unchanged from the submission on limits. The short-term limits should approved revisions to the short-term PM which the proposed rule is based, then protect against brief, high concentration limits for these boilers on April 9, 1996 EPA may take final action based on its episodes. The modeling analysis found (61 FR 15704). Indiana is now seeking proposal. Significant changes in the rule that with the new limits, the annual PM to revise the long-term (annual) PM between the version reviewed and the NAAQS should be maintained. limits for RPL to make them consistent final, adopted version, may result in a Therefore, the new limits being with the short-term limits. The new PM new EPA proposed rule on the adopted proposed should protect the air quality limits are 320 tons per year (TPY) for rule. Without such significant changes, of Wayne County, Indiana. boiler no. 1 and 700 TPY for boiler no. EPA will proceed with final rulemaking. V. Summary of EPA Action 2. Modeling analyses show that air II. What Are the Proposed Changes quality is expected to be maintained. EPA is proposing, through parallel From the Current Rule? processing, to approve revisions to 326 DATES: The EPA must receive written IAC 6–1–14, the PM emission limits for comments by May 9, 2003. Indiana submitted, as a parallel processing request, revisions to 326 IAC Wayne County, Indiana. These revisions ADDRESSES: You should mail written 6–1–14 on January 31, 2003. Indiana change the long-term (annual) PM comments to: J. Elmer Bortzer, Chief, revised the long-term PM limits for the emission limits for both boilers at the Regulation Development Section, Air two RPL boilers to make them RPL facility to make them consistent Programs Branch (AR–18J), U.S. consistent with their short-term limits. with short-term limits for these sources. Environmental Protection Agency, For boiler no. 1, the new limit is 320 EPA approved revisions to the short- Region 5, 77 West Jackson Boulevard, TPY; for boiler no. 2, the new limit is term limits for RPL on April 9, 1996. Chicago, Illinois 60604. 700 TPY. The previous limits were 71.6 The PM modeling analysis show You may inspect copies of Indiana’s TPY and 233.3 TPY, respectively. RPL’s concentrations below the NAAQS level, submittal at: Regulation Development short-term limits remain at 0.19 pounds demonstrating that the air quality of Section, Air Programs Branch (AR–18J), per million British Thermal Units (lb/ Wayne County, Indiana should be U.S. Environmental Protection Agency, MMBTU) and 0.22 lb/MMBTU, protected. Region 5, 77 West Jackson Boulevard, respectively. The combined short-term VI. Statutory and Executive Order Chicago, Illinois 60604. emissions limit for both boilers stays at Reviews FOR FURTHER INFORMATION CONTACT: Matt 0.22 lb/MMBTU. Rau, Environmental Engineer, Executive Order 12866: Regulatory III. What Is the EPA’s Analysis of the Regulation Development Section, Air Planning and Review Supporting Materials? Programs Branch (AR–18J), U.S. Under Executive Order 12866 (58 FR Environmental Protection Agency, Indiana submitted a PM modeling 51735, October 4, 1993), this action is Region 5, 77 West Jackson Boulevard, analysis for RPL on August 8, 1995 as not a ‘‘significant regulatory action’’ and Chicago, Illinois 60604, Telephone: part of the SIP revision request therefore is not subject to review by the (312) 886–6524. approved by EPA in April 1996. This Office of Management and Budget. modeling analysis applies to both the SUPPLEMENTARY INFORMATION: Executive Order 13211: Actions Throughout this document wherever short-term limits approved in 1996 and to the new long-term limits. The Concerning Regulations That ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ are used we mean Significantly Affect Energy Supply, the EPA. maximum modeled annual PM concentration was 42.5 micrograms per Distribution, or Use µ 3 µ 3 Table of Contents meter cubed ( g/m ). This is 1.7 g/m For this reason, this action is also not I. What is the EPA proposing to approve? above the measured background subject to Executive Order 13211, µ 3 II. What are the proposed changes from the concentration of 40.8 g/m . The annual ‘‘Actions Concerning Regulations That current rule? National Ambient Air Quality Standard Significantly Affect Energy Supply, III. What is the EPA’s analysis of the (NAAQS) for PM is 50 µg/m3. As the Distribution, or Use’’ (66 FR 28355, May supporting materials? modeled concentration is below the 22, 2001).

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Regulatory Flexibility Act the Clean Air Act. In this context, in the Dated: April 1, 2003. This action merely approves state law absence of a prior existing requirement Bharat Mathur, as meeting Federal requirements and for the State to use voluntary consensus Acting Regional Administrator, Region 5. imposes no additional requirements standards (VCS), EPA has no authority [FR Doc. 03–8538 Filed 4–8–03; 8:45 am] beyond those imposed by state law. to disapprove a SIP submission for BILLING CODE 6560–50–P Accordingly, the Administrator certifies failure to use VCS. It would thus be that this rule will not have a significant inconsistent with applicable law for economic impact on a substantial EPA, when it reviews a SIP submission, ENVIRONMENTAL PROTECTION number of small entities under the to use VCS in place of a SIP submission AGENCY Regulatory Flexibility Act (5 U.S.C. 601 that otherwise satisfies the provisions of 40 CFR Part 271 et seq.). the Clean Air Act. Thus, the Unfunded Mandates Reform Act requirements of section 12(d) of the [FRL–7478–9] National Technology Transfer and Because this rule approves pre- Advancement Act of 1995 (15 U.S.C. Hazardous Waste Management existing requirements under state law 272 note) do not apply. Program: Final Authorization of State and does not impose any additional Hazardous Waste Management enforceable duty beyond that required Paperwork Reduction Act Program Revisions for State of by state law, it does not contain any Oklahoma unfunded mandate or significantly or This rule does not impose an uniquely affect small governments, as information collection burden under the AGENCY: Environmental Protection described in the Unfunded Mandates provisions of the Paperwork Reduction Agency (EPA). Reform Act of 1995 (Public Law 104–4). Act of 1995 (44 U.S.C. 3501 et seq.). ACTION: Proposed rule and request for comment. Executive Order 13175: Consultation Congressional Review Act and Coordination With Indian Tribal SUMMARY: The EPA (also ‘‘the Agency’’ The Congressional Review Act, 5 Governments in this preamble) is proposing to grant U.S.C. 801 et seq., as added by the Small This rule also does not have tribal final authorization to the State of implications because it will not have a Business Regulatory Enforcement Oklahoma Department of Environmental substantial direct effect on one or more Fairness Act of 1996, generally provides Quality (ODEQ) for its hazardous waste Indian tribes, on the relationship that before a rule may take effect, the program revisions, specifically, between the Federal Government and agency promulgating the rule must revisions needed to meet the Resource Indian tribes, or on the distribution of submit a rule report, which includes a Conservation and Recovery Act (RCRA), power and responsibilities between the copy of the rule, to each House of the Cluster X which contains Federal rules Federal Government and Indian tribes, Congress and to the Comptroller General promulgated from July 1, 1999, to June as specified by Executive Order 13175 of the United States. EPA will submit a 30, 2000. In the ‘‘Rules and (65 FR 67249, November 9, 2000). report containing this rule and other Regulations’’ section of this Federal required information to the U.S. Senate, Register, EPA is authorizing the Executive Order 13132: Federalism the U.S. House of Representatives, and revisions as an immediate final rule This action also does not have the Comptroller General of the United without prior proposal because the EPA Federalism implications because it does States prior to publication of the rule in views this action as noncontroversial not have substantial direct effects on the the Federal Register. A major rule and anticipates no adverse comments. States, on the relationship between the cannot take effect until 60 days after it The Agency has explained the reasons national government and the States, or is published in the Federal Register. for this authorization in the preamble to on the distribution of power and This action is not a ‘‘major rule’’ as the immediate final rule. If EPA does responsibilities among the various defined by 5 U.S.C. 804(2). not receive adverse written comments, levels of government, as specified in the immediate final rule will become Executive Order 13132 (64 FR 43255, Under section 307(b)(1) of the Clean effective and the Agency will not take August 10, 1999). This action merely Air Act, petitions for judicial review of further action on this proposal. If EPA approves a state rule implementing a this action must be filed in the United receives adverse written comments, a Federal standard, and does not alter the States Court of Appeals for the second Federal Register document will relationship or the distribution of power appropriate circuit by June 9, 2003. be published before the time the and responsibilities established in the Filing a petition for reconsideration by immediate final rule takes effect. The Clean Air Act. the Administrator of this final rule does second document may withdraw the not affect the finality of this rule for the Executive Order 13045: Protection of immediate final rule or identify the purposes of judicial review nor does it Children From Environmental Health issues raised, respond to the comments and Safety Risks extend the time within which a petition and affirm that the immediate final rule for judicial review may be filed, and will take effect as scheduled. Any This rule also is not subject to shall not postpone the effectiveness of parties interested in commenting on this Executive Order 13045 ‘‘Protection of such rule or action. This action may not action should do so at this time. Children from Environmental Health be challenged later in proceedings to Risks and Safety Risks’’ (62 FR 19885, DATES: Written comments must be enforce its requirements. (See section received on or before May 9, 2003. April 23, 1997), because it is not 307(b)(2).) economically significant. ADDRESSES: Mail written comments to List of Subjects in 40 CFR Part 52 Alima Patterson, Region 6, Regional National Technology Transfer Authorization Coordinator, Grants and Advancement Act Environmental protection, Air Authorization Section (6PD–G), In reviewing SIP submissions, EPA’s pollution control, Intergovernmental Multimedia Planning and Permitting role is to approve state choices, relations, Particulate matter, Reporting Division, at the address shown below. provided that they meet the criteria of and recordkeeping requirements. You can examine copies of the materials

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submitted by the State of Oklahoma Mesh Area (RMA); regulations inch (16.51–cm) diamond mesh during normal business hours at the pertaining to the GOM Rolling Closure preceded by a 7–inch (17.78–cm) square following locations: EPA Region 6, 1445 Areas III and V; days-at-sea (DAS) mesh escape window in the extension; Ross Avenue, Dallas, Texas 75202–2733, restrictions; and minimum fish size (2) a codend made of 6.5–inch (16.51– (214) 665–6444; or Oklahoma requirements. The experiment proposes cm) diamond mesh preceded by a 7– Department of Environmental Quality, to conduct a study to target cod and inch (17.78–cm) hexagonal mesh escape 707 North Robinson, Oklahoma City, other groundfish species using modified window in the extension; (3) a codend Oklahoma 73101–1677, (405) 702–7180. bottom trawl gear to assess the made of 6.5–inch (16.51–cm) diamond FOR FURTHER INFORMATION CONTACT: effectiveness of square and hexagonal mesh preceded by a 7–inch (17.78–cm) Alima Patterson (214) 665–8533. mesh escape windows, both with and square mesh escape window in the SUPPLEMENTARY INFORMATION: For without visual stimuli, in reducing the extension, with additional visual additional information, please see the bycatch of non-target and undersized stimulus by a black panel wrapped immediate final rule published in the fish in the GOM groundfish fishery. The around the codend between the escape ‘‘Rules and Regulations’’ section of this EFP would allow these exemptions for window and the codend; (4) a codend Federal Register. three commercial fishing vessels, for not made of 6.5–inch (16.51–cm) diamond more than 24 days of sea trials. All mesh preceded by a 7–inch (17.78–cm) Dated: March 27, 2003. experimental work would be monitored hexagonal mesh escape window in the Lawrence E. Starfield, at sea by observers trained to NMFS extension, with additional visual Acting Regional Administrator, Region 6. standards as part of this Cooperative stimulus by a black panel wrapped [FR Doc. 03–8668 Filed 4–8–03; 8:45 am] Research Partners Initiative-funded around the codend between the escape BILLING CODE 6560–50–P project. Regulations under the window and the codend. Two Magnuson-Stevens Fishery conventional nets of 6.5–inch (16.51– Conservation and Management Act cm) diamond mesh and 6.5–inch DEPARTMENT OF COMMERCE require publication of this notification (16.51–cm) square mesh codends would to provide interested parties the be used to compare the effectiveness of National Oceanic and Atmospheric opportunity to comment on applications the experimental extension Administration for proposed EFPs. configurations. For each of the four DATES: Comments on this document experimental codend configurations, a 50 CFR Part 600 must be received on or before April 24, total of 30 valid tows would be [I.D. 032803B] 2003. conducted, while a total of 18 valid ADDRESSES: Written comments should tows would be conducted for each of the Magnuson-Stevens Act Provisions; be sent to Patricia A. Kurkul, Regional two control codends, for a project total General Provisions for Domestic Administrator, NMFS, Northeast of approximately 156 tows of 20 Fisheries; Application for Exempted Regional Office, 1 Blackburn Drive, minutes each in duration. Each of the Fishing Permit (EFP) Gloucester, MA 01930. Mark the outside three participating vessels would test all of the envelope ‘‘Comments on the six of the codend configurations, AGENCY: Department of Commerce, concurrently, in different portions of the National Oceanic and Atmospheric Cooperative Research Partners Initiative Escape Window and Visual Stimuli intended sampling area. Sampling Administration (NOAA), National would occur during two seasons (spring Marine Fisheries Service (NMFS). Selectivity Study.’’ Comments may also be sent via facsimile (fax) to (978) 281– and fall), with operations taking place in ACTION: Notification of a proposal for 9135. May and October 2003, respectively. EFPs to conduct experimental fishing; A total of 24 DAS would be used request for comments. FOR FURTHER INFORMATION CONTACT: during the course of this research. Each Douglas W. Christel, Fisheries vessel would conduct 4–day fishing SUMMARY: The Administrator, Northeast Management Specialist, 978–281–9141. trips during each of the two seasons to Region, NMFS (Regional Administrator) SUPPLEMENTARY INFORMATION: A carry out the sea trials. Vessels would has made a preliminary determination completed application for an EFP was target the following species: Atlantic that the subject EFP application submitted by Dr. Christopher Glass as cod, haddock, yellowtail flounder, contains all the required information part of a Cooperative Research Partners winter flounder, summer flounder, and and warrants further consideration. The Initiative-funded project on January 28, American plaice. The incidental catch is Regional Administrator has also made a 2003. The EFP would exempt three expected to be comprised mainly of preliminary determination that the federally permitted commercial fishing skate, smooth and spiny dogfish, activities authorized under the EFP vessels from the following NE sculpin, sea raven, and sea robin. would be consistent with the goals and multispecies provisions: The minimum The applicant requested that the objectives of the Northeast (NE) mesh size requirements for the GOM research be conducted in the GOM in an Multispecies Fishery Management Plan RMA at 50 CFR 648.80(a)(3)(i); area including 30–minute statistical (FMP). However, further review and regulations pertaining to the GOM squares 124, 125, 132, and 133; i.e., consultation may be necessary before a Rolling Closure Areas III and V at 50 between 42°00’ and 43°00’ N. lat. and final determination is made to issue the CFR 648.81(g)(1)(iii) and (v), between 70°00’ and 71°00’ W. long. All EFP. Therefore, NMFS announces that respectively; NE multispecies DAS fish retained by the experimental nets the Regional Administrator proposes to restrictions at 50 CFR 648.82(a); and would be weighed and measured as issue an EFP that would allow three minimum fish size requirements quickly as possible. Undersized fish vessels to conduct fishing operations specified at 50 CFR 648.83(a)(1). would be returned to the sea as quickly that are otherwise restricted by the The EFP would allow the commercial as possible after measurement, while regulations governing the fisheries of vessels to conduct the proposed study legal-sized fish would be landed and the Northeastern United States. The EFP using modified bottom trawl gear. A sold to offset vessel costs. would exempt three vessels from the total of four experimental codend The catches of each codend minimum mesh size requirements for configurations would be developed, configuration would be compared and the Gulf of Maine (GOM) Regulated including: (1) A codend made of 6.5– analyzed to assess the effectiveness of

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the escape windows, visual stimuli, and Vessel Trip Reports. The data collection Administrator to terminate the codend mesh shapes (diamond versus activities aboard the participating vessel experimental fishery at any time, at her square mesh). Length frequency would be observers trained to NMFS discretion. distributions and catch rates would be standards to ensure compliance with the Based on the results of the EFPs, this compared for each species by vessel, experimental fishery objectives. The action may lead to future rulemaking. area, and experimental net EFP would also contain a provision that configuration. Selectivity parameters the Regional Administrator has the Authority: 16 U.S.C. 1801 et seq. would be developed for each species, authority to reconsider the continuation Dated: April 3, 2003. including a determination of the 50– of the experimental fishery on a month- Richard W. Surdi, percent retention length, the selection to-month basis, based upon a monthly factor, and the selection range for each Acting Director, Office of Sustainable status report outlining total catch and species targeted in this study. Fisheries, National Marine Fisheries Service. The participating vessels would be bycatch submitted by the applicant, and [FR Doc. 03–8685 Filed 4–8–03; 8:45 am] required to report all landings in their would authorize the Regional BILLING CODE 3510–22–S

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Notices Federal Register Vol. 68, No. 68

Wednesday, April 9, 2003

This section of the FEDERAL REGISTER 03–033–1 when submitting your request or petition must be contained in contains documents other than rules or statements. the body of your message; do not send proposed rules that are applicable to the This notice of meeting is given attached files. Please include your name public. Notices of hearings and investigations, pursuant to section 10 of the Federal and address in your message and committee meetings, agency decisions and Advisory Committee Act (5 U.S.C. App. ‘‘Docket No. 03–035–1’’ on the subject rulings, delegations of authority, filing of petitions and applications and agency II). line. statements of organization and functions are Done in Washington, DC, this 2nd day of You may request a copy of the examples of documents appearing in this April, 2003. regulatory review period determination section. Kevin Shea, by writing to Dr. Patricia L. Foley, USDA, APHIS, VS, CVB–LPD, 510 Acting Administrator, Animal and Plant Health Inspection Service. South 17th Street, Suite 104, Ames, IA DEPARTMENT OF AGRICULTURE 50010–8197, or by calling (515) 232– [FR Doc. 03–8600 Filed 4–8–03; 8:45 am] 5785. Please refer to the docket number, Animal and Plant Health Inspection BILLING CODE 3410–34–P date, and complete title of this notice Service when requesting copies. A copy of the regulatory review DEPARTMENT OF AGRICULTURE [Docket No. 03–033–1] period determination and any revision Animal and Plant Health Inspection requests or due diligence petitions that National Wildlife Services Advisory Service we receive on this determination are Committee; Meeting available for public inspection in our [Docket No. 03–035–1] reading room. The reading room is AGENCY: Animal and Plant Health located in room 1141 of the USDA Inspection Service, USDA. Determination of Regulatory Review South Building, 14th Street and ACTION: Notice of meeting. Period for Purposes of Patent Independence Avenue SW.,  Extension; Poulvac ST Vaccine Washington, DC. Normal reading room SUMMARY: Pursuant to the Federal AGENCY: Animal and Plant Health hours are 8 a.m. to 4:30 p.m., Monday Advisory Committee Act, we are giving through Friday, except holidays. To be notice of a meeting of the National Inspection Service, USDA. ACTION: Notice. sure someone is there to help you, Wildlife Services Advisory Committee. please call (202) 690–2817 before DATES: The meeting will be held on June SUMMARY: We are advising the public coming. 24, 2003, from 8 a.m. to 5 p.m. and June that the Animal and Plant Health APHIS documents published in the 25, 2003, from 8 a.m. to noon. Inspection Service has determined the Federal Register, and related ADDRESSES: The meeting will be held at regulatory review period for Poulvac information, including the names of the USDA Center at Riverside, 4700 ST Vaccine and is publishing this notice organizations and individuals who have River Road, Riverdale, MD. of that determination as required by commented on APHIS dockets, are FOR FURTHER INFORMATION CONTACT: Mrs. law. We have made this determination available on the Internet at http:// Joanne Garrett, Director, Operational in response to the submission of an www.aphis.usda.gov/ppd/rad/ Support Staff, WS, APHIS, 4700 River application to the Commissioner of webrepor.html. Road, Unit 87, Riverdale, MD 20737– Patents and Trademarks, Department of FOR FURTHER INFORMATION CONTACT: Dr. 1234, (301) 734–7921. Commerce, for the extension of a patent Albert P. Morgan, Chief Staff Officer, SUPPLEMENTARY INFORMATION: The that claims that veterinary biologic. Operational Support Section, Center for National Wildlife Services Advisory DATES: We will consider all requests for Veterinary Biologics, Licensing and Committee (Committee) advises the revision of the regulatory review period Policy Development, VS, APHIS, 4700 Secretary of Agriculture concerning determination that we receive on or River Road Unit 148, Riverdale, MD policies, program issues, and research before May 9, 2003. We will consider all 20737–1231; phone (301) 734–8245; fax needed to conduct the Wildlife Services due diligence petitions that we receive (301) 734–4314. For information (WS) program. The Committee also on or before October 6, 2003. regarding the regulatory review period serves as a public forum enabling those ADDRESSES: You may submit revision determination, contact Dr. Patricia L. affected by the WS program to have a requests and due diligence petitions by Foley, APHIS, VS, CVB–LPD, 510 South voice in the program’s policies. postal mail/commercial delivery or by e- 17th Street, Suite 104, Ames, IA 50010– The meeting will focus on operational mail. If you use postal mail/commercial 8197; phone (515) 232–5785. and research activities and will be open delivery, please send four copies of your SUPPLEMENTARY INFORMATION: The to the public. Due to time constraints, request or petition (an original and three provisions of 35 U.S.C. 156, ‘‘Extension the public will not be able to participate copies) to: Docket No. 03–035–1, of patent term,’’ provide, generally, that in the Committee’s discussions. Regulatory Analysis and Development, a patent for a product may be extended However, written statements concerning PPD, APHIS, Station 3C71, 4700 River for a period of up to 5 years as long as meeting topics may be filed with the Road Unit 118, Riverdale, MD 20737– the patent claims a product that, among Committee before or after the meeting 1238. Please state that your request or other things, was subject to a regulatory by sending them to Mrs. Joanne Garrett petition refers to Docket No. 03–035–1. review period before its commercial at the address listed under FOR FURTHER If you use e-mail, address your request marketing or use. (The term ‘‘product’’ INFORMATION CONTACT, or may be filed at or petition to is defined in that section as ‘‘a drug the meeting. Please refer to Docket No. [email protected]. Your product’’ [which includes veterinary

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biological products] or ‘‘any medical requested APHIS’ assistance in file a petition with APHIS, no later than device, food additive, or color additive determining this patent’s eligibility for 180 days after the date of this notice (see subject to regulation under the Federal patent term restoration. In a letter dated DATES above), alleging that a license Food, Drug, and Cosmetic Act.’’) A January 22, 2003, APHIS advised the applicant did not act with due diligence product’s regulatory review period Patent and Trademark Office that this in seeking APHIS approval of the forms the basis for determining the veterinary biologic had undergone a product during the regulatory review amount of extension an applicant may regulatory review period and that the period. The filing, format, and content receive. approval of Poulvac  ST Vaccine of a petition must be as described in the The regulations in 9 CFR part 124, (Salmonella Typhimurium Vaccine, regulations in ‘‘Subpart D-Due Diligence ‘‘Patent Term Restoration’’ (referred to Live Virus) represented the first Petitions’’ (§§ 124.30 through 124.33). below as the regulations), set forth permitted commercial licensing or use Authority: 35 U.S.C. 156. procedures and requirements for the of the product. Subsequently, the Patent Animal and Plant Health Inspection and Trademark Office requested that Done in Washington, DC, this 2nd day of April, 2003. Service’s (APHIS) review of applications APHIS determine the product’s for the extension of the term of certain regulatory review period. Kevin Shea, patents for veterinary biological APHIS has determined that the Acting Administrator, Animal and Plant products pursuant to 35 U.S.C. 156. As applicable regulatory review period for Health Inspection Service. identified in the regulations, the Poulvac  ST Vaccine is 1,695 days. Of [FR Doc. 03–8601 Filed 4–8–03; 8:45 am] responsibilities of APHIS include: this time, 128 days occurred during the BILLING CODE 3410–34–P • Assisting Patent and Trademark testing phase of the regulatory review Office of the U.S. Department of period, and 1,567 days occurred during Commerce in determining eligibility for the approval phase. These periods were DEPARTMENT OF AGRICULTURE patent term restoration; derived from the following dates: • Determining the length of a 1. The date the authority to prepare Commodity Credit Corporation product’s regulatory review period; an experimental biological product • Notice of Request for Extension of a If petitioned, reviewing and ruling under the Virus-Serum-Toxin Act (21 on due diligence challenges to APHIS’s Currently Approved Information U.S.C. 151 et seq.) became effective: Collection regulatory review period September 26, 1996. APHIS has verified determinations; and • the applicant’s claim that the test was AGENCY: Commodity Credit Corporation, Conducting hearings to review begun on September 26, 1996. USDA. initial APHIS findings on due diligence 2. The date the application for a ACTION: challenges. Notice and request for license was initially submitted for comments. The regulations are designed to be approval under the Virus-Serum-Toxin used in conjunction with regulations Act: January 31, 1997. APHIS has SUMMARY: In accordance with the issued by the Patent and Trademark verified the applicant’s claim that the Paperwork Reduction Act of 1995, this Office concerning patent term application was initially submitted on notice announces the Commodity Credit extension, which may be found at 37 January 31, 1997. Corporation’s (CCC) intention to request CFR 1.710 through 1.791. 3. The date the license was issued: an extension for a currently approved A regulatory review period consists of May 16, 2001. APHIS has verified the information collection in support of the two periods of time: A testing phase and applicant’s claim that the license for the Regulations—Financing Commercial an approval phase. For veterinary commercial marketing of the vaccine Sales of Agricultural Commodities biologics, the testing phase begins on was issued on May 16, 2001. under Title I, Public Law 480; Request the date the authorization to prepare an This determination of the regulatory for Vessel Approval, Form CCC–105 and experimental veterinary biologic became review period establishes the maximum Request for Vessel Approval Form CCC– effective and runs until the approval potential length of a patent extension. 105 (cotton); and Declaration of Sale, phase begins. The approval phase However, the U.S. Patent and Form FAS–359. begins on the date an application for a Trademark Office applies several DATES: Comments on this notice must be license was initially submitted for statutory limitations in its calculations approval and ends on the date such received by June 9, 2003, to be assured of the actual period for patent extension. of consideration. license was issued. Although only a In its application for for patent FOR FURTHER INFORMATION OR COMMENTS portion of a regulatory review period extension, this applicant seeks 1,695 may count toward the actual amount of CONTACT: William Hawkins, Director, days of patent term extension. Program Administration Division, extension that the Commissioner of Section 124.22 of the regulations Foreign Agricultural Service, U.S. Patents and Trademarks may award, provides that any interested person may Department of Agriculture, Stop 1031, APHIS’ determination of the length of a request a revision of the regulatory Washington, DC 20250–1031, telephone regulatory review period for a veterinary review period determination within 30 (202) 720–3241. biologic will include all of the testing days of the date of this notice (see DATES phase and approval phase as specified above). The request must specify the SUPPLEMENTARY INFORMATION: in 35 U.S.C. 156(g)(5)(B). following: Title: Regulations—Financing APHIS recently licensed for • The identity of the product; Commercial Sales of Agricultural production and marketing the veterinary • The identity of the applicant for Commodities under Title I, Pub. L. 480 biologic Poulvac  ST Vaccine. patent term restoration; (0551–0005); Request for Vessel Subsequent to this approval, the Patent • The docket number of this notice; Approval, Form CCC–105 (0551–0008); and Trademark Office received a patent and and Request for Vessel Approval Form term restoration application for • The basis for the request for CCC–105 (cotton) and Declaration of Poulvac  ST Vaccine (U.S. Patent No. revision, including any documentary Sale, Form FAS–359 (0551–0009). 4,735,801) from the Board of Trustees of evidence. OMB Numbers: 0551–0005 (Records Leland Stanford Junior University, and Further, under § 124.30 of the and Rule Keeping) and 0551–0008 the Patent and Trademark Office regulations, any interested person may (Request for Vessel Approval Form) and

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0551–0009 (Declaration of Sale Form). Estimated Number of Respondents: 45 Farm Service Agency (FSA) and the These will be combined into OMB per annum. Commodity Credit Corporation (CCC), is Number 0551–0005 if this request is Estimated Total Annual Burden of seeking comments from all interested approved. Respondents: 565.00 hours. individuals and organizations on a Expiration Date of Approval: August Copies of this information collection currently approved information 31, 2003. can be obtained from Kimberly Chisley, collection with revision. This Type of Request: Extension and the Agency Information Collection information collection is used to revision of currently approved Coordinator, at (202) 720–2568. support payment eligibility and information collections, with change to Requests for Comments: Send payment limitation determinations for a combine 0551–0005 (Records and Rule comments regarding (a) whether the multiple programs including the Keeping); 0551–0008 (Request for Vessel proposed collection of information is Conservation Reserve Program, the Price Approval) and 0551–0009 (Declaration necessary for the proper performance of Support Programs, and the Direct and of Sale Form). the functions of the agency, including Counter-Cyclical Program authorized by Abstract: Title I of The Agricultural whether the information will have the Farm Security and Rural Investment Trade Development and Assistance Act practical utility; (b) the accuracy of the Act of 2002, and the Noninsured Crop of 1954, as amended, (Pub. L. 83–480) agency’s estimate of the burden of the Disaster Assistance Program. authorizes the CCC to finance the sale proposed collection of information; (c) DATES: Comments on this notice must be and exportation of agricultural ways to enhance the quality, utility and received on or before June 9, 2003, to be commodities on concessional credit clarity of the information to be assured consideration. Comments terms. Suppliers of commodities and collected; and (d) ways to minimize the received after that date will be ocean transportation must retain records burden of the collection of information considered to the extent practicable. for 3 years. Prospective commodity on those who are to respond, including ADDRESSES: Comments concerning this suppliers must provide information for through the use of automated, notice should be addressed to Farm the Department to determine eligibility. electronic, mechanical, or other Service Agency, Attn: James Baxa, Commodity suppliers must report technological collection techniques or Agricultural Program Specialist, details of sales for price approval and other forms of information technology. Production, Emergencies, and submit to USDA, for approval, Comments may be sent to William Compliance Division, Farms Service information on any amendments to the Hawkins, Director, Program Agency, United States Department of sales. Shipping agents nominated by Administration Division, Foreign Agriculture, STOP 0517, Room 4752, importing countries must submit Agricultural Service, U.S. Department of South Building, 1400 Independence information to allow identification of Agriculture, Stop 1031, Washington, DC Avenue, SW., Washington, DC 20250– possible conflicts of interest. Shipping 20250–1031, or to the Desk Officer for 0517. Comments also may be submitted agents or embassies submit pertinent Agriculture, Office of Information and via facsimile to (202) 720–4941 or by e- shipping information on Form CCC–105 Regulatory Affairs, Office of mail to [email protected]. to facilitate approval by CCC of shipping Management and Budget, Washington, arrangements. This approval is DC 20503. Persons with disabilities who FOR FURTHER INFORMATION CONTACT: necessary to assure compliance with require an alternative means for James Baxa, Agricultural Program cargo preference requirements at the communication of information (Braille, Specialist at (202) 720–4189, or Diane lowest cost to CCC. Agents submit this large print, audiotape, etc.) should Sharp, Director of Production, document in order that USDA can contact USDA’s Target Center at (202) Emergencies, and Compliance Division generate the CCC–106, a necessary 720–2600 (voice and TDD). All at (202) 720–7641. payment document. Ocean carriers then responses to this notice will be SUPPLEMENTARY INFORMATION: receive payment for ocean freight. summarized and included in the request Description of Information Collection Commodity suppliers must report for OMB approval. All comments will details of sales for price approval. Form also become a matter of public record. Title: Payment Eligibility and FAS–359, ‘‘Declaration of Sale,’’ is the Payment Limitation Determinations written record, signed by the Signed at Washington, DC, on March 27, under the Noninsured Crop Disaster commodity supplier, of the terms of sale 2003. Assistance Program. as reported by telephone. When signed A. Ellen Terpstra, OMB Control Number: 0560–0096. by the General Sales Manager, it Administrator, Foreign Agricultural Service. Expiration Date of Approval: March provides evidence of the USDA price [FR Doc. 03–8598 Filed 4–8–03; 8:45 am] 31, 2003. approval required for CCC financing. BILLING CODE 3410–10–P Type of Request: Extension of a The information collected is used by currently approved information CCC to manage, plan, evaluate and collection with revision. account for government resources. The DEPARTMENT OF AGRICULTURE Abstract: The collection of the reports and records are required to information is necessary to determine ensure the proper and judicious use of Farm Service Agency the eligibility of individuals and entities as defined at 7 CFR part 1400 for public funds. Commodity Credit Corporation Estimate of Burden: The public payment eligibility and payment Information Collection; Payment reporting burden for these collections is limitation in a multiple programs Eligibility and Payment Limitation estimated to average 8 hours per Record including, but not limited to, the Determinations Under the Noninsured Keeping, 5 hours per Vessel Approval Conservation Reserve Program, the Price Crop Disaster Assistance Program and 2 hours per Declaration of Sale Support Programs, the Direct and response. AGENCIES: Farm Service Agency and the Counter-Cyclical Program and the Respondents: Suppliers of Commodity Credit Corporation, USDA. Noninsured Corp Disaster Assistance commodities and ocean transportation; ACTION: Notice; request for comments. Program. The regulations at 7 CFR part prospective commodity suppliers; 1400, as amended, provide for an shipping agents; and business or other- SUMMARY: In accordance with the ‘‘actively engaged in farming’’ and for-profit. Paperwork Reduction Act of 1995, the ‘‘person’’ determinations to be made for

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individuals or entities, with respect to a electronic, mechanical, or other notices will identify: the decision or particular farming operation, in order to technological collection techniques or project, by title or subject matter; the determine their payment eligibility and other forms of information technology. name and title of the official making the payment limitations under the multiple All comments received in responses decision; how to obtain additional programs. Forms CCC–502A, CCC– to this notice, including names and information; and where and how to file 502B, CCC–502C, CCC–502D, CCC– addresses when provided, will be a comments or appeals. The date the 502EZ, CCC–501A and CCC–501B are matter of public record. Comments will notice is published will be used to still used by the respondents. The be summarized and included in the establish the official date for the common elements to collect information submission for Office of Management beginning of the comment or appeal from individuals or entities in the forms and Budget approval. period. The newspapers to be used are are names, as well as farming interest Signed in Washington, DC, on April 3, as follows: members, addresses, social security/ 2003. employee identification numbers, Regional Forester, Intermountain James R. Little, Region location of the lands, percentage of Administrator, Farms Service Agency, and leased or owned equipments, Executive Vice President, Commodity Credit For decisions made by the Regional citizenship types, estimated farming Corporation. Forester affecting National Forests labor hours, estimated percentage of [FR Doc. 03–8722 Filed 4–8–03; 8:45 am] in Idaho: farming management, and designated BILLING CODE 3410–05–P The Idaho Statesman, Boise, Idaho. names in receiving payments. The For decisions made by the Regional respondents are allowed to complete Forester affecting National Forests and submit the forms electronically to DEPARTMENT OF AGRICULTURE in Nevada: the appropriate FSA County-based The Reno Gazette-Journal, Reno, office that receives and makes the Forest Service Nevada. payment eligibility determinations. For decisions made by the Regional Information collection under Titles I Newspapers Used for Publication of Forester affecting National Forests and II of the Farm Security and Rural Legal Notices by the Intermountain in Wyoming: Investment Act of 2002 are exempted Region; Utah, Idaho, Nevada, and Casper Star-Tribune, Casper, from the Paperwork Reduction Act of Wyoming Wyoming. 1995, including the Conservation AGENCY: Forest Service, USDA. For decisions made by the Regional Reserve Program, the Price Support ACTION: Notice. Forester affecting National Forests Programs, and the Direct and Counter- in Utah: Cyclical Program. Only the Noninsured SUMMARY: This notice lists the Salt Lake Tribune, Salt Lake City, Crop Disaster Assistance Program is not newspapers that will be used by the Utah. exempt from the requirement of ranger districts, forests and regional For the decisions made by the Regional Paperwork Reduction Act, so it is office of the Intermountain Region to Forester that affect all National necessary to describe the information publish legal notices required under 36 Forests in the Intermountain collection in this Notice. If the CFR parts 215 and 217. The intended Region. information is not collected from the effect of this action is to inform Salt Lake Tribune, Salt Lake City, respondents, the FSA would not able to interested members of the public which Utah. administer the payment programs newspapers the Forest Service will use Ashley National Forest properly to comply with the regulations. to publish notices of proposed actions Estimate of Burden: Average 56 and notices of decision. This will Ashley Forest Supervisor decisions: minutes per response. provide the public with constructive Vernal Express, Vernal, Utah. Type of Respondents: Producers who, notice of Forest Service proposals and Duchesne District Ranger decisions: as owner, landlord, tenant, or decisions, provide information on the Uinta Basin Standard, Roosevelt, sharecropper, are involved in the procedures to comment or appeal, and Utah. farming operations and who would seek establish the date that the Forest Service Flaming Gorge District Ranger for benefits under the Noninsured Corp will use to determine if comments or decisions affecting Wyoming: Disaster Assistance Program. appeals were timely. Casper Star Tribune, Casper, Estimated Annual Number of DATES: Publication of legal notices in Wyoming. Respondents: 123,000. the listed newspapers will begin on or Flaming Gorge District Ranger for Estimated Number of Responses per after April 1, 2003. The list of decisions affecting Utah: Respondent: One per respondent. newspapers will remain in effect until Vernal Express, Vernal, Utah. Estimated Total Burden Hours: October 1, 2003, when another notice Roosevelt District Ranger decisions: 114,870. Uinta Basin Standard, Roosevelt, Comment is invited on: (1) Whether will be published in the Federal Register. Utah. this collection of information is Vernal District Ranger decisions: necessary for the proper performance of FOR FURTHER INFORMATION CONTACT: Vernal Express, Vernal, Utah. the functions of the agency, including Priscilla McLain, Regional Appeals whether the information will have Coordinator, Intermountain Region, 324 Boise National Forest practical utility; (2) the accuracy of the 25th Street, Ogden, UT 84401, and Boise Forest Supervisor decisions: agency’s estimate of burden including phone (801) 625–5146. The Idaho Statesman, Boise, Idaho. the validity of the methodology and SUPPLEMENTARY INFORMATION: The Cascade District Ranger decisions: assumptions used; (3) ways to enhance administrative procedures at 36 CFR The Long Valley Advocate, Cascade, the quality, utility and clarity of the parts 215 and 217 require the Forest Idaho. information to be collected; (4) ways to Service to publish notices in a Emmett District Ranger decisions: minimize the burden of collection on newspaper of general circulation. The The Messenger-Index, Emmett, Idaho. those who are to respond, including the content of the notices is specified in 36 Idaho City District Ranger decisions: use of appropriate automated, CFR parts 215 and 217. In general, the The Idaho Statesman, Boise, Idaho.

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Lowman District Ranger decisions: Richard Reaper, Richfield, Utah. New Meadows, District Ranger The Idaho World, Garden Valley, Beaver District Ranger decisions: decisions: Idaho. Richfield Reaper, Richfield, Utah. Star News, McCall, Idaho. Mountain Home District Ranger Fillmore District Ranger decisions: Weiser District Ranger decisions: decisions: Richfield Reaper, Richfield, Utah. Signal American, Weiser, Idaho. The Idaho Statesman, Boise, Idaho. Loa District Ranger decisions: Salmon-Challis National Forests Bridger-Teton National Forest Richfield Reaper, Richfield, Utah. Richfield District Ranger decisions: Salmon-Challis Forest Supervisor Bridger-Teton Forest Supervisor Richfield Reaper, Richfield, Utah. decisions for the Salmon portion: decisions: The Recorder-Herald, Salmon, Idaho. Casper Star-Tribune, Casper, Humboldt-Toiyabe National Forests Salmon-Challis Forest Supervisor Wyoming. Humboldt-Toiyabe Forest Supervisor decisions for the Challis portion: Big Piney District Ranger decisions: decisions for the Humboldt portion: The Challis Messenger, Challis, Idaho. Casper Star-Tribune, Casper, Elko Daily Free Press, Elko, Nevada. Challis District Ranger decisions: Wyoming. Humboldt-Toiyabe Forest Supervisor The Challis Messenger, Challis, Idaho. Buffalo District Ranger decisions: decisions for the Toiyabe portion: Leadore District Ranger decisions: Casper Star-Tribune, Casper, Reno Gazette-Journal, Reno, Nevada. The Recorder-Herald, Salmon, Idaho. Wyoming. Austin District Ranger decisions: Lost River District Ranger decisions: Greys River District Ranger decisions: Reno Gazette-Journal, Reno, Nevada. The Challis Messenger, Challis, Idaho. Casper Star-Tribune, Casper, Bridgeport District Ranger decisions: Middle Fork District Ranger decisions: Wyoming. The Review-Herald, Mammoth Lakes, The Challis Messenger, Challis, Idaho. Jackson District Ranger decisions: California. North Fork District Ranger decisions: Casper Star-Tribune, Casper, Carson District Ranger decisions: The Recorder-Herald, Salmon, Idaho. Wyoming. Reno Gazette-Journal, Reno, Nevada. Salmon/Cobalt District Ranger Kemmerer District Ranger decisions: Casper Star-Tribune, Casper, Ely District Ranger decisions: decisions: Wyoming. Ely Daily Times, Ely, Nevada. The Recorder-Herald, Salmon, Idaho. Pinedale District Ranger decisions: Jarbidge District Ranger decisions: Yankee Fork District Ranger decisions: Casper Star-Tribune, Casper, Elko Daily Free Press, Elko, Nevada. The Challis Messenger, Challis, Idaho. Mountain City District Ranger decisions: Wyoming. Sawtooth National Forest Elko Daily Free Press, Elko, Nevada. Caribou-Targhee National Forest Ruby Mountains District Ranger Sawtooth Forest Supervisor decisions: Caribou-Targhee Forest Supervisor decisions: The Times News, Twin Falls, Idaho. decisions for the Caribou portion: Elko Daily Free Press, Elko, Nevada. Fairfield District Ranger decisions: Idaho State Journal, Pocatello, Idaho. Santa Rosa District Ranger decisions: The Times News, Twin Falls, Idaho. Caribou-Targhee Forest Supervisor Humboldt Sun, Winnemucca, Nevada. Ketchum District Ranger decisions: decisions for the Targhee portion: Spring Mountains National Recreation Idaho Mountain Express, Ketchum, The Post Register, Idaho Falls, Idaho. Area District Ranger decisions: Idaho. Ashton District Ranger decisions: Las Vegas Review Journal, Las Vegas, Minidoka District Ranger decisions: The Post Register, Idaho Falls, Idaho. Nevada. The Times News, Twin Falls, Idaho. Dubois District Ranger decisions: Tonopah District Ranger decisions: Sawtooth National Recreation Area: The Post Register, Idaho Falls, Idaho. Tonopah Times Bonanza-Goldfield Challis Messenger, Challis, Idaho. Island Park District Ranger decisions: News, Tonopah, Nevada. Uinta National Forest The Post Register, Idaho Falls, Idaho. Montpelier District Ranger decisions: Manti-Lasal National Forest Uinta Forest Supervisor decisions: Idaho State Journal, Pocatello, Idaho. Manti-LaSal Forest Supervisor The Daily Herald, Provo, Utah. Palisades District Ranger decisions: decisions: Heber District Ranger decisions: The Post Register, Idaho Falls, Idaho. Sun Advocate, Price, Utah. The Daily Herald, Provo, Utah. Soda Springs District Ranger decisions: Ferron District Ranger decisions: Pleasant Grove District Ranger Idaho State Journal, Pocatello, Idaho. Emery County Progress, Castle Dale, decisions: Teton Basin District Ranger decisions: Utah. The Daily Herald, Provo, Utah. The Post Register, Idaho Falls, Idaho. Moab District Ranger decisions: Spanish Fork District Ranger decisions: Westside District Ranger decisions: The Times Independent, Moab, Utah. The Daily Herald, Provo, Utah. Idaho State Journal, Pocatello, Idaho. Monticello District Ranger decisions: Wasatch-Cache National Forest Dixie National Forest The San Juan Record, Monticello, Wasatch-Cache Forest Supervisor Dixie Forest Supervisor decisions: Utah. Price District Ranger decisions: decisions: The Daily Spectrum, St. George, Utah. Salt Lake Tribune, Salt Lake City, Cedar City District Ranger decisions: Sun Advocate, Price, Utah. Utah. The Daily Spectrum, St. George, Utah. Sanpete District Ranger decisions: Escalante District Ranger decisions: The Pyramid, Mt. Pleasant, Utah. Evanston District Ranger decisions: Uinta County Herald, Evanston, The Daily Spectrum, St. George, Utah. Payette National Forest Pine Valley District Ranger decisions: Wyoming. The Daily Spectrum, St. George, Utah. Payette Forest Supervisor decisions: Kamas District Ranger decisions: Powell District Ranger decisions: Idaho Statesman, Boise, Idaho. Salt Lake Tribune, Salt Lake City, The Daily Spectrum, St. George, Utah. Council District Ranger decisions: Utah. Teasdale District Ranger decisions: Adam County Record, Council, Idaho. Logan District Ranger decisions: The Daily Spectrum, St. George, Utah. Krassel District Ranger decisions: Logan Herald Journal, Logan, Utah. Star News, McCall, Idaho. Mountain View District Ranger Fishlake National Forest McCall District Ranger decisions: decisions: Fishlake Forest Supervisor decisions: Star News, McCall, Idaho. Uinta County Herald, Evanston,

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Wyoming. site specific application of Forest Plan 1502.14(d) and Forest Service Handbook Ogden District Ranger decisions: standards and guidelines to determine 1909.15, 23.1 to consider the No Ogden Standard Examiner, Ogden, whether or not to allow domestic Livestock Grazing alternative in detail Utah. livestock grazing on the allotment and to use it as a ‘‘baseline’’ for Salt Lake District Ranger decisions: complex. comparing the effects of the other Salt Lake Tribune, Salt Lake City, To date, the Forest Service has alternatives. Utah. identified four alternatives: Responsible Officials Dated: April 3, 2003. Alternative 1—Proposed Action Jack G. Troyer, Greg Clark, District Forest Ranger, Big The Forest Service proposes to Regional Forester. Piney Ranger District, P.O. Box 218, Big determine on the allotment complex if [FR Doc. 03–8617 Filed 4–8–03; 8:45 am] Piney, Wyoming 83113. District Forest livestock grazing of 5 sheep bands will Ranger, Greys River Ranger District, P.O. BILLING CODE 3410–11–M continue to be authorized on the Box 339, Afton, Wyoming 83110 Nancy allotment complex. All vacant allotment Hall, District Forest Ranger, Jackson DEPARTMENT OF AGRICULTURE and allotment boundary changes have Ranger District, P.O. Box 1689, Jackson, been incorporated into the complex Wyoming 83001. Forest Service through the administrative process as defined in FSH 2209.13—Grazing Nature of Decision To Be Made Bridger-Teton National Forest— Permit Administration Handbook, The decision, which is based on this Wyoming—Big Piney, Grey River and Chapter 90—Rangeland Management analysis, will be decide if livestock will Jackson Ranger Districts; Sublette and Decision Making, Interim Directive No.: be allowed to graze on the allotment Lincoln Counties, WY; Environmental 2209.13–2002–4 Section 96— complex, either through the Impact Statement for Wyoming Range Delineation of Grazing Allotments and implementation of the proposed action, Allotment Complex Section 98—Allotment Management or an alternative to the proposed action. Changes. The decision would include any AGENCY: Forest Service, USDA. Possible Alternative mitigation measures needed in addition ACTION: Notice of intent to prepare an to those prescribed in the Forest Plan. environmental impact statement. Alternative 2—No Action—Continue With the Current Livestock Management Scoping Process SUMMARY: The Wyoming Range The Forest Service is seeking Allotment Complex (composed of the The current management provides for information, comments, and assistance Corral Creek, Mule Creek, Grizzly Creek, grazing 5 bands of sheep on the from individuals, organizations, tribal Pickle Pass, Upper Grayback/Phosphate, allotment complex. All vacant allotment governments, and federal, state, and North Horse, and Prospect Peak and allotment boundary changes have local agencies interested in or affected domestic sheep allotments) is located in been incorporated into the complex by this project. Comments submitted on Townships 34, 35, 36 and 37 North, through the administrative process as the 1999 scoping effort, comments on Ranges 114, 115 and 116 West; Sixth defined in FSH 2209.13—grazing permit the Environmental Assessment released Principal Meridian. The majority of the administration handbook, chapter 90— in December of 2002, previous field area (65%) is located within Sublette rangeland management decision trips, and any new comments will be County, with the remainder being in making, Interim Directive No.: 2209.13– used to prepare the Draft Environmental Lincoln County. The complex is located 2002–4 Sections 96—Delineation of Impact Statement (DEIS). Public on three districts—Greys River, Jackson, Grazing Allotments and section 98— participation will be solicited by and Big Piney. Big Piney Ranger District Allotment Management Changes. notifying in person and/or by mail administers all the allotments except Alternative 3—Separation Between known interested and affected publics. Pickle Pass, which is administered by Domestic Sheep Grazing Area and the News releases will be used to give the the Greys River District. Bighorn Sheep Core Area Boundary— public general notice. Public DATES: Comments concerning the scope Close Upper Grayback/Phosphate, participation activities would include of the analysis must be received by May Pickle Pass, Grizzly Creek and a Portion requests for written comments. The first 11, 2003. The draft environmental of Corral Creek Allotments to Domestic formal opportunity to comment is to impact statement is expected July 2003 Sheep Grazing respond to this notice of intent, which and the final environmental impact This alternative would close the initiates the scoping process (40 CFR statement is expected September 2003. Upper Grayback/Phosphate, Pickle Pass, 1501.7). Scoping includes: (1) ADDRESSES: Send written comments to: Grizzly Creek and approximately 2⁄3 of Identifying potential issues, (2) District Ranger, Big Piney Ranger the Corral Creek allotments to domestic narrowing the potential issues and District, Box 218, Big Piney, Wyoming sheep grazing. The remaining area of identifying significant issues of those 83113. For further information, mail Corral Creek allotment would be that have been covered by prior correspondence to combined with the North Horse Creek environmental review, (3) exploring _ _ _ mailroom r4 bridger [email protected] Allotment and would remain open to alternatives in addition to No Action, and on the subject line put only domestic sheep grazing. This alternative and (4) identifying potential ‘‘Wyoming Range Complex.’’ provides separation from the bighorn environmental effects of the proposed FOR FURTHER INFORMATION CONTACT: sheep core native herd boundary and action and alternatives. District Ranger, Big Piney Ranger would include all the management Preliminary Issues District, Box 218, Big Piney, Wyoming actions described in the proposed 83113 or phone (307) 276–3710. action. The Forest Service has identified the SUPPLEMENTARY INFORMATION: following potential issues. In addition, Alternative 4—No Livestock Grazing through the April 1999 scoping effort Purpose and Need for Action No domestic livestock would be and comments received on the The Purpose and Need is to make allowed to graze on the allotment Environmental Assessment released in recommendations on interpretation and complex. We are required in 40 CFR December 2002, issues have been

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refined. Your input is especially draft environmental impact statement Dated: April 3, 2003. valuable here. It will help us determine should be as specific as possible. It is Dale Hom, which of these merit detailed analysis. also helpful if comments refer to Forest Supervisor, Olympic National Forest. It will also help identify additional specific pages or chapters of the draft [FR Doc. 03–8615 Filed 4–8–03; 8:45 am] issues related to the proposed action statement. Comments may also address BILLING CODE 3410–11–M that may not be listed here. the adequacy of the draft environmental Issue 1—Effects of grazing on impact statement or the merits of the vegetation. alternatives formulated and discussed in DEPARTMENT OF AGRICULTURE Issue 2—Effects of grazing on the statement. Reviewers may wish to watershed condition and function. refer to the Council on Environmental Forest Service Issues 3—Effects of livestock on big Quality Regulations for implementing horn sheep. the procedural provisions of the Grays Harbor Resource Advisory Issue 3—Effects of grazing on the National Environmental Policy Act at 40 Committee (RAC) Colorado cutthroat trout habitat. CFR 1503.3 in addressing these points. AGENCY: Forest Service, USDA. Comment Requested Comments received, including the ACTION: Notice of meeting. This notice of intent initiates the names and addresses of those who SUMMARY: The Grays Harbor Resource scoping process that guides the comment, will be considered part of the Advisory Committee will hold its next development of the environmental public record on this proposal and will meeting on May 8, 2003. The meeting impact statement. be available for public inspection. (Authority: 40 CFR 1501.7 and 1508.22; will be held at the Aberdeen Early Notice of Importance of Public Forest Service Handbook 1909.15, Section Timberland Library, 121 E Market Participation in Subsequent 21) Street, Aberdeen, Washington. The Environmental Review meeting will begin at 6:30 p.m. and end Dated: April 3, 2003. The Draft EIS (DEIS) is proposed to be at 8:30 p.m. Agenda topics are: Greg Clark, Approval of minutes of previous filed with the Environmental Protection District Forest Ranger. Agency (EPA) and to be available for meeting; Update on Title II Projects; [FR Doc. 03–8630 Filed 4–8–03; 8:45 am] public comment in the Spring of 2003. Presentation of FY 2003 Title II project At that time, the EPA will publish a BILLING CODE 3410–11–M proposals; Selection of recommended notice of availability for the DEIS in the projects and priorities; Public comments; and Identify next meeting Federal Register. The comment period DEPARTMENT OF AGRICULTURE on the DEIS will be 45 days from the date and location. All Grays Harbor Resource Advisory date the EPA publishes the notice of Forest Service availability in the Federal Register. The Committee Meetings are open to the Forest Service believes, at this early Olympic Peninsula Resource Advisory public. Interested citizens are stage, it is important to give reviewers Committee (RAC) encouraged to attend. notice of several court rulings related to FOR FURTHER INFORMATION CONTACT: public participation in the AGENCY: Forest Service, USDA. Direct questions regarding this meeting to Ken Eldredge, RAC Liaison, USDA, environmental review process. First, ACTION: Notice of meeting. reviewers of draft environmental impact Olympic National Forest Headquarters, 1835 Black Lake Blvd., Olympia, WA statements must structure their SUMMARY: The Olympic Peninsula 98512–5623, (360) 956–2323 or Dale participation in the environmental Resource Advisory Committee will hold review of the proposal so that it is Hom, Forest Supervisor and Designated its next meeting on May 7, 2003. The Federal Official, at (306) 956–2301. meaningful and alerts an agency to the meeting will be held at Washington reviewer’s position and contentions State University Extension Learning Dated: April 3, 2003. (Vermont Yankee Nuclear Power Corp v. Center, 201 W Pattison, Port Hadlock, Dale Hom, NRDC, 435 U.S. 519, 553 (1978)). Also, Washington. The meeting will begin at Forest Supervisor, Olympic National Forest. environmental objections that could be 9:30 a.m. and end at approximately 3:30 [FR Doc. 03–8616 Filed 4–8–03; 8:45 am] raised at the draft environmental impact p.m. Agenda topics are: Introductions; BILLING CODE 3410–11–M statement stage but that are not raised Approval of minutes of previous until after completion of the final meeting; Update on Title II and III environmental impact statement may be Projects; Presentation of project DEPARTMENT OF AGRICULTURE waived or dismissed by the courts (City proposals; Selection of recommended of Angoon v. Hodel, 803 F.2d 1016, projects and priorities; Public National Agricultural Statistics Service 1022 (9th Cir. 1986) and Wisconsin comments; and Identify next meeting Notice of Appointment to the Advisory Heritages, Inc. v. Harris, 490 F. Supp. date and location. 1334, 1338 (E.D. Wis. 1980)). Because of Committee on Agriculture Statistics these court rulings, it is very important All Olympic Peninsula Resource Advisory Committee Meetings are open AGENCY: National Agricultural Statistics that those interested in this proposed Service, USDA. action participate by the close of the 45 to the public. Interested citizens are encouraged to attend. ACTION: Notification of appointment to day comment period so that substantive the Advisory Committee on Agriculture comments and objections are made FOR FURTHER INFORMATION CONTACT: Statistics. available to the Forest Service at a time Direct questions regarding this meeting when it can meaningfully consider them to Ken Eldredge, RAC Liaison, USDA, SUMMARY: The Office of the Secretary of and respond to them in the final Olympic National Forest Headquarters, Agriculture announces members environmental impact statement. To 1835 Black Lake Blvd., Olympia, WA appointed to the Advisory Committee assist the Forest Service in identifying 98512–5623, (360) 956–2323 or Dale on Agriculture Statistics, in accordance and considering issues and concerns on Hom, Forest Supervisor and Designated with the Federal Advisory Committee the proposed action, comments on the Federal Official, at (306) 956–2301. Act, 5 U.S.C. App.

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FOR FURTHER INFORMATION CONTACT: Signed at Washington, DC, March 27, 2003. an organized and continuing channel of Carol House, Executive Director, R. Ronald Bosecker, communication between the Advisory Committee on Agriculture Administrator, National Agricultural representative race and ethnic Statistics, U.S. Department of Statistics Service. populations and the U.S. Census Agriculture, National Agricultural [FR Doc. 03–8647 Filed 4–8–03; 8:45 am] Bureau. The Committees provide an Statistics Service, 1400 Independence BILLING CODE 3410–20–P outside-user perspective about how Avenue SW., Room 4117 South research and design plans for the 2010 Building, Washington, DC 20250–2000. reengineered decennial census, the Telephone: 202–720–4333, Fax: 202– DEPARTMENT OF COMMERCE American Community Survey, and other 720–9013, or e-mail: related programs realize goals and [email protected]. Bureau of the Census satisfy needs associated with these communities. They also assist the SUPPLEMENTARY INFORMATION: The Census Advisory Committees Census Bureau on ways that census data appointment for the twenty-five member can best be disseminated to diverse race AGENCY: Bureau of the Census, committee, which has representation Department of Commerce. and ethnic populations and other users. across seven categories which covers a All meetings are open to the public. ACTION: broad range of agricultural disciplines Notice of public meeting. A brief period will be set aside at the and interests, was signed on February SUMMARY: Pursuant to the Federal meeting for public comment. However, 13, 2003. Appointed members, by their Advisory Committee Act, Title 5, United individuals with extensive questions or associated category are: Consumer and States Code, Appendix 2, section statements must submit them in writing Information Organizations—Robert W. 10(a)(b), the Bureau of the Census to the Committee Liaison Officer, named Spear, Nobleboro, ME; Ross Ronald (Census Bureau) is giving notice of a above, at least three days before the Racine, Billings, MT; James Dennis joint meeting, followed by separate and meeting. Seating is available to the Rieck, Winfield, IL. Educational concurrently held meetings of the public on a first-come, first-served basis. Organizations—Ling-Jung (Kelvin) Census Advisory Committees (CACs) on These meetings are physically Koong, Corvallis, OR; Bobby Ray Phills, the African American Population, the accessible to people with disabilities. Tallahassee, FL; Edmund R. Gomez, American Indian and Alaska Native Requests for sign language Alcalde, NM. Farm Services Populations, the Asian Population, the interpretation or other auxiliary aids Organizations—Jacklyn M. Folsom, Hispanic Population, and the Native should be directed to the Committee Cabot, VT; John Irving Gifford, Rock Hawaiian and Other Pacific Islander Liaison Officer as soon as known and Island, IL; Jack Charles Mitenbuler, Populations. The Committees will preferably two weeks prior to the Indianapolis, IN; Ranvir Singh, address issues related to the 2010 meeting. Marysville, CA; Mark Edward Whalon, reengineered decennial census, Dated: April 2, 2003. East Lansing, MI. Government including the American Community Hermann Habermann, Agencies—Robert Dale Epperson, Survey and other related decennial Deputy Director, Bureau of the Census. Fresno, CA. National Farm programs. The five Census Advisory [FR Doc. 03–8631 Filed 4–8–03; 8:45 am] Committees on Race and Ethnicity will Organizations— Carol Ann Gregg, Grove BILLING CODE 3510–07–P City, PA; Mark W. Jenner, Mt. Prospect, meet in plenary and concurrent sessions IL; Sheila Kay Massey, Animas, NM; on May 6 and 7. Last-minute changes to Ivan W. Wyatt, Cedar Point, KS. the schedule are possible, which could DEPARTMENT OF COMMERCE Producer and Marketing prevent us from giving advance Organizations—Mark Dale Lange, notification. Foreign-Trade Zones Board Cordova, TN; Andrew William LaVigne, DATES: May 6–7, 2003. On May 6, the [Docket No. 54–2002] Lakeland, FL; Roger M. Cryan, Fairfax, meeting will begin at approximately 8 VA; Ira Silvergleit, Alexandria, VA; a.m. and end at approximately 5:30 p.m. Foreign-Trade Zone 202: Application Lucy C. Meyring, Walden, CO.; William On May 7, the meeting will begin at for Expansion and Reorganization George Lapp, Omaha, NE.; Hugh approximately 8 a.m. and end at Amendment of Application Anslum Warren, Greenwood, MS. approximately 12:15 p.m. Notice is hereby given that the Professional Organizations—Walter J. ADDRESSES: The meeting will be held at application of the Board of Harbor Armbruster, Darien, IL; Ronald C. the Sheraton Reston Hotel, 11810 Commissioners of the City of Los Wimberley, Raleigh, NC. Sunrise Valley Drive, Reston, Virginia Angeles, grantee of FTZ 202, for 20191. The duties of the Committee are authority to expand and reorganize FTZ solely advisory. The Committee will FOR FURTHER INFORMATION CONTACT: Jeri 202 in the Los Angeles, California, area make recommendations to the Secretary Green, Committee Liaison Officer, (Doc. 54–2002, 67 FR 72643, 12/6/02), of Agriculture with regards to the Department of Commerce, U.S. Census has been amended to include a parcel agricultural statistics program of the Bureau, Room 3627, Federal Office (42 acres) within Proposed Site 20 at the National Agricultural Statistics Service Building 3, Washington, DC 20233, Park Mira Loma West, which was (NASS) and such other matters as it may telephone (301) 763–2070, TTY (301) inadvertently omitted. This increases deem advisable, or which the Secretary 457–2540. the total acreage at this site from 531 of Agriculture, Under Secretary for SUPPLEMENTARY INFORMATION: The CACs acres to 573 acres. The application Research, Education, and Economics, or on the African American Population, otherwise remains unchanged. the Administrator of NASS may request. the American Indian and Alaska Native Comments on the change may be The Advisory Committee meeting was Populations, the Asian Population, the submitted to the Foreign-Trade Zones held on February 24–25, 2003. All Hispanic Population, and the Native Board, U.S. Department of Commerce, meetings are open to the public. Hawaiian and Other Pacific Islander FCB-Suite 4100W, 1401 Constitution Committee members will be reimbursed Populations are comprised of nine Avenue, NW., Washington, DC 20230, for official travel expenses only. members each. The Committees provide by April 25, 2003.

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Dated: April 2, 2003. Investigation; Opportunity To Request Mixed ortho-acetylsalicylic acid Dennis Puccinelli, Administrative Review, 67 FR 77172 consists of ortho-acetylsalicylic acid Executive Secretary. (July 1, 2002). combined with other inactive [FR Doc. 03–8671 Filed 4–8–03; 8:45 am] On July 10 and 30, 2002, in substances such as starch, lactose, accordance with 19 CFR 351.213(b), two BILLING CODE 3510–DS–P cellulose, or coloring materials and/or producer/exporters of the subject other active substances. The presence of merchandise, Shandong Xinhua other active substances must be in DEPARTMENT OF COMMERCE Pharmaceutical Co., Ltd. (‘‘Shandong’’), concentrations less than that specified and Jilin Henghe Pharmaceutical for particular nonprescription drug International Trade Administration Company Ltd. (‘‘Jilin’’), respectively, combinations of aspirin and active requested that the Department conduct substances as published in the [A–570–853] an administrative review of this order. Handbook of Nonprescription Drugs, Bulk Aspirin from the People’s On July 31, 2002, Rhodia, Inc. eighth edition, American Republic of China: Preliminary Results (‘‘petitioner’’) also requested an Pharmaceutical Association. This of Antidumping Duty Administrative administrative review for Jilin and product is currently classifiable under Review Shandong. HTSUS subheading 3003.90.0000. On August 27, 2002, we published a Although the HTSUS subheadings are AGENCY: Import Administration, notice of initiation of the administrative provided for convenience and customs International Trade Administration, review. See Initiation of Antidumping purposes, the written description of the Department of Commerce. and Countervailing Duty Administrative merchandise under review is SUMMARY: The Department of Commerce Reviews and Requests for Revocations in dispositive. is currently conducting an Part, 67 FR 55000 (August 27, 2002). Separate Rates administrative review of the The period of this review (‘‘POR’’) is antidumping duty order on bulk aspirin July 1, 2001, through June 30, 2002. It is the Department’s standard policy from the People’s Republic of China. We issued questionnaires to Jilin and to assign all exporters of the The period of review is July 1, 2001, Shandong on September 24, 2002. We merchandise subject to review in through June 30, 2002. This review received responses to the questionnaires nonmarket economy (‘‘NME’’) countries covers imports of subject merchandise from Shandong and Jilin on November a single rate unless an exporter can from two producer/exporters. 22 and December 4, 2002, respectively. demonstrate an absence of government We preliminarily find that sales have On December 18, 2002, the control, both in law and in fact, with been made at not less than normal Department invited interested parties to respect to exports. To establish whether value. If these preliminary results are comment on surrogate country selection an exporter is sufficiently independent adopted in our final results of review, and to provide publicly available of government control to be entitled to we will instruct the Customs Service to information for valuing the factors of a separate rate, the Department analyzes liquidate entries of bulk aspirin production. We received responses from the exporter in light of the criteria produced and exported by Shandong the petitioner on January 22 and 27, established in the Final Determination Xinhua Pharmaceutical Co., Ltd., and 2003. Jilin provided surrogate value of Sales at Less Than Fair Value: Jilin Henghe Pharmaceutical Company information to the Department on Sparklers from the People’s Republic of Ltd., without regard to antidumping January 28 and March 13, 2003. China, 56 FR 20588 (May 6, 1991) duties. We issued supplemental (‘‘Sparklers’’), as amplified in the Final We invite interested parties to questionnaires to Jilin and Shandong Determination of Sales at Less Than comment on these preliminary results. between December 2002, and March Fair Value: Silicon Carbide from the We will issue the final results no later 2003. We received responses to the People’s Republic of China, 59 FR 22585 than 120 days from the date of supplemental questionnaires from both (May 2, 1994) (‘‘Silicon Carbide’’). publication of this notice. respondents from January through March 2003. Absence of De Jure Control EFFECTIVE DATE: April 9, 2003. Evidence supporting, though not Scope of the Order FOR FURTHER INFORMATION CONTACT: Julie requiring, a finding of de jure absence Santoboni or Blanche Ziv, Import The product covered by this review is of government control over export Administration, International Trade bulk acetylsalicylic acid, commonly activities includes: 1) an absence of Administration, U.S. Department of referred to as bulk aspirin, whether or restrictive stipulations associated with Commerce, 14th Street and Constitution not in pharmaceutical or compound an individual exporter’s business and Avenue, NW, Washington, DC 20230; form, not put up in dosage form (tablet, export licenses; 2) any legislative telephone: (202) 482–4194, or(202) 482– capsule, powders or similar form for enactments decentralizing control of 4207, respectively. direct human consumption). Bulk companies; and 3) any other formal SUPPLEMENTARY INFORMATION: aspirin may be imported in two forms, measures by the government as pure ortho-acetylsalicylic acid or as Background decentralizing control of companies. See mixed ortho-acetylsalicylic acid. Pure Sparklers, 56 FR at 20589. On July 11, 2000, the Department of ortho-acetylsalicylic acid can be either Commerce (‘‘Department’’) published an in crystal form or granulated into a fine Absence of De Facto Control antidumping order on bulk aspirin from powder (pharmaceutical form). This A de facto analysis of absence of the People’s Republic of China (‘‘PRC’’). product has the chemical formula government control over exports is See Notice of Antidumping Duty Order: C9H8O4. It is defined by the official based on four factors—whether the Bulk Aspirin from the People’s Republic monograph of the United States respondent: 1) sets its own export prices of China, 65 FR 42673 (July 11, 2000). Pharmacopoeia 23 (‘‘USP’’). It is independently of the government and On July 1, 2002, the Department currently classifiable under the other exporters; 2) retains the proceeds published in the Federal Register an Harmonized Tariff Schedule of the from its export sales and makes Antidumping or Countervailing Duty United States (‘‘HTSUS’’) subheading independent decisions regarding the Order, Finding, or Suspended 2918.22.1000. disposition of profits or financing of

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losses; 3) has the authority to negotiate below. Where the respondent used a determination that a foreign country is and sign contracts and other market-economy shipper for more than a NME country shall remain in effect agreements; and 4) has autonomy from an insignificant portion of its sales and until revoked by the administering the government regarding the selection paid for the shipping in a market- authority. The parties in this proceeding of management. See Silicon Carbide, 59 economy currency, we used the average have not contested such treatment in FR at 22587; see also Sparklers, 56 FR price paid by that producer/exporter to this review. Therefore, we treated the at 20589. value international freight for all of its PRC as a NME country for purposes of In the Notice of Final Determination sales. See Tapered Roller Bearings from this review and calculated NV by of Sales at Less Than Fair Value: Bulk the People’s Republic of China; Notice valuing the factors of production in a Aspirin from the People’s Republic of of Preliminary Results of 2000–2001 surrogate country. China 65 FR 33805 (May 25, 2000) Review, Partial Rescission of Review, Section 773(c)(4) of the Act requires (‘‘LTFV Investigation’’), we determined and Notice of Intent to Revoke Order, in the Department to value the NME that there was an absence of both de jure Part, 67 FR 45451 (July 9, 2002). Where producer’s factors of production, to the and de facto government control of each the respondent used a market-economy extent possible, in one or more market investigated company’s export activities marine insurance provider for more economy countries that: (1) are at a level and determined that each company than an insignificant portion of its sales of economic development comparable to warranted a company-specific dumping and paid for the insurance in a market- that of the NME, and (2) are significant margin. For the POR, Jilin and economy currency, we used the average producers of comparable merchandise. Shandong (collectively, ‘‘the price for marine insurance paid by that The Department has determined that respondents’’), responded to the producer/exporter for all of its sales. India, Pakistan, Indonesia, Sri Lanka, Department’s request for information To value brokerage and handling, we and the Philippines are countries regarding separate rates. We find that used the public version of a U.S. sales comparable to the PRC in terms of the evidence on the record is consistent listing reported in the questionnaire overall economic development. For a with the LTFV Investigation and the response submitted by Meltroll further discussion of our surrogate respondents continue to demonstrate an Engineering for Stainless Steel Bar from selection, see the December 12, 2002, absence of government control, both in India; Final Results of Antidumping Memorandum to Susan Kuhbach from law and in fact, with respect to their Duty Administrative Review and New Jeffrey May, ‘‘2nd Administrative exports, in accordance with the criteria Shipper Review and Partial Rescission Review of Bulk Aspirin from the identified in Sparklers and Silicon of Administrative Review, 65 FR 48965 People’s Republic of China’’ (‘‘Surrogate Carbide. (August 10, 2000). See the ‘‘Factors of Country Memo’’), which is on file in the Production Valuation Memorandum’’ Department’s Central Records Unit in Export Price and Constructed Export dated April 2, 2003 (‘‘FOP memo’’). Room B–099 of the main Department Price Because this information is not building. According to the available For certain sales made by the contemporaneous with the POR, we information on the record, we respondents to the United States, we adjusted the data to the POR by using determined that India is a significant used constructed export price (‘‘CEP’’) the Indian wholesale price index. producer of comparable merchandise. in accordance with section 772(b) of the In accordance with section 772(d)(1) None of the interested parties contested Tariff Act of 1930, as amended (‘‘the of the Act, for CEP sales we made the selection of India as the surrogate Act’’), because the first sale to an deductions for the following selling country. Accordingly, we calculated NV unaffiliated purchaser occurred after expenses that related to economic using Indian values for the PRC importation of the merchandise into the activity in the United States: credit producers’ factors of production. United States. For other sales made by expenses, indirect selling expenses, We obtained and relied upon publicly Jilin, we used export price (‘‘EP’’), in inventory carrying costs, and direct available information wherever accordance with section 772(a) of the selling expenses. Since neither possible. In many instances, we used Act, because the subject merchandise respondent had U.S. dollar the Monthly Statistics of the Foreign was sold outside the United States to denominated borrowings during the Trade of India; Volume II Imports unaffiliated purchasers in the United POR, we calculated credit expenses (‘‘MSFTI’’ ) to value factors of States prior to importation into the using the short-term interest rate during production, energy inputs and packing United States and constructed export the POR, as stated by the Federal materials. Consistent with the Final price methodology was not otherwise Reserve Board. In accordance with Determination of Sales at Less than Fair indicated. section 772(d)(3) of the Act, we Value: Certain Automotive Replacement We calculated EP based on the FOB deducted from the starting price an Glass Windshields From the People’s prices to unaffiliated purchasers. We amount for profit. Republic of China, 67 FR 6482 calculated CEP based on FOB and (February 12, 2002) and accompanying delivered prices from the respondents’ Normal Value Issues and Decision Memorandum, we U.S. subsidiaries to unaffiliated Section 773(c)(1) of the Act provides excluded import data reported in the customers. In accordance with section that the Department shall determine the MSFTI for Korea, Thailand and 772(c) of the Act, as appropriate, we normal value (‘‘NV’’) using a factors-of- Indonesia in our surrogate value deducted from the starting price foreign production methodology if: (1) the calculations. In addition to the MSFTI inland freight, international freight, merchandise is exported from a NME data, we used Indian domestic prices marine insurance, brokerage and country; and (2) the information does from Indian Chemical Weekly (‘‘ICW’’) handling, U.S. inland freight, U.S. not permit the calculation of NV using to value certain chemical inputs. See customs duties, and U.S. warehousing home-market prices, third-country FOP memo. expenses. We valued the deductions for prices, or constructed value (‘‘CV’’) foreign inland freight using surrogate under section 773(a) of the Act. Factors of Production data based on Indian freight costs. We The Department has treated the PRC In accordance with section 773(c) of selected India as the surrogate country as a NME country in all previous the Act, we calculated NV based on for the reasons explained in the antidumping cases. In accordance with factors of production reported by the ‘‘Normal Value’’ section of this notice, section 771(18)(C)(i) of the Act, any respondents. To calculate NV, the

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reported unit factor quantities were Certain inputs in the production of overhead and SG&A on the 2001–2002 multiplied by publicly available Indian bulk aspirin are considered business financial data of Alta Laboratories Ltd. surrogate values. proprietary information by the (‘‘Alta’’), an Indian producer of identical In selecting the surrogate values, we respondents and cannot be discussed in merchandise. Because Alta did not considered the quality, specificity, and this preliminary results notice. For a realize a profit during the financial complete analysis of surrogate values, period, we relied on the 2001–2002 contemporaneity of the data. As see the FOP memo. financial data of two other Indian appropriate, we adjusted input prices to Labor: We valued labor using the producers of comparable merchandise, make them delivered prices. For the method described in 19 CFR Andhra Sugars Ltd. (‘‘Andhra’’), and distances reported, we added to Indian 351.408(c)(3). Gujarat Organics Ltd. (‘‘Gujarat’’). CIF surrogate values a surrogate freight Electricity, Coal and Oil: Consistent Packing Materials: For packing cost using the reported distances from with our approach in Manganese Metal materials we used import values from the PRC port to the PRC factory, or from from the People’s Republic of China; the MSFTI. the domestic supplier to the factory. Final Results of Antidumping Duty Inland Freight Rates: To value truck This adjustment is in accordance with Administrative Review, 66 FR 15076 freight rates, we used an average of the United States Court of Appeals for (March 15, 2001), we calculated our trucking rates quoted in ICW. For rail the Federal Circuit’s decision in Sigma surrogate value for electricity based on freight, we based our calculation on Corp. v. United States, 117 F. 3d 1401, electricity rate data reported by the 1999 price quotes from Indian rail 1807–1908 (Fed.Cir. 1997). For those International Energy Agency (‘‘IEA’’), freight transporters. values not contemporaneous with the 4th quarter 2001. For coal, we used POR, we adjusted for inflation using the import values from the MSFTI. We Preliminary Results of the Review appropriate wholesale or producer price based the value of fuel oil on prices We preliminary find that the index published in the International reported by the IEA, 4th quarter 2001. following dumping margins exist for the Monetary Fund’s International Factory Overhead, SG&A, and Profit: period July 1, 2001, through June 30, Financial Statistics. We based our calculation of factory 2002:

Weighted-average Exporter/Manufacturer margin percentage

Shandong Xinhua Pharmaceutical Co., Ltd...... 0.00 Jilin Henghe Pharmaceutical Company Ltd...... 0.00

Assessment Rates and Cash Deposit be the rates for these firms shown above, notice. Rebuttal briefs and rebuttals to Requirements except that, for exporters with de written comments, which must be minimis rates (i.e., less than 0.5 percent) Pursuant to 19 CFR 351.212(b), the limited to issues raised in such briefs or no deposit will be required; (2) for Department calculates an assessment comments, may be filed not later than exporters previously found to be rate for each importer of the subject 37 days after the date of publication. entitled to a separate rate in a prior Parties who submit arguments are merchandise. Upon issuance of the final segment of the proceeding, and for results of this administrative review, if requested to submit with the argument which no review has been requested, (1) a statement of the issue, (2) a brief any importer-specific assessment rates the cash deposit rate will continue to be calculated in the final results are above summary of the argument, and (3) a the rate established for that exporter in table of authorities. de minimis (i.e., at or above 0.5 percent), the most recent segment of the the Department will issue appraisement proceeding; (3) for all other PRC The Department will issue a notice of instructions directly to the Customs exporters the cash deposit rate will be final results of this administrative Service to assess antidumping duties on 144.02 percent, the PRC country-wide review, including the results of its appropriate entries by applying the ad-valorem rate; and (4) for all other analysis of issues raised in any such assessment rate to the entered value of non-PRC exporters of subject written comments, within 120 days of the merchandise. For assessment merchandise from the PRC to the United publication of these preliminary results. purposes, we calculate importer-specific States, the cash deposit rate will be the Notification to Importers assessment rates for the subject rate applicable to the PRC exporter that merchandise by aggregating the supplied that non-PRC exporter. These This notice also serves as a dumping duties due for all U.S. sales to deposit requirements shall remain in preliminary reminder to importers of each importer and dividing the amount effect until publication of the final their responsibility under 19 CFR by the total entered value of the sales to results of the next administrative 351.402(f) to file a certificate regarding that importer. review. the reimbursement of antidumping The following cash deposit duties prior to liquidation of the requirements will be effective upon Public Comment relevant entries during this review publication of the final results of this Any interested party may request a period. Failure to comply with this administrative review for all shipments hearing within 30 days of publication of of bulk aspirin entered, or withdrawn this notice. See 19 CFR 351.310(c). Any requirement could result in the from warehouse, for consumption on or hearing, if requested, will be held Secretary’s presumption that after the publication date of the final approximately 44 days after the date of reimbursement of antidumping duties results of this administrative review, as publication of this notice, or the first occurred and the subsequent assessment provided for by section 751(a)(1) of the working day thereafter. Interested of double antidumping duties. Act: (1) for the companies named above, parties may submit case briefs and/or We are issuing and publishing these the cash deposit rates for exports to the written comments no later than 30 days results in accordance with sections United States by these companies will after the date of publication of this 751(a)(1) and 777(i)(1) of the Act.

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Dated: April 2, 2003. Certain Pasta From Italy, 61 FR 38544). duties at the rate that was applied at the Joseph A. Spetrini, On July 1, 2002, the Department time of entry. published a notice of ‘‘Opportunity to Acting Assistant Secretary for Import Scope of the Review Administration. Request Administrative Review’’ of this [FR Doc. 03–8670 Filed 4–8–03; 8:45 am] countervailing duty order for calendar Imports covered by this review are shipments of certain non-egg dry pasta BILLING CODE 3510–DS–S year 2001 (Notice of Opportunity to Request Administrative Review of in packages of five pounds (2.27 Antidumping or Countervailing Duty kilograms) or less, whether or not DEPARTMENT OF COMMERCE Order, Finding, or Suspended enriched or fortified or containing milk Investigation, 67 FR 44172). We or other optional ingredients such as International Trade Administration received review requests for five chopped vegetables, vegetable purees, milk, gluten, diastases, vitamins, [C–475–819] producers/exporters of Italian pasta. We initiated our review on August 27 and coloring and flavorings, and up to two Certain Pasta from Italy: Preliminary September 25, 2002 (Initiation of percent egg white (‘‘subject Results and Partial Rescission of Antidumping and Countervailing Duty merchandise’’). The pasta covered by Countervailing Duty Administrative Administrative Reviews and Requests this scope is typically sold in the retail Review for Revocation in Part, 67 FR 55000 and market, in fiberboard or cardboard Initiation of Antidumping and cartons, or polyethylene or AGENCY: Import Administration, Countervailing Duty Administrative polypropylene bags, of varying International Trade Administration, Reviews and Requests for Revocation in dimensions. Department of Commerce. Part and Deferral of Administrative Excluded from the scope of this ACTION: Notice of Preliminary Results Reviews, 67 FR 60210, respectively ).1 review are refrigerated, frozen, or and Partial Rescission of Countervailing On October 2, 2002, F. Divella, S.p.A. canned pastas, as well as all forms of Duty Administrative Review. and Labor S.r.L. withdrew their requests egg pasta, with the exception of non-egg for review, and on October 11, 2002, dry pasta containing up to two percent SUMMARY: The Department of Commerce Delverde, S.p.A. withdrew its request egg white. Also excluded are imports of is conducting an administrative review for review. We are rescinding this organic pasta from Italy that are of the countervailing duty order on administrative review for these three accompanied by the appropriate certain pasta from Italy for the period companies (see the ‘‘Partial Rescission’’ certificate issued by the Istituto January 1, 2001, through December 31, section, below). Mediterraneo di Certificazione, 2001. We preliminarily find that certain Bioagricoop S.c.r.l., QC&I International Thus, this administrative review of producers/exporters have received Services, Ecocert Italia, the Consorzio the order covers the following countervailable subsidies during the per il Controllo dei Prodotti Biologici, producers/exporters of the subject period of review. If the final results Associazione Italiana per l’Agricoltura merchandise: F.lli De Cecco di Filippo remain the same as these preliminary Biologica, or Codex S.r.L. Fara S. Martino S.p.A. (‘‘De Cecco’’) and results, we will instruct the U.S. The merchandise subject to review is Italian American Pasta Company, S.r.L. Customs Service to assess currently classifiable under item (‘‘IAPC’’). countervailing duties as detailed in the 1902.19.20 of the Harmonized Tariff On September 10, 2002, we issued ‘‘Preliminary Results of Review’’ section Schedule of the United States countervailing duty questionnaires to of this notice. (‘‘HTSUS’’). Although the HTSUS the Commission of the European Union As certain requests for review were subheading is provided for convenience (‘‘EC’’), the Government of Italy (‘‘GOI’’), withdrawn, we are rescinding this and customs purposes, the written and the producers/exporters which review for the following companies: description of the merchandise subject requested a review.2 We received Labor S.r.L., F. Divella, S.p.A., and to the order is dispositive. responses to our questionnaires in Delverde, S.p.A. October and November 2002, and issued Scope Rulings Interested parties are invited to a supplemental questionnaire to De comment on these preliminary results The Department has issued the Cecco in December 2002. The response (see the ‘‘Public Comment’’ section of following scope rulings to date: to the supplemental questionnaire was this notice). (1) On August 25, 1997, the received in December 2002. Department issued a scope ruling that EFFECTIVE DATE: April 9, 2003. multicolored pasta, imported in kitchen Partial Rescission FOR FURTHER INFORMATION CONTACT: display bottles of decorative glass that Craig Matney or Stephen Cho, AD/CVD As noted above, F. Divella, S.p.A., are sealed with cork or paraffin and Enforcement, Group I, Office 1, Import Labor S.r.L. and Delverde, S.p.A. bound with raffia, is excluded from the Administration, U.S. Department of withdrew their requests for review. scope of the countervailing duty order. Commerce, 14th Street and Constitution Because these withdrawals were timely (See August 25, 1997 memorandum Avenue, NW, Washington, DC 20230; filed, we are rescinding this review with from Edward Easton to Richard telephone (202) 482–1778 or 482–3798, respect to these companies (see 19 CFR Moreland, which is on file in CRU in respectively. 351.213(d)(1)). We will instruct the U.S. Room B–099 of the main Commerce SUPPLEMENTARY INFORMATION: Customs Service to liquidate any entries building.) from these companies during the period (2) On July 30, 1998, the Department Case History of review and to assess countervailing issued a scope ruling, finding that The Department of Commerce (the multipacks consisting of six one-pound ‘‘Department’’) published the 1 Italian American Pasta Company, S.r.L. was packages of pasta that are shrink- countervailing duty order on certain inadvertently omitted from the August 27, 2002 wrapped into a single package are pasta from Italy on July 24, 1996 (Notice initiation notice. within the scope of the countervailing 2 On October 25, 2002, we issued a second of Countervailing Duty Order and courtesy copy of the countervailing duty duty order. (See July 30, 1998 letter Amended Final Affirmative questionnaire to IAPC because it did not receive the from Susan H. Kuhbach, Acting Deputy Countervailing Duty Determination: first copy. Assistant Secretary for Import

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Administration, to Barbara P. Sidari, discount rate, when the company had used these company-specific AULs to Vice President, Joseph A. Sidari commercial loans in the same year as allocate any non-recurring subsidies Company, Inc., which is on file in the the government loan or grant. However, that were not countervailed in the CRU.) there were several instances where a investigation. However, for non- (3) On October 26, 1998, the company did not take out any loans recurring subsidies which had already Department self-initiated a scope which could be used as benchmarks/ been countervailed in the investigation, inquiry to determine whether a package discount rates in the years in which the the Department used the original weighing over five pounds as a result of government grants or loans under allocation period, i.e., 12 years, because allowable industry tolerances may be review were received. In these it was deemed neither reasonable nor within the scope of the countervailing instances, consistent with section practicable to reallocate those subsidies duty order. On May 24, 1999, we issued 351.505(a)(3)(ii) of the Department’s over a different time period. This a final scope ruling finding that, regulations, we used a national average methodology was consistent with our effective October 26, 1998, pasta in interest rate for a comparable approach in Certain Carbon Steel packages weighing or labeled up to (and commercial loan. Specifically, for years Products from Sweden; Final Results of including) five pounds four ounces is prior to 1995, we used the Bank of Italy Countervailing Duty Administrative within the scope of the countervailing reference rate, adjusted upward to Review, 62 FR 16549 (April 7, 1997). duty order. (See May 24, 1999 reflect the mark-up an Italian The third review of this order was memorandum from John Brinkmann to commercial bank would charge a subject to section 351.524(d)(2) of the Richard Moreland, which is on file in corporate customer, as the benchmark Department’s regulations. Under this the CRU.) interest rate for long-term loans and as regulation, the Department will use the the discount rate. For subsidies received AUL in the IRS tables as the allocation Period of Review in 1995 and later, we used the Italian period, unless a party can show that the The period of review (‘‘POR’’) for Bankers’ Association (‘‘ABI’’) interest IRS tables do not reasonably reflect the which we are measuring subsidies is rate, increased by the average spread company-specific AUL or the country- from January 1, 2001, through December charged by banks on loans to wide AUL for the industry. If a party 31, 2001. commercial customers plus an amount can show that either of these time periods differs from the AUL in the IRS Attribution of Subsidies for bank charges. Allocation Period: In the Final tables by one year or more, the De Cecco: De Cecco has responded on Affirmative Countervailing Duty Department will use the company- behalf of two members of the De Cecco Determination: Certain Pasta from Italy, specific AUL or the country-wide AUL Group: F.lli De Cecco di Filippo Fara 61 FR 30288, June 14, 1996, (‘‘Pasta for the industry as the allocation period. San Martino S.p.A. (‘‘Pastificio’’) and Investigation’’), the Department used as In Certain Pasta from Italy: Final Results Molino e Pastificio F.lli De Cecco S.p.A. the allocation period for non-recurring of Third Administrative Review, 66 FR (‘‘Pescara’’). Pastificio and Pescara subsidies the average useful life 11269, February 23, 2001 (‘‘Third manufacture pasta for sale in Italy and (‘‘AUL’’) of renewable physical assets in Review—Final Results’’), all subsidies the United States. Pastificio and Pescara the food-processing industry as received in the POR were assigned a 12- are directly or indirectly 100 percent- recorded in the Internal Revenue year allocation period, consistent with owned by members of the De Cecco Service’s 1977 Class Life Asset the IRS tables. family. Effective January 1, 1999, Depreciation Range System (‘‘the IRS In the fifth review, no respondent has Molino F.lli De Cecco di Filippo S.p.A. tables’’), i.e., 12 years. However, the contested the 12-year AUL in the IRS (‘‘Molino’’) a third member of the De U.S. Court of International Trade tables. Therefore, we are assigning a 12- Cecco Group on whose behalf De Cecco (‘‘CIT’’) ruled against this allocation year allocation period to non-recurring responded in the fourth administrative methodology for non-recurring subsidies received in the POR, as well review, was merged with Pastifico and subsidies (see British Steel plc v. United as any non-recurring subsidies received ceased to be a separate entity. The States, 879 F.Supp. 1254, 1289 (CIT in prior years by companies that were Department will continue to consider 1995) (‘‘British Steel I’’)). In accordance not included in previous reviews. countervailable any benefits received by with the CIT’s remand order, the Analysis of Programs Molino in past administrative review Department determined that the most periods and allocated over a period that reasonable method of deriving the I. Programs Preliminarily Determined to extends into or beyond the current POR. allocation period for non-recurring Confer Subsidies In accordance with section subsidies was a company-specific AUL 1. Law 64/86 Industrial Development of renewable physical assets. This 351.525(b)(6)(i) and (ii) of the Grants Department’s regulations, we are remand determination was affirmed by attributing subsidies received by the CIT on June 4, 1996 (see British Steel Law 64/86 provided assistance to Pastificio and Pescara to the combined plc v. United States, 929 F.Supp. 426, promote development in the sales of both. 439 (CIT 1996) (‘‘British Steel II’’)). Mezzogiorno (the south of Italy). Grants IAPC: IAPC has no affiliated Consistent with the ruling in British were awarded to companies companies located in Italy, and has Steel II, we developed company-specific constructing new plants or expanding or therefore responded only on its own AULs in the first and second modernizing existing plants. Pasta behalf. administrative reviews of this order (see companies were eligible for grants to Certain Pasta from Italy: Final Results of expand existing plants but not to Subsidies Valuation Information Countervailing Duty Administrative establish new plants because the market Benchmarks for Long-term Loans and Review, 63 FR 43905, 43906, August 17, for pasta was deemed to be close to Discount Rates: In accordance with 1998 (‘‘First Review—Final Results’’) saturated. Grants were made only after sections 351.505(a)(1) and 351.524(d)(3) and Certain Pasta from Italy: Final a private credit institution, chosen by of the Department’s regulations, we Results of the Second Countervailing the applicant, made a positive have used the amount the company Duty Administrative Review, 64 FR assessment of the project. (Loans were actually paid on comparable 44489, 44490–91, August 16, 1999 also provided under Law 64/86; see commercial loans as the benchmark/ (‘‘Second Review—Final Results’’). We below.) In 1992, the Italian Parliament

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abrogated Law 64/86 and replaced it the countervailable subsidy from those development grants under Law 488/92 with Law 488/92 (see below). This grants that were allocated over time. We as non-recurring. No new information decision became effective in 1993. divided the benefit received by De has been placed on the record of this However, companies whose projects Cecco in the POR by its total sales in the review that would cause us to depart had been approved prior to 1993 were POR. from this treatment. We expensed or authorized to continue receiving grants On this basis, we preliminarily allocated these grants according to the under Law 64/86 after 1993. determine the countervailable subsidy methodology applied to the Law 64/86 De Cecco received grants under Law from the Law 64/86 industrial industrial development grants discussed 64/86 which conferred a benefit during development grants to be 0.97 percent above. the POR. IAPC did not receive any ad valorem for De Cecco. We used the grant methodology as grants under this program. described in section 351.524(d) of the In Pasta Investigation, the Department 2. Law 488/92 Industrial Development Department’s regulations to calculate determined that these grants confer a Grants the subsidy for those grants that were countervailable subsidy within the In 1986, the European Union (‘‘EU’’) allocated over time. We divided the meaning of section 771(5) of the Tariff initiated an investigation of the GOI’s benefits received by De Cecco in the Act of 1930, as amended (‘‘the Act’’). regional subsidy practices. As a result of POR by its total sales in the POR. They are a direct transfer of funds from this investigation, the GOI changed the On this basis, we preliminarily the GOI bestowing a benefit in the regions eligible for regional subsidies to determine the countervailable subsidy amount of the grant. Also, these grants include depressed areas in central and from the Law 488/92 industrial were found to be regionally specific northern Italy in addition to the development grants to be 0.40 percent within the meaning of section Mezzogiorno. After this change, the ad valorem for De Cecco. 771(5A)(D)(iv) of the Act. In this review, areas eligible for regional subsidies are 3. Law 64/86 Industrial Development neither the GOI nor the responding the same as those classified as Objective Loans companies have provided new 1, Objective 2, and Objective 5(b) areas In addition to the industrial information which would warrant by the EU.3 The new policy was given development grants discussed above, reconsideration of our determination legislative form in Law 488/92 under Law 64/86 also provided reduced rate that these grants are countervailable which Italian companies in the eligible industrial development loans with subsidies. sectors (manufacturing, mining, and interest contributions paid by the GOI In Pasta Investigation, the Department certain business services) may apply for on loans taken by companies treated the industrial development industrial development grants. (Loans constructing new plants or expanding or grants as non-recurring. No new are not provided under Law 488/92.) modernizing existing plants in the information has been placed on the Law 488/92 grants are made only after Mezzogiorno. For the reasons discussed record of this review that would cause a preliminary examination by a bank above, pasta companies were eligible for us to depart from this treatment. Also, authorized by the Ministry of Industry. interest contributions to expand existing consistent with our treatment of these On the basis of the findings of this grants in the Third Review—Final plants, but not to establish new plants. preliminary examination, the Ministry Results, for companies which The interest rates on these loans were of Industry ranks the companies previously have been investigated or set at the reference rate with the GOI’s applying for grants. The ranking is reviewed, we have continued to expense interest contributions serving to reduce based on indicators such as the amount or allocate grants disbursed prior to this rate. Although Law 64/86 was of capital the company will contribute 1998 (the POR in the third review) abrogated in 1992 (effective 1993), from its own funds, the number of jobs according to the practice in place at the projects approved prior to 1993, were created, regional priorities, etc. Grants time of the investigation or review. (See authorized to receive interest subsidies are then made based on this ranking. Countervailing Duties (Proposed Rules), after 1993. De Cecco received grants under Law 54 FR 23366, 23384 (19 CFR De Cecco had Law 64/86 industrial 488/92 which conferred a benefit during 355.49(a)(3)) (May 31, 1989).) For grants development loans outstanding during the POR. IAPC did not receive any disbursed in 1998, 1999, 2000, and this the POR. IAPC did not have any loans grants under this program. POR, 2001, we have followed the under this program. methodology described in section Industrial development grants under In Pasta Investigation, the Department 351.524(b)(2) of our new countervailing Law 488/92 were found countervailable determined that the Law 64/86 loans duty regulations, which directs us to in Second Review—Final Results. The confer a countervailable subsidy within allocate over time those non-recurring grants are a direct transfer of funds from the meaning of section 771(5) of the Act. grants whose total authorized amount the GOI bestowing a benefit in the They are a direct transfer of funds from exceeds 0.5 percent of the recipient’s amount of the grant. Also, these grants the GOI providing a benefit in the sales in the year of authorization. Where were found to be regionally specific amount of the difference between the the total amount authorized is less than within the meaning of section benchmark interest rate and the interest 0.5 percent of the recipient’s sales in the 771(5A)(D)(iv) of the Act. In this review, rate paid by the companies after year of authorization, the benefit is neither the GOI nor the responding accounting for the GOI’s interest countervailed in full (i.e., ‘‘expensed’’) companies have provided new contributions. Also, these loans were in the year of receipt. We have also information which would warrant found to be regionally specific within applied the methodology described in reconsideration of our determination the meaning of section 771(5A)(D)(iv) of section 351.524(b)(2) of the that these grants are countervailable the Act. In this review, neither the GOI Department’s regulations to grants subsidies. nor the responding companies have approved prior to 1998 for companies In Second Review—Final Results, the provided new information which would that were not previously investigated or Department treated industrial warrant reconsideration of our reviewed. determination that these loans are a 3 Objective 1 covers projects located in We used the grant methodology underdeveloped regions; Objective 2 addresses countervailable subsidy. described in section 351.524(d) of the areas in industrial decline; and Objective 5 pertains In accordance with section Department’s regulations to calculate to agricultural areas. 351.505(c)(2) of the Department’s

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regulations, we calculated the benefit system for health care benefits, 351.503(d)(1) of the Department’s for the POR by computing the difference pensions, etc. The sgravi benefits are regulations). between the payments De Cecco made regulated by a complex set of laws and On this basis, we preliminarily on their Law 64/86 loans during the regulations, and are sometimes linked to determine the countervailable subsidy POR and the payments De Cecco would conditions such as creating more jobs. from the sgravi program to be 0.18 have made on a comparable commercial The benefits under some of these laws percent ad valorem for De Cecco. loan. We divided the benefit received by (e.g., Laws 183/76 and 449/97) are 6. IRAP Exemptions De Cecco by its total sales in the POR. available only to companies located in On this basis, we preliminarily the Mezzogiorno and other On January 1, 1998, the local income determine the countervailable subsidy disadvantaged regions. Other laws (e.g., tax (ILOR) was replaced with a new from the Law 64/86 industrial Laws 407/90 and 863/84) provide regional tax, the IRAP, as a result of development loans to be 0.41 percent ad benefits to companies all over Italy, but Legislative Decree 446 (December 15, valorem for De Cecco. the level of benefits is higher for 1997). Existing exemptions from the companies in the south than for ILOR continued under IRAP. In 4. Law 341/95 Interest Contributions on particular, income from production Debt Consolidation Loans companies in other parts of the country. The various laws identified as having facilities located in the Mezzogiorno Law 85/95 created the Fondo di provided sgravi benefits during the POR was exempt from tax for ten years. Garanzia aimed at improving the are: Law 183/76, Law 407/90, Law 863/ De Cecco claimed the IRAP tax financial structure of small- and 84, Law 449/97, and Law 448/98. (Laws exemption on its tax returns filed during medium-sized companies located in EU 449/97 and 448/98 are related and the POR. IAPC did not claim any Objective 1 areas (see Footnote 3 above). sometimes referred to jointly as ‘‘Sgravi exemption under this program. In Pasta Investigation, the Department Under Article 2 of Law 341/95, monies Capitario.’’) In this review, De Cecco determined that the ILOR tax exemption from the Fondo di Garanzia are used to received some form of sgravi benefits confers a countervailable subsidy within make interest contributions on debt during the POR. IAPC is not located in the meaning of section 771(5) of the Act. consolidation loans obtained by eligible the Mezzogiorno and, thus, did not The exemption represents revenue companies. The company first enters receive any countervailable subsidies foregone by the taxing authority and into a loan contract with a commercial under this program. confers a benefit in the amount of the bank. Then, the contract is submitted to In Pasta Investigation and subsequent the approving authority. After approval, tax savings to the recipient companies, reviews, the Department determined and the exemption was regionally the loan is made. that the various forms of social security De Cecco had a Law 341/95 debt specific within the meaning of section reductions and exemptions confer consolidation loan outstanding during 771(5A)(D)(iv) of the Act. In this review, countervailable subsidies within the the POR. IAPC did not have any loans neither the GOI nor the responding meaning of section 771(5) of the Act. under this program. companies have provided any We preliminarily determine that the They represent revenue foregone by the information to indicate that the interest contributions on this loan GOI bestowing a benefit in the amount substitution of the IRAP for the ILOR confer a countervailable subsidy within of the savings received by the would warrant reconsideration of our the meaning of section 771(5) of the Act. companies. Also, they were found to be determination that this tax exemption is They are a direct transfer of funds from regionally specific within the meaning a countervailable subsidy. the GOI providing a benefit in the of section 771(5A)(D)(iv) of the Act In accordance with sections amount of the interest contributions. because they were limited to companies 351.509(b) of the Department’s Also, these interest contributions are in the Mezzogiorno or because the regulations and our treatment of the regionally specific within the meaning higher levels of benefits were limited to ILOR tax exemption in Pasta of section 771(5A)(D)(iv) of the Act. companies in the Mezzogiorno. In this Investigation, we are calculating the Because De Cecco anticipated review, neither the GOI nor the countervailable subsidy by dividing De receiving the interest contributions responding companies provided new Cecco’s tax savings in the POR by its when it applied for the debt information which would warrant total sales in the POR. consolidation loan, we are calculating reconsideration of our determination On this basis, we preliminarily the amount of the subsidy as if this were that these tax savings are a determine the countervailable subsidy a reduced interest loan (see, section countervailable subsidy. from the IRAP tax exemption to be 0.08 351.508(c)(2) of the Department’s In accordance with section 351.524(c) percent ad valorem for De Cecco. regulations). Thus, we have divided the of the Department’s regulations and 7. Export Restitution Payments interest contributions received by De consistent with our methodology in Cecco in the POR by De Cecco’s total Pasta Investigation and in reviews The EU provides restitution payments sales in the POR. subsequent to Pasta Investigation, we to EU pasta exporters based on the On this basis, we preliminarily have treated social security reductions durum wheat content of their exported determine the countervailable subsidy and exemptions as recurring benefits. pasta products. The program is designed from interest contributions under Law To calculate the countervailable to compensate pasta producers for the 341/95 to be 0.01 percent ad valorem for subsidy, we divided De Cecco’s savings difference between EU prices and world De Cecco. in social security contributions during market prices for durum wheat. the POR by its total sales in the POR. In Generally, under this program, a 5. Social Security Reductions and those instances where the applicable restitution payment is available to any Exemptions—Sgravi law provided a higher level of benefits EU exporter of pasta products, Italian law allows companies, to companies based on their location, regardless of whether the pasta was particularly those located in the we divided the amount of the sgravi made with imported wheat or wheat Mezzogiorno, to use a variety of benefits that exceeded the amount grown within the EU. exemptions and reductions (‘‘sgravi’’) of available to companies in other parts of De Cecco received export restitution the payroll contributions that employers Italy by the recipient company’s total payments during the POR for shipments make to the Italian social security sales in the POR (see section of pasta to the United States. IAPC did

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not receive any payments under this II. Programs Preliminarily Determined to 19. Export Marketing Grants under Law program. Be Not Used 304/90 In Pasta Investigation, the Department We examined the following programs Preliminary Results of Review determined that export restitution and preliminarily determine that the payments confer a countervailable producers and/or exporters of the In accordance with 19 CFR subsidy within the meaning of section subject merchandise under review did 351.221(b)(4)(i), we calculated an 771(5) of the Act. These payments are a not apply for or receive benefits under individual subsidy rate for each direct transfer of funds from the EU these programs during the POR: producer/exporter covered by this bestowing a benefit in the amount of the 1. Law 64/86 VAT Reductions administrative review. For the period 2. Export Credits under Law 227/77 payment. The restitution payments were January 1, 2001 through December 31, 3. Capital Grants under Law 675/77 found to be specific because their 4. Retraining Grants under Law 675/77 2001, we preliminarily determine the receipt is contingent upon export 5. Interest Contributions on Bank Loans net subsidy rates for producers/ performance. In this review, the GOI, under Law 675/77 exporters under review to be those the EU, and the responding companies 6. Interest Grants Financed by IRI Bonds specified in the chart shown below. If have not provided new information 7. Preferential Financing for Export the final results of this review remain which would warrant reconsideration of Promotion under Law 394/81 the same as these preliminary results, our determination that export restitution 8. Urban Redevelopment under Law 181 the Department intends to instruct the payments are countervailable subsidies. 9. Grant Received Pursuant to the U.S. Customs Service (‘‘Customs’’) to Community Initiative Concerning the In Pasta Investigation, we treated the assess countervailing duties at these net Preparation of Enterprises for the Single subsidy rates. The Department will export restitution payments as recurring Market (‘‘PRISMA’’) issue appropriate assessment benefits. We have found no reason to 10. Law 183/76 Industrial Development depart from this treatment in the current Grants instructions directly to Customs within review. Therefore, to calculate the 11. Law 598/94 Interest Subsidies 15 days of publication of the final countervailable subsidy, we divided the 12. Law 236/93 Training Grants results of this review. The Department export restitution payments received by 13. European Regional Development also intends to instruct Customs to De Cecco in the POR for pasta Fund (ERDF) collect cash deposits of estimated shipments to the United States by the 14. Duty-Free Import Rights countervailing duties at these rates on value of De Cecco’s pasta exports to the 15. Remission of Taxes on Export Credit the f.o.b. value of all shipments of the United States in the POR. Insurance Under Article 33 of Law 227/ subject merchandise from the 77 On this basis, we preliminarily producers/exporters under review that 16. Law 1329/65 Interest Contributions are entered, or withdrawn from determine the countervailable subsidy (Sabatini Law) warehouse, for consumption on or after from the export restitution program to 17. European Social Fund (ESF) be 0.01 percent ad valorem for De 18. Corporate Income Tax (IRPEG) the date of publication of the final Cecco. Exemptions results of this administrative review.

Company Ad valorem rate

F.lli De Cecco di Filippo Fara San Martino S.p.A...... 2.06 percent Italian American Pasta Company, S.r.L...... 0.00 percent

The calculations will be disclosed to Amended Final Affirmative Interested parties may request a the interested parties in accordance Countervailing Duty Determination: hearing within 30 days after the date of with section 351.224(b) of the Certain Pasta from Italy, 61 FR 38544 publication of this notice. Any hearing, Department’s regulations. (July 24, 1996) or the company-specific if requested, will be held two days after For companies that were not named rate published in the most recent final the scheduled date for submission of in our notice initiating this results of an administrative review in rebuttal briefs. administrative review (except Barilla G. which a company participated. These rates shall apply to all non-reviewed The Department will publish a notice e R. F.lli S.p.A. and Gruppo Agricoltura of the final results of this administrative Sana S.r.L. which were excluded from companies until a review of a company assigned these rates is requested. review within 120 days from the the order in Pasta Investigation), the publication of these preliminary results. Department has directed Customs to Public Comment This administrative review and notice assess countervailing duties on all Interested parties may submit written entries between January 1, 2001 and are in accordance with sections arguments in case briefs within 30 days 751(a)(1) and 777(i) of the Act. December 31, 2001, at the rates in effect of the date of publication of this notice. at the time of entry. Rebuttal briefs, limited to issues raised Dated: April 2, 2003. For all non-reviewed firms, we will in case briefs, may be filed not later than Joseph A. Spetrini, instruct Customs to collect cash five days after the date of filing the case Acting Assistant Secretary for Import deposits of estimated countervailing briefs. Parties who submit briefs in this Administration. duties at the most recent company- proceeding should provide a summary [FR Doc. 03–8672 Filed 4–8–03 8:45 am] specific or all others rate applicable to of the arguments not to exceed five BILLING CODE 3510–DS–S the company. Accordingly, the cash pages and a table of statutes, deposit rates that will be applied to non- regulations, and cases cited. Copies of reviewed companies covered by this case briefs and rebuttal briefs must be order are those established in the Notice served on interested parties in of Countervailing Duty Order and accordance with 19 CFR 351.303(f).

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DEPARTMENT OF COMMERCE Permission for incidental takings may the nearest marine mammal pupping be granted if NMFS finds that the taking site (i.e., Rocky Point). National Oceanic and Atmospheric will have no more than a negligible Specified Activities Administration impact on the species or stock(s) and [I.D. 031203A] will not have an unmitigable adverse Delta Mariner off-loading operations impact on the availability of the species and associated cargo movements will Small Takes of Marine Mammals or stock(s) for subsistence uses and that occur a maximum of 3 times per year, Incidental to Specified Activities; the permissible methods of taking and beginning December, 2003. The Delta Harbor Activities at Vandenberg Air requirements pertaining to the Mariner is a 95.1–m (312–ft) long, 25.6– Force Base, CA monitoring and reporting of such taking m (84–ft) wide steel hull ocean-going are set forth. vessel capable of operating at a 2.4–m AGENCY: National Marine Fisheries NMFS has defined ‘‘negligible (8–ft) draft. For the first few visits to the Service (NMFS), National Oceanic and south VAFB harbor, tug boats will Atmospheric Administration (NOAA), impact’’ in 50 CFR 216.103 as: an impact resulting from the specified accompany the Delta Mariner. Sources Commerce. activity that cannot be reasonably expected of noise from the Delta Mariner include ACTION: Notice of receipt of application to, and is not reasonably likely to, adversely ventilating propellers used for and proposed authorization for affect the species or stock through effects on maneuvering into position and the cargo incidental harassment of marine annual rates of recruitment or survival. bay door when it becomes disengaged. mammals; request for comments. Subsection 101(a)(5)(D) of the MMPA Removal of the CBC from the Delta established an expedited process by which SUMMARY: NMFS has received a request citizens of the United States can apply for an Mariner requires use of an elevating from The Boeing Company (Boeing) for authorization to incidentally take small platform transporter. An additional an authorization to take small numbers numbers of marine mammals by harassment. source of noise with sound levels of marine mammals by harassment The MMPA defines ‘‘harassment’’ as: measured at a maximum of 82 dB A- incidental to harbor activities related to any act of pursuit, torment, or annoyance weighted (re 20 microPascals at 1–m) the Delta IV/Evolved Expendable which(i) has the potential to injure a marine 6.1 m (20 ft) from the engine exhaust Launch Vehicle (EELV) at south mammal or marine mammal stock in the wild (Acentech, 1998). Procedures require 2 [‘‘Level A harassment’’]; or (ii) has the Vandenberg Air Force Base, CA (VAFB). short (approximately 1/3 second) beeps potential to disturb a marine mammal or of the horn prior to starting the ignition. Under the Marine Mammal Protection marine mammal stock in the wild by causing Act (MMPA), NMFS is requesting disruption of behavioral patterns, including, At 60.9 m (200 ft) away, the sound level comments on its proposal to authorize but not limited to, migration, breathing, of the EPT horn ranged from 62–70 dB Boeing to take, by harassment, small nursing, breeding, feeding, or sheltering A-weighted. Containers containing numbers of several species of pinnipeds [‘‘Level B harassment’’]. flight hardware items will be towed off at south VAFB beginning in May 2003. Subsection 101(a)(5)(D) establishes a the Delta Mariner by a tractor tug that DATES: Comments and information must 45–day time limit for NMFS review of generates a sound level of be received no later than May 9, 2003. an application followed by a 30–day approximately 87 dB A-weighted at 15.2 ADDRESSES: Comments on the public notice and comment period on m (50 ft) while in operational mode. application should be addressed to any proposed authorizations for the Total time of Delta Mariner docking and Chief, Marine Mammal Conservation incidental harassment of small numbers cargo movement activities is estimated Division, Office of Protected Resources, of marine mammals. Within 45 days of at between 14 and 18 hours in good NMFS, 1315 East-West Highway, Silver the close of the comment period, NMFS weather. Spring, MD 20910–3225. Comments will must either issue or deny issuance of To accommodate the Delta Mariner, not be accepted if submitted via e-mail the authorization. the harbor will need to be dredged, removing approximately 3,000 to 5,000 or the Internet. A copy of the Summary of Request application (which includes the list of cubic yards of sediment per dredging. references used in this document) may On January 28, 2003, NMFS received Dredging will involve the use of heavy be obtained by writing to this address or an application from Boeing requesting equipment, including a clamshell by telephoning one of the contacts listed an authorization for the harassment of dredge, dredging crane, a small tug, here. small numbers of Pacific harbor seals dredging barge, dump trucks, and a skip FOR FURTHER INFORMATION CONTACT: (Phoca vitulina richardsi) and California loader. Measured sound levels from this Kimberly Skrupky, (301) 713–2322, ext. sea lions (Zalophus californianus) equipment are roughly equivalent to 163 or Christina Fahy, (562) 980–4023. incidental to harbor activities related to those estimated for the wharf SUPPLEMENTARY INFORMATION: the Delta IV/EELV, including: transport modification equipment: 61–81 dB A- vessel operations, cargo movement weighted at 76.2 m (250 ft). Dredge Background activities, harbor maintenance dredging, operations, from set-up to tear-down, Sections 101(a)(5)(A) and (D) of the and kelp habitat mitigation operations. would continue 24–hours a day for 3– MMPA (16 U.S.C. 1361 et seq.) direct In addition, northern fur seals 5 weeks. Sedimentation surveys have the Secretary of Commerce to allow, (Callorhinus ursinus) and northern shown that initial dredging indicates upon request, the incidental, but not elephant seals (Mirounga angustirostris) that maintenance dredging should be intentional taking of small numbers of may also be incidentally harassed but in required annually or twice per year, marine mammals by U.S. citizens who smaller numbers. An Incidental depending on the hardware delivery engage in a specified activity (other than Harassment Authorization (IHA) was schedule. commercial fishing) within a specified issued to Boeing on May 20, 2002 and A more detailed description of the geographical region if certain findings remains in effect until May 20, 2003 (see work proposed for 2003 is contained in are made and either regulations are FR 36151, May 23, 2002). The harbor the application which is available upon issued or, if the taking is limited to where activities will take place is on request (see ADDRESSES) and in the Final harassment, notice of a proposed south VAFB approximately 2.5 mi (4.02 US Air Force Environmental authorization is provided to the public km) south of Point Arguello, CA, and Assessment for Harbor Activities for review. approximately 1 mi (1.61 km) north of Associated with the Delta IV Program at

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Vandenberg Air Force Base (ENSR areas that are not used the rest of the August, large groups of 25 to over 300 International, 2001). year. The number of seals hauled out sea lions can be seen migrating north. begins to decrease in August after the Hauled out juvenile sea lions, as well as Habitat and Marine Mammals Affected molt is complete and reaches the lowest harbor seals, can be observed along the by the Activity number in late fall and early winter. South Base sites in July, August, and The marine mammal species likely to During the wharf modification September. Starving and exhausted be harassed incidental to harbor activity in June–July 2002, California subadult sea lions are also fairly activities at south VAFB are the Pacific sea lions were observed hauling out in common on the central California harbor seal and the California sea lion. small numbers. Although this is beaches during July and August. The most recent estimate of the Pacific considered to be an unusual occurrence Other marine mammal species are harbor seal population in California is and is possibly related to fish schooling known to occur infrequently along the 30,293 seals (Forney et al., 2000). From in the area, Boeing included sea lions in south VAFB coast during certain times 1979 to 1995, the California population their request. of the year and are unlikely to be increased at an estimated annual rate of California sea lions range from British harassed by Boeing’s activities. These 5.6 percent. The total population of Columbia to Mexico. The minimum U.S. four species are: the northern elephant harbor seals on VAFB is now estimated population estimate for California sea seal, the northern fur seal, Guadalupe to be 1,040 (775 on south VAFB) based lions is 109,854 individuals. Since 1983, fur seal (Arctocephalus townsendi), and on sighting surveys and telemetry data the population has grown at a rate of Steller sea lions (Eumetopias jubatus). (SRS Technologies, 2001). 5.0–6.2 percent annually. A 1985–1987 Northern elephant seals may occur on The daily haul-out behavior of harbor population survey indicated that most VAFB but do not haul out in the harbor seals along the south VAFB coastline is individuals on the Northern Channel area. Northern fur seals, Guadalupe fur dependent on time of day rather than Islands were on San Miguel Island, with seals, and Steller sea lions occur along tide height. The highest number of seals the population ranging from 2,235 to the California coast and Northern haul-out at south VAFB between 1100 over 17,000. The largest numbers of Channel Islands but are not likely to be through 1700 hours. In addition, haul- California sea lions in the VAFB vicinity found on VAFB. Descriptions of the out behavior at all sites seems to be occur at Lion Rock, 0.4 mi (0.64 km) biology and local distribution of these influenced by environmental factors southeast of Point Sal. This area is species can be found in the application such as high swell, tide height, and approximately 1.5 mi (2.41 km) north of as well as other sources such as Stewart wind. The combination of all three may the VAFB boundary. At least 100 sea and Yochem (1994, 1984), Forney et al. prevent seals from hauling out at most lions can be observed during any season (2000), Koski et al. (1998), Barlow et al. sites. The number of seals hauled out at at this site. The Point Arguello beaches (1993), Stewart and DeLong (1995), and any site can vary greatly from day to day and the rocky ledges of South Rocky Lowry et al. (1992). NMFS Stock based on environmental conditions. Point on south VAFB are haulout areas Assessments can be viewed at: http:// Harbor seals occasionally haul out at a that may be used by California sea lions. www.NMFS.noaa.gov/pr/PR2/ beach 76.2 m (250 ft) west of the south The maximum number of sea lions seen StocklAssessmentlProgram/ VAFB harbor and on rocks outside the hauling out during the recent wharf sars.html. Please refer to those harbor breakwater where Boeing will be modification was six, daily counts documents for information on these conducting Delta Mariner operations, ranging from 1 to 6 animals. species. cargo loading, dredging activities, and During the breeding season, most of reef enhancement activities. The California sea lions inhabit southern Potential Effects of Activities on Marine maximum number of seals present California and Mexico. Rookery sites in Mammals during past dredging of the harbor was southern California are limited to San Acoustic and visual stimuli generated 43, with an average of 21 seals sighted Miguel Island and to the southerly by the use of heavy equipment during per day. The harbor seal pupping site Channel Islands of San Nicolas, Santa the Delta Mariner and off-loading closest to south VAFB harbor is at Barbara, and San Clemente. Breeding operations, dredging, and kelp habitat Rocky Point, approximately 1.6 km (1 season begins in mid-May, occurring mitigation, as well as the increased mi) north. within 10 days of arrival at the presence of personnel, may cause short- Several factors affect the seasonal rookeries. Molting occurs gradually over term disturbance to harbor seals and haul-out behavior of harbor seals several months in the late summer and California sea lions hauled out along the including environmental conditions, fall. Because the molt is not beach and rocks in the vicinity of the reproduction, and molting. Harbor seal catastrophic, the sea lions can enter the south VAFB harbor. This disturbance numbers at VAFB begin to increase in water to feed. from acoustic and visual stimuli is the March during the pupping season Male California sea lions migrate principal means of marine mammal (March to June) as females spend more annually. In the spring they migrate taking associated with these activities. time on shore nursing pups. The southward to breeding rookeries in the Based on the measured sounds of number of hauled-out seals is at its Channel Islands and Mexico, then construction equipment, such as might highest during the molt which occurs migrate northward in the late summer be used during Boeing’s activities, from May through July. During the following breeding season. Females sound levels from all equipment drop to molting season, tagged harbor seals at appear to remain near the breeding a maximum level of 95 dB A-weighted VAFB increased their time spent on rookeries. The greatest population on within 50 ft (15.2 m) of the sources. In shore by 22.4 percent; however, all seals land occurs in September and October contrast, the ambient background noise continued to make daily trips to sea to during the post-breeding dispersal and measured approximately 76.2 m (250 ft) forage. Molting harbor seals entering the although many of the sea lions, from the beach was estimated to be 35– water because of a disturbance are not particularly juveniles and sub-adult and 48 dB A-weighted (Acentech, 1998; adversely affected in their ability to adult males, may move north away from EPA, 1971). molt and do not endure the Channel Islands. Pinnipeds sometimes show startle thermoregulatory stress. During pupping Small groups of sea lions have been reactions when exposed to sudden brief and molting season, harbor seals at the observed heading south along the VAFB sounds. An acoustic stimulus with south VAFB sites expand into haul-out coastline each year in April and May. In sudden onset (such as a sonic boom)

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may be analogous to a ‘‘looming’’ visual Numbers of Marine Mammals Expected to perform the reef enhancement in stimulus (Hayes and Saif, 1967), which to Be Harassed conjunction with the next maintenance may elicit flight away from the source Boeing estimates that a maximum of dredging event in order to minimize (Berrens et al., 1988). The onset of 43 harbor seals per day may be hauled cost and disturbances to animals. Noise operations by a loud sound source, such out near the south VAFB harbor, with a will be generated by the trucks as the elevating platform transporter daily average of 21 seals sighted when delivering the boulders to the harbor during CBC off-loading procedures, may tidal conditions were favorable during and during the operation of unloading elicit such a reaction. In addition, the previous dredging operations in the the boulders onto the barges and into movements of cranes and dredges may harbor. Considering the maximum and the water. represent a ‘‘looming’’ visual stimulus average number of seals hauled out per to seals hauled out in close proximity. Possible Effects of Activities on day, assuming that the seals may be Seals and sea lions exposed to such Subsistence Needs seen more than once, and using a acoustic and visual stimuli may either maximum total of 83 operating days in There are no subsistence uses for exhibit a startle response and/or leave 2003–2004, NMFS estimates that 145 to Pacific harbor seals in California waters, the haul-out site. 623 Pacific harbor seals may be subject and, thus, there are no anticipated According to the MMPA, if harbor effects on subsistence needs. activities disrupt the behavioral patterns to Level B harassment, as defined in 50 of harbor seals, these activities would CFR 216.3. Mitigation During wharf modification activities, take marine mammals by Level B To reduce the potential for harassment. In general, if the received a maximum of six California sea lions were seen hauling out in a single day, disturbance from visual and acoustic level of the noise stimulus exceeds both stimuli associated with the activities the background (ambient) noise level averaging between one and six sea lions each day. Based on its own calculations, Boeing will undertake the following and the auditory threshold of the marine mammal mitigating measures: animals, and especially if the stimulus NMFS believes that a total of 100 California sea lions, 10 northern (1) If activities occur during nighttime is novel to them, there may be a hours, lighting will be turned on before behavioral response. The probability elephant seals, and 5 northern fur seals may be subject to Level B harassment, dusk and left on the entire night to and degree of response will also depend avoid startling harbor seals at night. on the season, the group composition of as defined in 50 CFR 216.3, because they may be in nearby waters. (2) Activities should be initiated the pinnipeds, and the type of activity before dusk. in which they are engaged. Minor and Possible Effects of Activities on Marine (3) Construction noises must be kept brief responses, such as short-duration Mammal Habitat constant (i.e., not interrupted by periods startle or alert reactions, are not likely Boeing anticipates no loss or of quiet in excess of 30 minutes) while to result in disruption of behavioral harbor seals are present. patterns, such as migration, nursing, modification to the habitat used by (4) If activities cease for longer than breeding, feeding, or sheltering (i.e., Pacific harbor seals or California sea 30 minutes and harbor seals are in the Level B harassment) and would not lions that haul out near the south VAFB area, start-up of activities will include a cause serious injury or mortality to harbor. The harbor seal and sea lion gradual increase in noise levels. marine mammals. haul-out sites near south VAFB harbor On the other hand, startle and alert are not used as breeding, molting, or (5) A qualified marine mammal reactions accompanied by large-scale mating sites; therefore, it is not expected observer will visually monitor the movements, such as stampedes into the that the activities in the harbor will harbor seals on the beach adjacent to the water, could resul in injury of have any impact on the ability of Pacific harbor and on rocks for any flushing or individuals and would be considered a harbor seals or California sea lions in other behaviors as a result of Boeing’s take by harassment. In addition, such the area to reproduce. activities. If flushing results, then the large-scale movements by dense Boeing does anticipate unavoidable activities suspected of causing the seals aggregations of marine mammals or on kelp removal during dredging. This to enter the water will be delayed until pupping sites could potentially lead to habitat modification will not affect the the seals leave the area. takes by serious injury or death. marine mammal habitat. However, (6) The Delta Mariner and However, there is no potential for large- Boeing will mitigate for the removal of accompanying vessels will enter the scale movements leading to serious kelp habitat by placing 150 tons of rocky harbor only when the tide is too high for injury or mortality near the south VAFB substrate in a sandy area between the harbor seals to haul-out on the rocks harbor, because on average the number breakwater and the mooring dolphins to and the vessel will reduce speed 1.5 to of harbor seals hauled out near the site enhance an existing artificial reef. This 2 knots once the vessel is within 3 mi on average is less than 30 and there is type of mitigation was implemented by (4.83 km) of the harbor. The vessel will no pupping at nearby sites. The effects the Army Corps of Engineers following enter the harbor stern first, approaching of the harbor activities are expected to the 1984 and 1989 dredging. A lush kelp the wharf and dolphins at less than 0.75 be limited to short-term startle bed adjacent to the sandy area has knot. responses and localized behavioral developed from the efforts. The (7) As alternate dredge methods are changes. substrate will consist of approximately explored, the dredge contractor may For a further discussion of the 150 sharp-faced boulders, each with a introduce quieter techniques and anticipated effects of the planned diameter of about 2 ft (0.61 m) and each equipment. activities on harbor seals in the area, weighing about one ton. The boulders Monitoring please refer to the application and ENSR will be brought in by truck from an off- International’s 2001 Final site quarry and loaded by crane onto a As part of its 2002 application, Boeing Environmental Assessment. Information small barge at the wharf. The barge is provided a proposed monitoring plan in the application and referenced towed by a tugboat to a location along for assessing impacts to harbor seals sources is preliminarily adopted by the mooring dolphins from which a from the activities at south VAFB harbor NMFS as the best information available small barge-mounted crane can place and for determining when mitigation on this subject. them into the sandy area. Boeing plans measures should be employed.

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A NMFS-approved and VAFB- the VAFB harbor area during dredging have no more than a negligible impact designated biologically trained observer activities. on pinnipeds. will monitor the area for pinnipeds Due to the localized nature of these NEPA during all harbor activities. During activities, the number of marine nighttime activities, the harbor area will In accordance with section 6.01 of the mammals potentially taken by be illuminated, and the monitor will use National Oceanic and Atmospheric harassment are estimated to be small. In a night vision scope. Monitoring Administration (NOAA) Administrative addition, no take by injury and/or death activities will consist of: Order 216–6 (Environmental Review is anticipated, and the potential for (1) Conducting baseline observation of Procedures for Implementing the temporary or permanent hearing pinnipeds in the project area prior to National Environmental Policy Act, May impairment is unlikely given the low initiating project activities. 20, 1999), NMFS has determined based noise levels and will be entirely avoided (2) Conducting and recording on the content and analysis of Boeing’s through the incorporation of appropriate observations on pinnipeds in the request for an IHA, and the Final EA for mitigation measures. No rookeries, vicinity of the harbor for the duration of Harbor Activities Associated with the mating grounds, areas of concentrated the activity occurring when tides are Delta IV Program at VAFB (ENSRI, feeding, or other areas of special low enough for pinnipeds to haul out (2 2001) that the proposed issuance of this significance for marine mammals occur ft, 0.61 m, or less). IHA to Boeing by NMFS will not within or near south VAFB harbor. (3) Conducting post-construction individually or cumulatively result in a Information Solicited observations of pinniped haul-outs in significant impact on the quality of the the project area to determine whether human environment as defined in 40 NMFS requests interested persons to animals disturbed by the project CFR 1508.27. Impacts are not expected submit comments and information activities return to the haul-out. to be outside the scope of that EA. concerning this request (see ADDRESSES). Therefore, this action meets the Prior to submitting comments, NMFS Reporting definition of a ‘‘Categorical Exclusion’’ recommends readers review NMFS’ Boeing will notify NMFS 2 weeks as defined under NOAA Administrative responses to those comments on this prior to initiation of each activity. After Order 216–6 and is exempted from activity submitted previously (see 67 FR each activity is completed, Boeing will further environmental review. 63151, May 23, 2002). provide a report to NMFS within 90 Preliminary Conclusions Dated: April 2, 2003. days. This report will provide dates and Thomas C. Eagle, locations of specific activities, details of NMFS proposes to issue an IHA to Acting Director, Office of Protected seal behavioral observations, and Boeing for harbor activities related to Resources,National Marine Fisheries Service. estimates of the amount and nature of the Delta IV/EELV to take place at south [FR Doc. 03–8686 Filed 4–8–03; 8:45 am] all takes of seals by harassment or in VAFB over a 1–year period. The BILLING CODE 3510–22–S other ways. In addition, the report will proposal to issue this IHA is contingent include information on the weather, the upon adherence upon the previously tidal state, the horizontal visibility, and mentioned mitigation, monitoring, and DEPARTMENT OF COMMERCE the composition (species, gender, and reporting requirements. NMFS has age class) and locations of haul-out preliminarily determined that the National Telecommunications and group(s). In the unanticipated event that impact of harbor activities related to the Information Administration any cases of pinniped injury or Delta IV/EELV at VAFB, including: [Docket No. 001215353–3068–03] mortality are judged to result from these transport vessel operations, cargo activities, this will be reported to NMFS movement activities, harbor RIN 0660–ZA14 immediately. maintenance dredging, and kelp habitat PEACESAT Closing Date mitigation will result in the harassment Consultation of only small numbers of Pacific harbor AGENCY: National Telecommunications Under section 7 of the Endangered seals and California sea lions; would and Information Administration (NTIA), Species Act, NMFS has begun have no more negligible impact on these Commerce. consultation on the proposed issuance marine mammal stocks,; and would not ACTION: Notice of closing date for of an IHA. Consultation will be have an unmitigable adverse impact on solicitation of PEACESAT applications. concluded prior to the issuance of an the availability of marine mammal IHA. stocks for subsistence uses. While SUMMARY: The National Although sea otters are not within the behavioral modifications may be made Telecommunications and Information jurisdiction of NMFS, VAFB formally by these species to avoid the resultant Administration (NTIA), U.S. consulted with U.S. Fish and Wildlife acoustic and visual stimuli, there is no Department of Commerce, announces Service (FWS) in 1998 on the possible potential for large-scale movements, the solicitation of applications for a take of southern sea otters during such as stampedes, since harbor seals grant for the Pan-Pacific Education and Boeing’s harbor activities at south and sea lions haul out in such small Communications Experiments by VAFB. A Biological Opinion was issued numbers near the site (maximum Satellite (PEACESAT) Program. Projects in August 2001. Southern sea otters number of harbor seals hauled out in funded pursuant to this Notice are were discussed in these documents and one day estimated at 43 seals, averaging intended to support the PEACESAT FWS recognized that Boeing will restore at 21 seals per day, maximum number Program’s acquisition of satellite sea otter habitat (i.e., kelp beds) in the of sea lions hauled out in one day is communications to service Pacific Basin vicinity of the harbor to replace kelp estimated at six sea lions). The effects of communities and to manage the destroyed during dredging. In addition, the harbor activities are expected to be operations of this network. Applications the FWS noting that VAFB has limited to short-term and localized for the PEACESAT Program grant will committed to a southern sea otter behavioral changes. Therefore, NMFS compete for funds from the Public monitoring program designed to detect preliminarily concludes that the effects Broadcasting, Facilities, Planning and the presence and possible disturbance at of the planned demolition activities will Construction Funds account. The

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deadline for receipt of television Program was authorized under Pub. L. II. Catalog of Federal Domestic applications for the Public 100–584 (102 Stat. 2970) and also Pub. Assistance Number Telecommunications Facilities Program L. 101–555 (104 Stat. 2758) to acquire 11.550 Public Telecommunications (PTFP), which is also funded from this satellite communications services to Facilities Program. account, was November 19, 2002. The provide educational, medical, and PTFP deadline was published in the cultural needs of Pacific Basin III. Administrative Requirements; Federal Register on October 17, 2002 communities. The PEACESAT Program Scope of Project and Eligible Costs; (67 FR 64297). NTIA also published in has been operational since 1971 and has Evaluation and Selection Process the March 5, 2003 Federal Register (68 received funding from NTIA for support Public Law Number 108–7 was FR 10610) that the deadline for receipt of the project since 1988. enacted February 20, 2003. Public Law of radio and nonbroadcast applications Public Law 108–7 appropriated $43.5 No. 108–7 appropriated funds to the for the PTFP, which are also funded million for this account to be awarded Public Broadcasting, Facilities, Planning from this account, will be April 4, 2003. for Public Telecommunications and Construction Funds account. DATE: Applications for the PEACESAT Facilities Program (PTFP) grants and for Pursuant to Public Law 106–113 the Program grant must be received on or PEACESAT Program grants. Solicitation Pan-Pacific Education and before 5 p.m. EDT on May 9, 2003. notices for the PTFP Program were Communications Experiments by Applicants sending applications by the published in the Federal Register on Satellite (PEACESAT) Program can United States Postal Service or October 17, 2002 (67 FR 64297) for compete for funds from the Public commercial delivery services must television applications and on March 5, Broadcasting, Facilities, Planning and ensure that the carrier will be able to 2003 (68 FR 10610) for radio and Construction Funds account. Funds guarantee delivery of the application by nonbroadcast applications. Applications appropriated to the Public Broadcasting, the closing date and time. NTIA will not submitted in response to this Facilities, Planning and Construction accept mail delivery of applications solicitation for PEACESAT applications Funds account do not carry fiscal year posted on the closing date or later and are not subject to the requirements of limitations. A notice published on received after the above deadline. the October 17, 2002 or March 5, 2003 March 16, 1999 set forth the scope of the However, if an application is received Notices and are exempt from the PTFP project and eligible costs, and a after the closing date due to carrier regulations at 15 CFR part 2301. NTIA description of the evaluation and error, when the carrier accepted the anticipates making a single award for selection process for applications for the package with a guarantee for delivery by approximately $500,000 for the PEACESAT Program. Since funds for the closing date, NTIA will, upon PEACESAT Program in FY2003. the Public Broadcasting, Facilities, receipt of proper documentation, Planning and Construction Funds NTIA requests that each applicant for account are available without fiscal year consider the application as having been a PEACESAT Program grant supply one received by the deadline. limitations, the administrative (1) original signed application and five requirements; scope of project and ADDRESSES: To submit completed (5) copies, unless doing so would applications, or send any other eligible costs criteria; and evaluation present a financial hardship, in which and selection process criteria set forth in correspondence, write to: NTIA/PTFP, case the applicant may submit one(1) Room H–4625, U.S. Department of the March 16, 1999 notice apply to the original and two (2) copies of the 1999 PEACESAT program and to all Commerce, 1401 Constitution Avenue, application. The application form NW., Washington, DC 20230. subsequent years. A copy of the March consists of the Standard Form 424 16,1999 Notice is available to potential Applicants submitting applications by Application for Federal Assistance; hand delivery are notified that, due to applicants from NTIA at the address Standard Form 424A Budget listed in the Address section and is also security procedures in the Department Information-Non-Construction of Commerce, all packages must be available on the Internet at http:// Programs; Standard Form 424 B, www.ntia.doc.gov/otiahome/ cleared by the Department’s security Assurances; Standard Form CD–511 office. The security office is located in peacesat.html. If, in the future, NTIA Certification; and Standard Form LLL, changes the administrative Room 1874, located at Entrance No. 10 Disclosure of Lobbying Activities (if requirements; the scope of project and on the 15th St. NW. side of the building. applicable). These requirements are eligible costs criteria; or the evaluation FOR FURTHER INFORMATION CONTACT: subject to the Paperwork Reduction Act and selection process criteria, a new William Cooperman, Director, Public and have been approved by the Office notice will be published containing the Broadcasting Division, telephone: (202) of Management and Budget under new criteria and requirements. 482–5802; fax: (202) 482–2156. control numbers 0348–0043, 0348–0044, Unsuccessful applications will be SUPPLEMENTARY INFORMATION: 0348–0040 and 0348–0046. destroyed. I. Application Forms and Requirements Eligible applicants will include any Applicants for grants for the for-profit or non-profit organization, PEACESAT Program must file their Funding for the PEACESAT Program public or private entity, other than an applications on or before May 9, 2003. is provided pursuant to Public Law agency or division of the Federal NTIA anticipates making the grant 108–7, ‘‘The Consolidated government. Individuals are not eligible award by September 30, 2003. NTIA Appropriations Resolution, 2003,’’ and to apply for the PEACESAT Program shall not be liable for any proposal Public Law 106–113, ‘‘The Consolidated funds. preparation costs. Appropriations Act, Fiscal Year 2000.’’ Public Law 106–113 provides ‘‘That, Grant recipients under this program IV. Project Period hereafter, notwithstanding any other will not be required to provide matching Any project awarded pursuant to this provision of law, the Pan-Pacific funds toward the total project cost. notice will be for a one-year period. Education and Communications The costs allowable under this Notice Experiments by Satellite (PEACESAT) are not subject to the limitation on costs V. Other Requirements Program is eligible to compete for Public contained in the October 17, 2002 or The Department of Commerce Pre- Broadcasting Facilities, Planning and March 5, 2003 Notices regarding the Award Notification of Requirements for Construction funds.’’ The PEACESAT PTFP Program. Grants and Cooperative Agreements

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contained in the Federal Register notice Form Number(s): PTO–158, PTO– Affected Public: Individuals or of October 1, 2001 (66 FR 49917), as 158A, PTO–275, PTO–107A, PTO–1209, households; business or other for-profit; amended by the Federal Register notice PTO–2126. the Federal Government; and State, published on October 30, 2002 (67 FR Agency Approval Number: 0651– Local or Tribal Governments. 66109), is applicable to this solicitation. 0012. Frequency: On occasion. Notwithstanding any other provision Type of Request: Revision of a Respondent’s Obligation: Required to of law, no person is required to respond currently approved collection. obtain or retain benefits. to, nor shall any person be subject to a Burden: 58,745 hours annually. OMB Desk Officer: David Rostker, penalty for failure to comply with, a Number of Respondents: 64,142 (202) 395–3897. collection of information subject to the responses per year. Copies of the above information requirements of the Paperwork Avg. Hours Per Response: The USPTO collection proposal can be obtained by Reduction Act (PRA),unless that estimates that it will take the public calling or writing Susan K. Brown, collection displays a currently valid approximately 30 minutes (0.5 hours) to Records Officer, Office of Data Office of Management and Budget complete either an application or Architecture and Services, Data control number. registration to practice before the Administration Division, (703) 308– 7400, USPTO, Suite 310, 2231 Crystal VI. Executive Order 12866 USPTO, or an application for a foreign resident to practice before the USPTO Drive, Washington, DC 20231, or by e- It has been determined that this notice and, depending upon the complexity of mail at [email protected]. is ‘‘not significant’’ for the purpose of the situation, to gather, prepare and Written comments and Executive Order 12866. submit the application. It is estimated to recommendations for the proposed information collection should be sent on VII. Executive Order 13132 take 20 minutes (0.33 hours) to complete undertakings under 37 CFR or before May 9, 2003 to David Rostker, It has been determined that this notice 10.10(b); 10 minutes (0.17 hours) to OMB Desk Officer, Room 10202, New does not contain policies with complete data sheets; 5 minutes (0.08 Executive Office Building, Washington, Federalism implications as that term is hours) to complete the oath or DC 20503. defined in EO 13132. affirmation, and the request for a paper Dated: April 1, 2003. VIII. Regulatory Flexibility Analysis copy of the continuing training program Susan K. Brown, Because notice and comment are not and furnished narrative; 45 minutes Records Officer, USPTO, Office of Data required under 5 U.S.C. 553, or any (0.75 hours) to complete the petition for Architecture and Services, Data Administration Division. other law, for this notice related to waiver of regulations; and 90 minutes public property, loans, grants, benefits (1.5 hours) to complete the written [FR Doc. 03–8602 Filed 4–8–03; 8:45 am] or contracts, 5 U.S.C. 553(a), a request for reconsideration of BILLING CODE 3510–16–P Regulatory Flexibility Analysis is not disapproval notice of application and required and has not been prepared for the petition for reinstatement to this notice. 5 U.S.C. 601 et seq. practice. It is estimated to take 2 hours DEPARTMENT OF DEFENSE and 10 minutes (2.17 hours) for the Authority: Pub. L. 108–7, ‘‘The annual practitioner registration/ Office of the Secretary Consolidated Appropriations Resolution, continuing training program—ten 2003,’’ and Public Law 106–113, ‘‘The minutes (0.17 hours) to fill out the form Submission for OMB Review; Consolidated Appropriations Act, Fiscal Year Comment Request 2000.’’ and an average of 2 hours (2.0 hours) to complete the continuing training ACTION: Notice. Dr. Bernadette McGuire-Rivera, examination online. It is estimated to Associate Administrator, Office of take 2 hours and 5 minutes (2.08 hours) The Department of Defense has Telecommunications and Information for the paper-based version of the submitted to OMB for clearance, the Applications. annual practitioner registration/ following proposal for collection of [FR Doc. 03–8678 Filed 4–8–03; 8:45 am] continuing training program-five information under the provisions of the BILLING CODE 3510–60–P minutes (0.08 hours) to request the Paperwork Reduction Act (44 U.S.C. materials and an average of 2 hours (2.0 Chapter 35). hours) to complete the continuing PATENT AND TRADEMARK OFFICE DATES: Consideration will be given to all training examination on paper. These comments received by May 9, 2003. times include time to gather the Submission for OMB Review; Title, Form Number, and OMB necessary information, prepare, and Comment Request Number: International Military Student submit the forms and requirements in Information; DD Form 2339; OMB The United States Patent and this collection. Number 0702–0064. Trademark Office (USPTO) has Needs and Uses: This information is Type of Request: Reinstatement. submitted to the Office of Management required by 35 U.S.C. 2(b)(2)(d), Number of Respondents: 3,000. and Budget (OMB) for clearance the administered by the USPTO through 37 Responses Per Respondent: 1. following proposal for collection of CFR 10.5–10.19. The information is Annual Responses: 3000. information under the provisions of the used by the Director of the Office of Average Burden Per Resonse: 15 Paperwork Reduction Act (44 U.S.C. Enrollment and Discipline (OED) to minutes (average). Chapter 35). determine if the applicant for Annual Burden Hours: 750 hours. AGENCY: United States Patent and registration is of good moral character Needs and Uses: The DD Form 2399 Trademark Office (USPTO). and repute; has the necessary legal, is required in support of international Title: Admittance to Practice and scientific, and technical qualifications; military students who are attending Roster of Registered Patent Attorneys and is otherwise competent to advise training in the United States with the and Agents Admitted to Practice Before and assist applicants in the presentation Military Departments as part of the the United States Patent and Trademark and prosecution of applications for security assistance training program. Office (USPTO). patent grants. The DD Form 2399 is utilized in

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gathering information on the signed by both the secondary institution Leesburg Pike, Falls Church, Virginia international student prior to his/her and the U.S. Government. This form 22041–3206, (703) 681–5611, extension arrival in the United States in order that provides information on the schools’s 6824. civilian and military sponsors can be facilities and states specific conditions SUPPLEMENTARY INFORMATION: In assigned to assist the student during if a NDCC unit is placed at the accordance with 45 CFR his/her training. institution. The data provided on the 164.512(K)(1)(i), the Department of Affected Public: Individuals or application is used to determine which Defense has established in DoD Households. school(s) will be selected. 6025.18–R, paragraph C7.11.1, the Frequency: On Occasion. Affected Public: State, Local, or Tribal following provisions. Respondent’s Obligation: Voluntary. Government; Not-For-Profit Institutions. 1. General Rule. A covered entity OMB Desk Officer: Ms. Jacqueline Frequency: On Occasion. (including a covered entity not part of Zeiher. Respondent’s Obligation: Required to or affiliated with the Department of Written comments and obtain or retain benefits. Defense) may use and disclose the OMB Desk Officer: Ms. Jacqueline recommendations on the proposed protected health information of Zeiher. information collection should be sent to individuals who are Armed Forces Ms. Zeiher at the Office of Management Written comments and recommendations on the proposed personnel for activities deemed and Budget, Desk Officer for DoD, Room necessary by appropriate military 10236, New Executive Office Building, information collection should be sent to Ms. Zeiher at the Office of Management command authorities to assure the Washington, DC 20503. proper execution of the military DoD Clearance Officer: Mr. Robert and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, mission. Cushing. 2. Appropriate Military Command Written requests for copies of the Washington, DC 20503. DOD Clearance Officer: Mr. Robert Authorities. For purposes of paragraph information collection proposal should 1, appropriate Military Command be sent to Mr. Cushing, WHS/DIOR, Cushing. Written requests for copies of the authorities are the following: 1215 Jefferson Davis Highway, Suite 2.1. All Commanders who exercise 1204, Arlington, VA 22202–4302. information collection proposal should be sent to Mr. Cushing, WHS/DIOR, authority over an individual who is a Dated: April 3, 2003. 1215 Jefferson Davis Highway, Suite member of the Armed Forces, or other Patricia L. Toppings, 1204, Arlington, VA 22202–4302. person designated by such a Alternate OSD Federal Register, Liaison Commander to receive protected health Dated: April 2, 2003. Officer Department of Defense. information in order to carry out an Patricia L. Toppings, [FR Doc. 03–8620 Filed 4–8–03; 8:45 am] activity under the authority of the Alternate OSD Federal Register Liaison BILLING CODE 5001–08–M Commander. Officer, Department of Defense. 2.2 The Secretary of Defense, the [FR Doc. 03–8621 Filed 4–8–03; 8:45 am] Secretary of the Military Department DEPARTMENT OF DEFENSE BILLING CODE 5001–08–M responsible for the Armed Force for which the individual is a member, or Office of the Secretary the Secretary of Homeland Security DEPARTMENT OF DEFENSE when a member of the Coast Guard Submission for OMB Review; Office of the Secretary when it is not operating as a service in Comment Request the Department of the Navy. ACTION: Notice DoD Health Information Privacy 2.3. Any official delegated authority Program by a Secretary listed in subparagraph 2.2 The Department of Defense has to take an action designed to ensure the submitted to OMB for clearance, the AGENCY: Office of the Secretary, DoD. proper execution of the military following proposal for collection of ACTION: Notice. mission. information under the provisions of the 3. Purposes for Which the Protected SUMMARY: Under 45 CFR part 164, Paperwork Reduction Act (44 U.S.C. Health Information May Be Uses or ‘‘Standards for Privacy of Individually Chapter 35). Disclosed. For purposes of paragraph 1, Identifiable Health Information’’ and DATES: Consideration will be given to all the purposes for which any and all of DoD 6025.18–R, ‘‘DoD Health the protection health information of an comments received by May 9, 2003. Information Privacy Regulation’’ Title, Form Number, and OMB individual who is a member of the provisions are made to allow Armed Forces may be used or disclosed Number: Application and Agreement for appropriate uses and disclosures of Establishment of a National Defense are the following: protected health information concerning 3.1. To determine the member’s Cadet Corps Unit; DA Form 3126–1; members of the armed forces to assure OMB Number 0702–0110. fitness for duty, including but not the proper execution of the military limited to the member’s compliance Type of Request: Reinstatement. mission, provided that the Department Number of Respondents: 35. with standards and all activities carried of Defense publishes in the Federal out under the authority of DoD Directive Responses Per Respondent: 1. Register a notice describing Annual Responses: 35. 1308.1, ‘‘DoD Physical Fitness and Body implementation of these provisions. Average Burden Per Response: 60 Fat Program,’’ July 20, 1995, DoD This notice implements those minutes (average). Instruction 1332.38, ‘‘Physical Disability provisions. Annual burden Hours: 35 hours. Evaluation,’’ November 14, 1996, DoD Needs and Uses: Educational EFFECTIVE DATES: This notice is effective Directive 5210.42, ‘‘Nuclear Weapons Institutions desiring to host a National April 14, 2003. Personnel Reliability Program (PRP),’’ Defense Cadet Corps Unit (NDCC) may FOR FURTHER INFORMATION CONTACT: CDR January 8, 2001, and similar apply by using a DA Form 3126–1. The Sam Jenkins, Health Information requirements. DA Form 3126–1 documents the Privacy Officer, TRICARE Management 3.2. To determine the member’s agreement and becomes a contract Activity, Skyline 5, Suite 810, 5111 fitness to perform any particular

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mission, assignment, order, or duty, Agency Responsibilities for Maintaining ROUTINE USES OF RECORDS MAINTAINED IN THE including compliance with any actions Records About Individuals,’ dated SYSTEM, INCLUDING CATEGORIES OF USERS AND required as a precondition to February 8, 1996 (February 20, 1996, 61 THE PURPOSES OF SUCH USES: performance of such mission, FR 6427). In addition to those disclosures generally permitted under 5 U.S.C. assignment, order, or duty. Dated: April 2, 2003. 552a(b) of the Privacy Act, these records 3.3. To carry our activities under the Patricia L. Toppings, authority of DoD Directive 6490.2, or information contained therein may Alternate OSD Federal Register Liaison specifically be disclosed outside the ‘‘Joint Medical Surveillance,’’ August Officer, Department of Defense. 30, 1997. DoD as a routine use pursuant to 5 3.4. To report on casualties in any DWHS 48 U.S.C. 552a(b)(3) as follows: military operation or activity in The DoD ‘Blanket Routine Uses’ set accordance with applicable military SYSTEM NAME: forth at the beginning of OSD’s compilation of systems of records regulations or procedures. Biographies of OSD Officials. 3.5. To carry out any other activity notices applies to this system. necessary to the proper execution of the SYSTEM LOCATION: POLICIES AND PRACTICES FOR STORING, mission of the Armed Forces. Office of the Secretary of Defense, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: Dated: April 2, 2003. Chief Information Office, ATTN: Linda Bynum, Biographies of OSD Officials, 1950 STORAGE: Alternate Federal Register Liaison Officer, Defense Pentagon, Room BG849, Records are stored on electronic Department of Defense. Washington, DC 203301–1950. media. [FR Doc. 03–8624 Filed 4–8–03; 8:45 am] RETRIEVABILITY: BILLING CODE 5001–08–M CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM: Retrieved alphabetically by the individual’s full name. Military and civilian personnel DEPARTMENT OF DEFENSE currently occupying professional SAFEGUARDS: positions within the offices of the Office Office of the Secretary Records are maintained in a secure, of the Secretary of Defense (OSD). A limited access or monitored area. Privacy Act of 1974; System of professional position is one occupied by Physical entry by unauthorized persons Records a civilian in the grade of GS 13 and is restricted by the use of locks, guards, above or a military officer in the grade or administrative procedures. Access to AGENCY: Office of the Secretary, DoD. of major/lieutenant commander and personal information is limited to those ACTION: Notice to Add Systems of above; employees in developmental who require the records to perform their Records. programs such as Presidential official duties. All personnel whose Management Interns and Defense official duties require access to the SUMMARY: The Office of the Secretary of Fellows; and employees from other information are trained in the proper Defense proposes to add a system of organizations serving as detailees and safeguarding and use of the information. records notice to its inventory of record serving under intergovernmental systems subject to the Privacy Act of personnel act agreements who are RETENTION AND DISPOSAL: 1974 (5 U.S.C. 552a), as amended. integrated within the OSD workforce. Records are deleted when the DATES: The changes will be effective on individual concerned departs the OSD May 9, 2003 unless comments are CATEGORIES OF RECORDS IN THE SYSTEM: staff. received that would result in a contrary Basic biographical information on SYSTEM MANAGER(S) AND ADDRESS: determination. individual OSD staff to include full Chief, Personnel Systems and ADDRESSES: Send comments to OSD name of the individual; rank/grade; title; Evaluation Division, Washington Privacy Act Coordinator, Records organization/office; current assignments Headquarters Services, Personnel and Management Section, Washington within OSD (starting with present and Security Directorate, ATTN: Biographies Headquarters Services, 1155 Defense working backwards to cover all periods of OSD Officials, 5001 Eisenhower Pentagon, Washington, DC 20301–1155. of assignment within OSD); past Avenue, Room 2N36, Alexandria, VA FOR FURTHER INFORMATION CONTACT: Mr. experiences (a brief history of other 22333–0001. Dan Cragg at (703) 601–4722. related past experiences); and education (optional). A photograph of the NOTIFICATION PROCEDURE: SUPPLEMENTARY INFORMATION: The Office individual is optional. Individuals seeking to determine of the Secretary of Defense notices for whether this system of records contains systems of records subject to the Privacy AUTHORITY FOR MAINTENANCE OF THE SYSTEM: information about themselves should Act of 1974 (5 U.S.C. 552a), as amended, address written inquiries to the Chief, have been published in the Federal 10 U.S.C. 131, Office of the Secretary of Defense. Personnel Systems and Evaluation Register and are available from the Division, Washington Headquarters address above. PURPOSE(S): Services, Personnel and Security The proposed systems reports, as Directorate, ATTN: Biographies of OSD required by 5 U.S.C. 552a(r) of the To provide the Secretary and Deputy Officials, 5001 Eisenhower Avenue, Privacy Act of 1974, as amended, were Secretary of Defense, as well as the OSD Room 2N36, Alexandria, VA 22333– submitted on April 1, 2003, to the Principal Staff Assistants (PSA), with 0001. House Committee on Government immediate access to biographical Requests for information should Reform, the Senate Committee on information on the OSD staff personnel. contain individual’s full name. Governmental Affairs, and the Office of PSAs will only have access to those Management and Budget (OMB) biographies for personnel who are RECORDS ACCESS PROCEDURES: pursuant to paragraph 4c of Appendix I employed, assigned, or detailed to their Individuals seeking to access to OMB Circular No. A–130, ‘Federal respective offices. information about them selves

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contained in this system of records perpendicular to the bit axis is waive the requirement for public should address written inquiries to the hexagonal. The shank portion has a consultation to the extent that public Chief, Personnel Systems and cross section smaller than the ball participation in the approval process Evaluation Division, Washington portion. The first portion end is adapted would defeat the purpose of the Headquarters Services, Personnel and to axially enter a socket head screw. The information collection, violate State or Security Directorate, ATTN: Biographies ball portion is adapted to enter a socket Federal law, or substantially interfere of OSD Officials, 5001 Eisenhower such that when turning the socket the with any agency’s ability to perform its Avenue, Room 2N36, Alexandria, VA socket head screw can be turned when statutory obligations. The Leader, 22333–0001. the socket axis is not axially aligned Regulatory Management Group, Office Requests for information should with the screw axis. of the Chief Information Officer, contain individual’s full name. ADDRESSES: Requests for copies of the publishes that notice containing proposed information collection CONTESTING RECORD PROCEDURES: invention cited should be directed to the Naval Surface Warfare Center, Crane requests prior to submission of these The OSD rules for accessing records, Div, Code OCF, Bldg 64, 300 Highway requests to OMB. Each proposed for contesting contents and appealing 361, Crane, IN 47522–5001. information collection, grouped by initial agency determinations are office, contains the following: (1) Type published in OSD Administrative FOR FURTHER INFORMATION CONTACT: Mr. Darrell Boggess, Naval Surface Warfare of review requested, e.g. new, revision, Instruction 81; 32 CFR part 311; or may extension, existing or reinstatement; (2) be obtained from the system manager. Center, Crane Div, Code OCF, Bldg 64, 300 Highway 361, Crane, IN 47522– title; (3) summary of the collection; (4) RECORD SOURCE CATEGORIES: 5001, telephone (812) 854–1130. To description of the need for, and The source of record is from the download an application for license, proposed use of, the information; (5) individuals concerned. see: www.crane.navy.mil/foia_pa/ respondents and frequency of CranePatents.asp. collection; and (6) reporting and/or EXEMPTIONS CLAIMED FOR THE SYSTEM: recordkeeping burden. OMB invites Authority: 35 U.S.C. 207, 37 CFR part 404. None. public comment. Dated: March 28, 2003. [FR Doc. 03–8623 Filed 4–8–03; 8:45 am] Dated: April 3, 2003. R.E. Vincent II, BILLING CODE 5001–08–P John D. Tressler, Lieutenant Commander, Judge Advocate General’s Corps, U.S. Navy, Federal Register Leader, Regulatory Management Group, Office of the Chief Information Officer. DEPARTMENT OF DEFENSE Liaison Officer. [FR Doc. 03–8673 Filed 4–8–03; 8:45 am] Office of Postsecondary Education Department of the Navy BILLING CODE 3810–FF–P Type of Review: Reinstatement. Title: Application Package for the Notice of Availability of Government- Jacob K. Javits Fellowship Program. Owned Inventions; Available for DEPARTMENT OF EDUCATION Frequency: Annually. Licensing Affected Public: Businesses or other Submission for OMB Review; for-profit. AGENCY: Department of the Navy, DOD. Comment Request ACTION: Notice. Reporting and Recordkeeping Hour AGENCY: Department of Education. Burden: SUMMARY: The inventions listed below SUMMARY: The Leader, Regulatory Responses: 2,000. are assigned to the United States Management Group, Office of the Chief Burden Hours: 10,000. Government as represented by the Information Officer invites comments Abstract: These instructions and Secretary of the Navy and are available on the submission for OMB review as forms provide the U.S. Department of for licensing by the Department of the required by the Paperwork Reduction Education the information needed to Navy. Patent application 10/342,649: Act of 1995. select fellows for the Javits Program. HAZMAT Platform; a portable, re- DATES: Interested persons are invited to This information collection is being usable, elevated platform that provides submit comments on or before May 9, submitted under the Streamlined a large, non-slip, grated surface on 2003. Clearance Process for Discretionary which an individual wearing a fully- Grants Information Collections (1890– encapsulated hazardous materials suit ADDRESSES: Written comments should 0001). Therefore, this 30-day public may stand to ensure thorough on-site be addressed to the Office of comment notice will be the only public decontamination. The elevated design Information and Regulatory Affairs, comment notice published for this with a top grate and two folding/ Attention: Lauren Wittenberg, Acting information collection. pivoting support leg assemblies allows Desk Officer, Department of Education, Requests for copies of the submission for the collection of the hazardous Office of Management and Budget, 725 for OMB review; comment request may material runoff in a containment vessel 17th Street, NW., Room 10235, New be accessed from http:// deployed underneath. It is made of Executive Office Building, Washington, edicsweb.ed.gov, by selecting the impervious, strong, lightweight material DC 20503 or should be electronically ‘‘Browse Pending Collections’’ link and to prevent absorption of any hazardous mailed to the internet address by clicking on link number 2246. When _ chemicals and to provide sufficient Lauren [email protected]. you access the information collection, structural strength while keeping its SUPPLEMENTARY INFORMATION: Section click on ‘‘Download Attachments ‘‘ to overall weight reasonable. The design is 3506 of the Paperwork Reduction Act of view. Written requests for information simple and straightforward and can be 1995 (44 U.S.C. Chapter 35) requires should be addressed to Vivian Reese, economically manufactured. Patent that the Office of Management and Department of Education, 400 Maryland application 10/314,484: Hexagonal Ball Budget (OMB) provide interested Avenue, SW., Room 4050, Regional Socket Driver Bit; a ball socket driver bit Federal agencies and the public an early Office Building 3, Washington, DC that includes a ball portion and a shank opportunity to comment on information 20202–4651 or to the e-mail address portion. The ball portion cross section collection requests. OMB may amend or [email protected]. Requests may also

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be electronically mailed to the Internet this collection necessary to the proper use a telecommunications device for the address [email protected] or faxed to functions of the Department; (2) will deaf (TDD) may call the Federal 202–708–9346. Please specify the this information be processed and used Information Relay Service (FIRS) at 1– complete title of the information in a timely manner; (3) is the estimate 800–877–8339. collection when making your request. of burden accurate; (4) how might the [FR Doc. 03–8605 Filed 4–8–03; 8:45 am] Comments regarding burden and/or Department enhance the quality, utility, BILLING CODE 4000–01–P the collection activity requirements and clarity of the information to be should be directed to Joseph Schubart at collected; and (5) how might the (202) 708–9266 or via his e-mail address Department minimize the burden of this DEPARTMENT OF EDUCATION [email protected]. Individuals who collection on the respondents, including use a telecommunications device for the through the use of information Notice of Proposed Information deaf (TDD) may call the Federal technology. Collection Requests Information Relay Service (FIRS) at 1– Dated: April 3, 2003. 800–877–8339. AGENCY: Department of Education. John D. Tressler, [FR Doc. 03–8604 Filed 4–8–03; 8:45 am] SUMMARY: The Leader, Regulatory Leader, Regulatory Management Group, Management Group, Office of the Chief BILLING CODE 4000–01–P Office of the Chief Information Officer. Information Officer, invites comments Office of Special Education and on the proposed information collection DEPARTMENT OF EDUCATION Rehabilitative Services requests as required by the Paperwork Reduction Act of 1995. Notice of Proposed Information Type of Review: New. DATES: Interested persons are invited to Collection Requests Title: Field Test of Agency Capacity to submit comments on or before June 9, Implement Reporting Requirements 2003. AGENCY: Department of Education. Associated with Draft Evaluation SUMMARY: The Leader, Regulatory Standard 3. SUPPLEMENTARY INFORMATION: Section Management Group, Office of the Chief Frequency: One-time. 3506 of the Paperwork Reduction Act of Information Officer, invites comments Affected Public: State, Local, or Tribal 1995 (44 U.S.C. chapter 35) requires that on the proposed information collection Gov’t, SEAs or LEAs. the Office of Management and Budget requests as required by the Paperwork Reporting and Recordkeeping Hour (OMB) provide interested Federal Reduction Act of 1995. Burden: agencies and the public an early DATES: Interested persons are invited to Responses: 80; opportunity to comment on information submit comments on or before June 9, Burden Hours: 4,880. collection requests. OMB may amend or 2003. Abstract: The field test will assess waive the requirement for public SUPPLEMENTARY INFORMATION: Section Designated State Unit (VR agency) consultation to the extent that public 3506 of the Paperwork Reduction Act of capacity to obtain and use participation in the approval process 1995 (44 U.S.C. Chapter 35) requires unemployment insurance wage record would defeat the purpose of the that the Office of Management and data maintained by State Employment information collection, violate State or Budget (OMB) provide interested Security Agencies (SESAs) needed to Federal law, or substantially interfere Federal agencies and the public an early implement a proposed evaluation with any agency’s ability to perform its opportunity to comment on information standard and associated performance statutory obligations. The Leader, collection requests. OMB may amend or indicators mandated by the 1992 Regulatory Management Group, Office waive the requirement for public amendments to the Rehabilitation Act, of the Chief Information Officer, consultation to the extent that public as amended by the Workforce publishes that notice containing participation in the approval process Investment Act of 1998. proposed information collection would defeat the purpose of the Requests for copies of the proposed requests prior to submission of these information collection, violate State or information collection request may be requests to OMB. Each proposed Federal law, or substantially interfere accessed from http://edicsweb.ed.gov, information collection, grouped by with any agency’s ability to perform its by selecting the ‘‘Browse Pending office, contains the following: (1) Type statutory obligations. The Leader, Collections’’ link and by clicking on of review requested, e.g. new, revision, Regulatory Management Group, Office link number 2252. When you access the extension, existing or reinstatement; (2) of the Chief Information Officer, information collection, click on title; (3) summary of the collection; (4) publishes that notice containing ‘‘Download Attachments ‘‘ to view. description of the need for, and proposed information collection Written requests for information should proposed use of, the information; (5) requests prior to submission of these be addressed to Vivian Reese, respondents and frequency of requests to OMB. Each proposed Department of Education, 400 Maryland collection; and (6) reporting and/or information collection, grouped by Avenue, SW., Room 4050, Regional recordkeeping burden. OMB invites office, contains the following: (1) Type Office Building 3, Washington, DC public comment. of review requested, e.g. new, revision, 20202–4651 or to the e-mail address The Department of Education is extension, existing or reinstatement; (2) [email protected]. Requests may also especially interested in public comment title; (3) summary of the collection; (4) be electronically mailed to the Internet addressing the following issues: (1) Is description of the need for, and address [email protected] or faxed to this collection necessary to the proper proposed use of, the information; (5) 202–708–9346. Please specify the functions of the Department; (2) will respondents and frequency of complete title of the information this information be processed and used collection; and (6) reporting and/or collection when making your request. in a timely manner; (3) is the estimate recordkeeping burden. OMB invites Comments regarding burden and/or of burden accurate; (4) how might the public comment. the collection activity requirements Department enhance the quality, utility, The Department of Education is should be directed to Sheila Carey at and clarity of the information to be especially interested in public comment (202) 708–6287 or via her e-mail address collected; and (5) how might the addressing the following issues: (1) Is [email protected]. Individuals who Department minimize the burden of this

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collection on the respondents, including DEPARTMENT OF ENERGY §§ 385.211 or 385.214 of the FERC’s through the use of information rules of practice and procedures (18 [Docket No. EA–278] technology. CFR 385.211, 385.214). Fifteen copies of each petition and protest should be filed Dated: April 3, 2003. Application To Export Electric Energy; Direct Commodities Trading Inc. with the DOE on or before the date John D. Tressler, listed above. Leader, Regulatory Management Group, AGENCY: Office of Fossil Energy, DOE. Comments on the DCT application to Office of the Chief Information Officer. ACTION: Notice of application. export electric energy to Canada should Office of Postsecondary Education be clearly marked with Docket EA–278. SUMMARY: Direct Commodities Trading Additional copies are to be filed directly Type of Review: Revison. Inc. (DCT) has applied for authority to with Jean-Jacques Taza, DCT Inc., 4821 Title: Performance Report for the transmit electric energy from the United Park Avenue, Suite 6, Montreal, Quebec, Jacob K. Javits Fellowship Program. States to Canada pursuant to section Canada H2V 4E7. 202(e) of the Federal Power Act. Frequency: Annually. A final decision will be made on this DATES: Comments, protests or requests application after the environmental Affected Public: Not-for-profit to intervene must be submitted on or impacts have been evaluated pursuant institutions; businesses or other for- before May 9, 2003. to the National Environmental Policy profit. ADDRESSES: Comments, protests or Act of 1969, and a determination is Reporting and Recordkeeping Hour requests to intervene should be made by the DOE that the proposed Burden: addressed as follows: Office of Coal & action will not adversely impact on the Responses: 115. Power Import/Export (FE–27), Office of reliability of the U.S. electric power Fossil Energy, U.S. Department of supply system. Burden Hours: 690. Energy, 1000 Independence Avenue, Copies of this application will be Abstract: This information collection SW., Washington, DC 20585–0350 (FAX made available, upon request, for public provides the U.S. Department of 202–287–5736). inspection and copying at the address Education with information needed to FOR FURTHER INFORMATION CONTACT: provided above or by accessing the determine if grantees have made Ellen Russell (Program Office) 202–586– Fossil Energy home page at http:// substantial progress toward meeting the 9624 or Michael Skinker (Program www.fe.doe.gov. Upon reaching the Program’s objectives and allow program Attorney) 202–586–2793. Fossil Energy Home page, select staff to monitor and evaluate the SUPPLEMENTARY INFORMATION: Exports of ‘‘Regulatory’’ Programs,’’ then Program. The Congress has mandated electricity from the United States to a ‘‘Electricity Regulation,’’ and then (through the Government’s Performance foreign country are regulated and ‘‘Pending Proceedings’’ from the options and Results Act of 1993) that the U.S. require authorization under section menus. Department of Educaton provide 202(e) of the Federal Power Act (FPA) Issued in Washington, DC, on April 2, documentation about the progress being (16 U.S.C. 824a(e)). 2003. made by the Program. On March 26, 2003, the Office of Anthony J. Como, Requests for copies of the proposed Fossil Energy (FE) of the Department of Deputy Director, Electric Power Regulation, information collection request may be Energy (DOE) received an application Office of Coal & Power Import/Export, Office of Coal & Power Systems, Office of Fossil accessed from http://edicsweb.ed.gov, from DCT to transmit electric energy from the United States to Canada. DCT, Energy. by selecting the ‘‘Browse Pending [FR Doc. 03–8635 Filed 4–8–03; 8:45 am] Collections’’ link and by clicking on a Canadian corporation, does not own or BILLING CODE 6450–01–P link number 2256. When you access the control any electric power generation or information collection, click on transmission facilities and does not have a franchised electric power service ‘‘Download Attachments’’ to view. DEPARTMENT OF ENERGY Written requests for information should area. DCT will purchase the power to be be addressed to Vivian Reese, Office of Energy Efficiency and exported from the New York Renewable Energy Department of Education, 400 Maryland Independent System Operator and Avenue, SW., Room 4050, Regional transmit it on its own behalf to Canada Office Building 3, Washington, DC Energy Conservation Program for over the existing international Consumer Products; Representative 20202–4651 or to the e-mail address transmission facilities currently owned _ Average Unit Costs of Energy vivian [email protected]. Requests may also by the New York Power Authority and be electronically mailed to the Internet Niagara Mohawk Power Corporation. AGENCY: Office of Energy Efficiency and _ address OCIO [email protected] or faxed to The construction, operation, Renewable Energy, Department of 202–708–9346. Please specify the maintenance, and connection of each of Energy. complete title of the information the international transmission facilities ACTION: Notice. collection when making your request. to be utilized by DCT, as more fully SUMMARY: In this notice, the Department Comments regarding burden and/or described in the application, has of Energy (DOE or Department) is the collection activity requirements previously been authorized by a Presidential permit issued pursuant to forecasting the representative average should be directed to Joseph Schubart at unit costs of five residential energy (202) 708–9266. Individuals who use a Executive Order 10485, as amended. Procedural Matters: Any person sources for the year 2003 persuant to the telecommunications device for the deaf Energy Policy and Conservation Act. (TDD) may call the Federal Information desiring to become a party to this proceeding or to be heard by filing The five sources are electricity, natural Relay Service (FIRS) at 1–800–877– gas, No. 2 heating oil, propane, and 8339. comments or protests to this application should file a petition to intervene, kerosene. [FR Doc. 03–8606 Filed 4–8–03; 8:45 am] comment or protest at the address EFFECTIVE DATE: The representative BILLING CODE 4000–01–P provided above in accordance with average unit costs of energy contained

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in this notice will become effective May average unit costs of the energy needed tax costs found in this notice. The 9, 2003, and will remain in effect until to operate such product during such representative average unit after-tax further notice. cycle (42 U.S.C. 6293(b)). The section costs for electricity, natural gas, No. 2 FOR FURTHER INFORMATION CONTACT: further requires that DOE provide heating oil, and propane are based on Brian Card, U.S. Department of Energy, information to manufacturers regarding simulations used to produce the Office of Energy Efficiency and the representative average unit costs of November, 2002, EIA Short-Term Renewable Energy, Forrestal Building, energy (42 U.S.C. 6293(b)(4)). This cost Energy Outlook, DOE/EIA–0226 (02/11), Mail Station EE–2J, 1000 Independence information should be used by and reflect the mid-price scenario. The Avenue, SW., Washington, DC 20585– manufacturers to meet their obligations representative average unit after-tax 0121. (202) 586–9228. under section 323(c) of the Act. Most costs for kerosene are derived from their Francine Pinto, Esq., U.S. Department notably, these costs are used to comply relative prices to that of heating oil, of Energy, Office of General Counsel, with Federal Trade Commission (FTC) based on 1997–2001 averages for these Forrestal Building, Mail Station GC–72, requirements for labeling. two fuels. The source for these price 1000 Independence Avenue, SW., Manufacturers are required to use the data is the October, 2002, Monthly Washington, DC 20585–0103. (202) 586– revised DOE representative average unit Energy Review DOE/EIA–0035(2002/10). 9507. costs when the FTC publishes new The Short-Term Energy Outlook and the SUPPLEMENTARY INFORMATION: Section ranges of comparability for specific Monthly Energy Review are available at 323 of the Energy Policy and covered products, 16 CFR part 305. the National Energy Information Center, Conservation Act (Act) (42 U.S.C. Interested parties can also find Forrestal Building, Room 1F–048, 1000 6291—6309) requires that DOE information covering the FTC labeling Independence Avenue, SW., prescribe test procedures for the requirements at www.ftc.gov/ Washington, DC 20585, (202) 586–8800. determination of the estimated annual appliances. These publications can also be found on operating costs or other measures of The Department last published the EIA Web site: www.eia.doe.gov. energy consumption for certain representative average unit costs of The 2003 representative average unit consumer products specified in the Act residential energy for use in the Energy costs pursuant to section 323(b)(4) of the (42 U.S.C. 6293). These test procedures Conservation Program for Consumer Act are set forth in Table 1, and will are found in 10 CFR part 430, subpart Products Other Than Automobiles on become effective May 9, 2003. They will B. April 24, 2002 (67 FR 20104). Effective remain in effect until further notice. Section 323(b) of the Act requires that May 9, 2003, the cost figures published the estimated annual operating costs of on April 24, 2002, will be superseded by Issued in Washington, DC, on April 4, a covered product be calculated from the cost figures set forth in this notice. 2003. measurements of energy use in a The Department’s Energy Information David K. Garman, representative average use cycle or Administration (EIA) has developed the Assistant Secretary for Energy Efficiency and period of use and from representative 2003 representative average unit after- Renewable Energy.

TABLE 1.—REPRESENTATIVE AVERAGE UNIT COSTS OF ENERGY FOR FIVE RESIDENTIAL ENERGY SOURCES—(2003)

Per million As required Type of energy 1 In commonly used terms by test Btu procedure

Electricity ...... $24.65 8.41¢/kWh 2,3 ...... $.0841/kWh. Natural gas ...... 8.16 81.6¢/therm 4 or $8.37/MCF 5,6 ...... 00000816/ Btu. No. 2 Heating Oil ...... 8.80 $1.22/gallon 7 ...... 00000880/ Btu. Propane ...... 13.25 $1.21/gallon 8 ...... 00001325/ Btu. Kerosene ...... 10.59 $1.43/gallon 9 ...... 00001059/ Btu. 1 Btu stands for British thermal units. 2 kWh stands for kilowatt hour. 3 1 kWh = 3,412 Btu. 4 1 therm = 100,000 Btu. Natural gas prices include taxes. 5 MCF stands for 1,000 cubic feet. 6 For the purposes of this table, one cubic foot of natural gas has an energy equivalence of 1,026 Btu. 7 For the purposes of this table, one gallon of No. 2 heating oil has an energy equivalence of 138,690 Btu. 8 For the purposes of this table, one gallon of liquid propane has an energy equivalence of 91,333 Btu. 9 For the purposes of this table, one gallon of kerosene has an energy equivalence of 135,000 Btu.

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[FR Doc. 03–8634 Filed 4–8–03; 8:45 am] B. How Can I Get Copies of this concern in sewage sludge that is used or BILLING CODE 6450–01–P Document and Other Related disposed of, and shall provide technical Information? support during the evaluation of those 1. EPA Docket. EPA has established pollutants. ENVIRONMENTAL PROTECTION an official public docket for this action 3. Laboratory analyses and AGENCY under docket ID number OPP–2003– laboratory/field studies. The contractor 0090. The official public docket consists shall analyze samples (e.g., water waste, [OPP–2003–0090; FRL–7297–4] of the documents specifically referenced surface water, drinking water, or sewage EPA’s Office of Water and its in this action, any public comments sludge) for pollutants to support Contractor, ICF and its Subcontractors received, and other information related development of water quality criteria, RTI, Sci Comm, Inc., and Appl, Inc.; to this action. Although, a part of the maximum contaminate level goals, Transfer of Data official docket, the public docket does sewage sludge pollutant limits, and not include Confidential Business other program requirements, as AGENCY: Environmental Protection Information (CBI) or other information specified in a work assignment. Agency (EPA). whose disclosure is restricted by statute. OPP has determined that access by ACTION: Notice. The official public docket is the ICF and its subcontractors RTI, Sci collection of materials that is available Comm, Inc., and Appl, Inc., to SUMMARY: This notice announces that for public viewing at the Public information on all pesticide chemicals pesticide related information submitted Information and Records Integrity is necessary for the performance of this to EPA’s Office of Pesticide Programs Branch (PIRIB), Rm. 119, Crystal Mall contract. (OPP) pursuant to the Federal #2, 1921 Jefferson Davis Hwy., Insecticide, Fungicide, and Rodenticide Some of this information may be Arlington, VA. This docket facility is entitled to confidential treatment. The Act (FIFRA) and the Federal Food, Drug, open from 8:30 a.m. to 4 p.m., Monday and Cosmetic Act (FFDCA), including information has been submitted to EPA through Friday, excluding legal under sections 3, 4, 6, and 7 of FIFRA information that may have been claimed holidays. The docket telephone number as Confidential Business Information and under sections 408 and 409 of is (703) 305–5805. FFDCA. (CBI) by the submitter, will be tranferred 2. Electronic access. You may access to EPA’s Office of Water and its this Federal Register document In accordance with the requirements contractor, ICF and its subcontractors electronically through the EPA Internet of 40 CFR, 2.307(h)(3), this contract RTI, Sci Comm, Inc., and Appl, Inc., in under the ‘‘Federal Register’’ listings at with ICF and its subcontractors RTI, Sci accordance with 40 CFR 2.307(h)(3), http://www.epa.gov/fedrgstr/. Comm, Inc., and Appl, Inc., prohibits and 2.308(h)(2). ICF and its An electronic version of the public use of the information for any purpose subcontractors RTI, Sci Comm, Inc., and docket is available through EPA’s not specified in the contract; prohibits Appl, Inc., have been awarded a electronic public docket and comment disclosure of the information to a third contract to perform work for EPA’s system, EPA dockets. You may use EPA party without prior written approval Office of Water. Access to this dockets at http://www.epa.gov/edocket/ from the Agency; and requires that each information will enable ICF and its to submit or view public comments, official and employee of the subcontractors RTI, Sci Comm, Inc., and access the index listing of the contents subcontractor sign an agreement to Appl, Inc., to fulfill the obligations of of the official public docket, and to protect the information from the contract. access those documents in the public unauthorized release and to handle it in DATES: EPA’s Office of Water and its docket that are available electronically. accordance with the FIFRA Information contractor, ICF and its subcontractors Although, not all docket materials may Security Manual. In addition, ICF and RTI, Sci Comm, Inc., and Appl, Inc., be available electronically, you may still its subcontractors RTI, Sci Comm, Inc., will be given access to this information access any of the publicly available and Appl, Inc., are required to submit on or before April 21, 2003. docket materials through the docket for EPA approval a security plan under which any CBI will be secured and FOR FURTHER INFORMATION CONTACT: facility identified in Unit I.B.1. Once in Erik protected against unauthorized release R. Johnson, FIFRA Security Officer, the system, select ‘‘search,’’ then key in the appropriate docket ID number. or compromise. No information will be Information Resources and Services provided to ICF and its subcontractors Division (7502C), Office of Pesticide II. Contractor Requirements RTI, Sci Comm, Inc., and Appl, Inc., Programs, Environmental Protection Under Contract No. 68–C0–2009, ICF until the requirements in this document Agency, 1200 Pennsylvania Ave., NW., have been fully satisfied. Records of Washington, DC 20460–0001; telephone and its subcontractors RTI, Sci Comm, Inc., and Appl, Inc., will perform the information provided under this number: (703) 305–7248; e-mail address: contract will be maintained by EPA [email protected]. following tasks: 1. Human health. The contractor shall Project Officers for this contract. All SUPPLEMENTARY INFORMATION: prepare summaries of peer-reviewed information supplied to, ICF and its I. General Information literature on toxic and clinical subcontractors RTI, Sci Comm, Inc., and endpoints, as specified in a work Appl, Inc., by EPA for use in connection A. Does this Action Apply to Me? assignment; screening analyses that with this contract will be returned to This action applies to the public in display and compare all available data EPA when ICF and its subcontractors general. As such, the Agency has not for a pollutant, and build on the RTI, Sci Comm, Inc., and Appl, Inc., attempted to describe all the specific summaries; analyses for the purpose of have completed their work. entities that may be affected by this supporting findings; and evaluate, and List of Subjects action. If you have any questions revise health effects documents. regarding the applicability of this action 2. Sewage sludge. The contractor shall Environmental protection, Business to a particular entity, consult the person provide technical support in the and industry, Government contracts, listed under FOR FURTHER INFORMATION preparation, evaluation, and revision of Government property, Security CONTACT. procedures for selecting pollutants-of- measures.

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Dated: March 27, 2003. under docket identification (ID) number in the environment (including the Linda Vlier Moos, OPP–2003–0095. The official public evaluation of environmental monitoring Acting Director, Information Resources and docket consists of the documents data), and, secondarily, the assessment Services Division, Office of Pesticide specifically referenced in this action, of pesticide fate and transport in the Programs. any public comments received, and environment. It may require the [FR Doc. 03–8373 Filed 4–8–03; 8:45 am] other information related to this action. contractor, on occasion, to conduct BILLING CODE 6560–50–S Although a part of the official docket, research to understand science issues, the public docket does not include support scientific workshops, conduct Confidential Business Information (CBI) analyses of issues and provide science ENVIRONMENTAL PROTECTION or other information whose disclosure is policy options. EPA’s Environmental AGENCY restricted by statute. The official public Fate and Evaluation Division (EFED) docket is the collection of materials that [OPP–2003–0095; FRL–7301–8] will make available to the contractor the is available for public viewing at the data, studies, and information which is Dynamac Corporation; Transfer of Public Information and Records to be reviewed. Data Integrity Branch (PIRIB), Rm. 119, These contracts involve no Crystal Mall #2, 1921 Jefferson Davis subcontractors. AGENCY: Environmental Protection Hwy., Arlington, VA. This docket Agency (EPA). facility is open from 8:30 a.m. to 4 p.m., OPP has determined that the contracts ACTION: Notice. Monday through Friday, excluding legal described in this document involve holidays. The docket telephone number work that is being conducted in SUMMARY: This notice announces that is (703) 305–5805. connection with FIFRA, in that pesticide related information submitted 2. Electronic access. You may access pesticide chemicals will be the subject to EPA’s Office of Pesticide Programs this Federal Register document of certain evaluations to be made under (OPP) pursuant to the Federal electronically through the EPA Internet the contracts. These evaluations may be Insecticide, Fungicide, and Rodenticide under the ‘‘Federal Register’’ listings at used in subsequent regulatory decisions Act (FIFRA) and the Federal Food, Drug, http://www.epa.gov/fedrgstr/. under FIFRA. and Cosmetic Act (FFDCA), including An electronic version of the public Some of this information may be information that may have been claimed docket is available through EPA’s entitled to confidential treatment. The as Confidential Business Information electronic public docket and comment information has been submitted to EPA (CBI) by the submitter, will be tranferred system, EPA Dockets. You may use EPA under sections 3, 4, 6, and 7 of FIFRA to Dynamac Corporation in accordance Dockets at http://www.epa.gov/edocket/ and under sections 408 and 409 of with 40 CFR 2.307(h)(3) and 2.308(i)(2). to submit or view public comments, FFDCA. Dynamac Corporation has been awarded access the index listing of the contents In accordance with the requirements multiple contracts to perform work for of the official public docket, and to of 40 CFR 2.307(h)(3), the contracts with OPP, and access to this information will access those documents in the public Dynamac Corporation, prohibits use of enable Dynamac Corporation to fulfill docket that are available electronically. the information for any purpose not the obligations of the contracts. Although not all docket materials may specified in these contracts; prohibits DATES: Dynamac Corporation will be be available electronically, you may still access any of the publicly available disclosure of the information to a third given access to this information on or party without prior written approval before April 14, 2003. docket materials through the docket facility identified in Unit I.B.1. Once in from the Agency; and requires that each FOR FURTHER INFORMATION CONTACT: Erik official and employee of the contractor R. Johnson, FIFRA Security Officer, the system, select ‘‘search,’’ then key in the appropriate docket ID number. sign an agreement to protect the Information Resources and Services information from unauthorized release Division (7502C), Office of Pesticide II. Contractor Requirements and to handle it in accordance with the Programs, Environmental Protection 1. Under Contract No. 68–W0–0070, FIFRA Information Security Manual. In Agency, 1200 Pennsylvania Ave., NW., the contract shall require the contractor addition, Dynamac Corporation is Washington, DC 20460–0001; telephone to research, evaluate, and analyze data required to submit for EPA approval a number: (703) 305–7248; e-mail address: and information pertaining to the security plan under which any CBI will [email protected]. ecotoxicity of pesticides and be secured and protected against SUPPLEMENTARY INFORMATION: concentrations of pesticides in the unauthorized release or compromise. No information will be provided to I. General Information environment—including soil, water, wildlife food items such as foliage and Dynamac Corporation until the A. Does this Action Apply to Me? insects, and to complete ecological risk requirements in this document have This action applies to the public in assessments as specified in the been fully satisfied. Records of general. As such, the Agency has not Statement of Work. Assessments information provided to Dynamac attempted to describe all the specific completed by the contractor shall Corporation will be maintained by EPA entities that may be affected by this analyze all valid and adequate data, Project Officers for these contracts. All action. If you have any questions including data studies retrieved from information supplied to Dynamac regarding the applicability of this action the open literature, as well as any Corporation by EPA for use in to a particular entity, consult the person ecological toxicity documents provided connection with these contracts will be listed under FOR FURTHER INFORMATION by registrants or other governmental returned to EPA when Dynamac CONTACT. bodies and present in detailed summary Corporation has completed its work. of the results. List of Subjects B. How Can I Get Copies of this 2. Under Contract No. 68–W0–0171, Document and Other Related this contract will provide support Environmental protection, Business Information? primarily in the area of review and and industry, Government contracts, 1. Docket. EPA has established an evaluation of available data pertaining Government property, Security official public docket for this action to the chemistry and fate of pesticides measures.

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Dated: April 1, 2003. and 23 will also be available, as space information should be published or be Linda Vlier Moos, allows. accepted for publication in a peer- Acting Director, Information Resources and FOR FURTHER INFORMATION CONTACT: For reviewed scientific journal. Such Services Division, Office of Pesticide workshop information and logistics, information should be provided to Dr. Programs. contact SAIC at: telephone: 703–318– Robert W. Elias via the above-noted [FR Doc. 03–8655 Filed 4–8–03; 8:45 am] 4678; facsimile: 703–736–0826. For contact information. [BILLING CODE 6560–50–S technical information, contact Dr. Dated: April 3, 2003. Robert W. Elias, U.S. EPA, NCEA–RTP, Peter W. Preuss, B243–01, Research Triangle Park, NC ENVIRONMENTAL PROTECTION Director, National Center for Environmental 27711; telephone: 919–541–4167; Assessment. AGENCY facsimile: 919–541–1818; or e-mail: [FR Doc. 03–8660 Filed 4–8–03; 8:45 am] [email protected]. [FRL–7479–6] BILLING CODE 6560–50–P SUPPLEMENTARY INFORMATION: As Peer-Review Workshop on the discussed in a previous call for Environmental Effects of Ozone and information (65 FR 57810, September ENVIRONMENTAL PROTECTION Related Photochemical Oxidants 26, 2000), EPA is undertaking to review AGENCY and, where appropriate, update and AGENCY: [FRL–7478–8] Environmental Protection revise the Ozone Criteria Document last Agency. issued in July 1996. Pursuant to section Meeting of the National Drinking Water ACTION: Notice of peer-review workshop 109 of the Clean Air Act, 42 U.S.C. 740, and public meeting. Advisory Council; Notice of Public EPA periodically reviews, and when Meeting appropriate, updates and revises, the air SUMMARY: The U.S. Environmental quality criteria for ozone published AGENCY: Environmental Protection Protection Agency (EPA) is announcing under Section 108 of the Act, 42 U.S.C. Agency. a peer review workshop to facilitate 7408. EPA then considers these air preparation of the Environmental Effects ACTION: Notice. quality criteria when it periodically Chapter to be included in a revised reviews the National Ambient Air SUMMARY: Under section 10(a)(2) of version of the EPA document Air Quality Standards (‘‘NAAQS’’) for Public Law 92–423, ‘‘The Federal Quality Criteria for Ozone and Related ozone. See 42 U.S.C. 7409(d). As part of Advisory Committee Act,’’ notice is Photochemical Oxidants (Ozone Criteria the review of the air quality criteria for hereby given of a meeting of the Document, EPA 600/P–93/004aF–cF). ozone, a series of peer-review National Drinking Water Advisory Draft sections for this chapter, prepared workshops will be convened to discuss Council (NDWAC), established under (with the assistance of qualified draft sections and chapters for the the Safe Drinking Water Act, as scientists under contract) by the EPA’s revised Ozone Criteria Document. amended (42 U.S.C. 300f et seq.). The National Center for Environmental Preliminary outlines for the proposed Council will hear presentations and Assessment-Research Triangle Park chapters were presented in the draft have discussions on topics important to Division (NCEA–RTP) within EPA’s Project Work Plan released for public the Environmental Protection Agency’s Office of Research and Development, comment (66 FR 67524, December 31, (EPA’s) national drinking water will be reviewed at the Workshop. 2001) and for review by the Clean Air program, including, but not limited to: NCEA will then consider the peer- Scientific Advisory Committee (CASAC) status reports from the NDWAC’s work review advice in revising the sections of EPA’s Science Advisory Board (68 FR groups on Affordability and the and incorporating them into the overall 3527, January 24, 2003). The first Contaminant Candidate List, and upates Environmental Effects Chapter of the workshop (to be held April 22–23, 2003) on regulatory activity, source water First External Review Draft Ozone will cover draft sections on the protection initiatives, and the Criteria Document to be released later environmental effects of ozone, development of EPA’s new strategic for public comment. followed at a later date by workshops on plan. DATES: The peer-review workshop will tropospheric ozone formation, DATES: The Council meeting will be begin on Tuesday, April 22, 2003, at 9 concentrations, exposure aspects, and a.m., and end on Wednesday, April 23, held on May 14, 2003, from 8:30 a.m. health effects. Copies of the draft until 5:30 p.m. and May 15, 2003, from 2003, at 5 p.m. Members of the public materials will be made available to the are invited to attend as observers. 8:30 a.m. until 1 p.m., Eastern Standard public at the workshops. Peer-review Time. ADDRESSES: The peer-review workshop comments and workshop discussions ADDRESSES: The meeting will be held at will be held at the Sheraton Imperial will be taken into account in revising The Washington Terrace Hotel located Hotel, 4700 Emperor Boulevard, the draft sections and chapters in at 1515 Rhode Island Ave., NW., Durham, North Carolina 27703. preparation for release to the public as Washington, DC and is open to the Sleeping room reservations may be part of the First External Review Draft public. made at 919–541–5050. Logistics for the of the Ozone Criteria Document. Ample workshop are being arranged by Science opportunity will be provided at that FOR FURTHER INFORMATION CONTACT: Applications International Corporation time for public review and submission Members of the public that would like (SAIC), an EPA contractor. To attend the of written comments. to attend the meeting, present an oral workshop, register by Monday, April 21, Interested parties are invited to assist statement, or submit a written 2003, by calling SAIC at 703–318–4678 the EPA in further developing and statement, should contact Brenda or by sending a facsimile to 703–736– refining the scientific information base Johnson, Designated Federal Officer, 0826. You can also register in advance by identifying and submitting pertinent National Drinking Water Advisory via e-mail at [email protected]. Space new information on potential health and Council, by phone at (202) 564–3791, by is limited, and reservations will be environmental effects of ozone. In order e-mail to [email protected], or accepted on a first-come, first-served to be considered for possible inclusion by regular mail to the U.S. basis. On-site registration on April 22 in the criteria document, submitted Environmental Protection Agency,

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Office of Ground Water and Drinking Federal Insecticide, Fungicide, and Act, 5 U.S.C. 801 et seq., as added by Water (M/C 4601M), 1200 Pennsylvania Rodenticide Act (FIFRA), as amended. the Small Business Regulatory Avenue, NW., Washington, DC 20460. In addition to stating the Agency’s Enforcement Fairness Act of 1996, does SUPPLEMENTARY INFORMATION: The response to the requests for cancellation not apply because this action is not a Council encourages the public’s input of certain CCA products and rule, for purposes of 5 U.S.C. 804(3). and will allocate one hour during the amendments to terminate certain uses of Since other entities may also be meeting for this purpose. Oral other CCA products, this notice also interested, the Agency has not statements will be limited to five addresses the considerable number of attempted to describe all the specific minutes, and it is preferred that only comments received in response to the entities that may be affected by this one person present the statement on Agency’s requests for public comments action. If you have any questions behalf of a group or organization. To on the above stated requests. In the regarding the applicability of this action ensure adequate time for public cancellation order, the Agency granted to a particular entity, consult the person involvement, individuals or certain of the aforementioned requests listed under FOR FURTHER INFORMATION organizations interested in presenting and did not take any action regarding CONTACT. an oral statement should notify the certain other elements of the requests. B. How Can I Get Additional Council’s Designated Federal Officer by Any sale, distribution, or use of affected Information, Including Copies of this telephone at (202) 564–3791, no later products listed in this notice will only Document and Other Related than May 2, 2003. Any person who be permitted if such distribution, sale, Documents? wishes to file a written statement can do or use is consistent with terms and 1. Electronically. You may obtain so before or after a Council meeting. conditions set forth in the cancellation electronic copies of this document, and Written statements received no later order. certain other related documents that than May 2, 2003 will be distributed to DATES: The effective dates of might be available electronically, from all members of the Council before any cancellation are as follows:(1) For the EPA Internet Home Page at http:// final discussion or vote is completed. affected product registrations—March www.epa.gov/. To access this document, Any statements received after the 17, 2003 (2) For affected product on the Home Page select ‘‘Laws and meeting will become part of the registrations amended to delete Regulations,’’ ‘‘Regulations and permanent meeting file and will be terminated uses—May 16, 2003. Proposed Rules’’ and then look up the forwarded to the Council members for FOR FURTHER INFORMATION CONTACT: By entry for this document under the their information. mail: Bonaventure Akinlosotu, Office of ’’Federal Register—Environmental Any person needing special Pesticide Programs (7510C), Documents.’’ You can also go directly to accommodations at this meeting, Environmental Protection Agency, 1200 the Federal Register listings at http:// including wheelchair access, please Pennsylvania Avenue, N.W., www.epa.gov/fedrgstr/. contact Brenda Johnson (see FOR Washington, DC 20460. Office location 2. In person. The Agency has FURTHER INFORMATION CONTACT section). for commercial courier delivery, established an official record for this Arrangements need to be made at least telephone number and e-mail address: action under docket control number five business days before the meeting so Rm. 308, Crystal Mall #2, 1921 Jefferson OPP–2003–0104. The official record that appropriate special Davis Highway, Arlington, VA 22202, consists of the documents specifically accommodations can be made. (703) 605–0653; e-mail: referenced in this action, any public Dated: April 2, 2003. [email protected]. comments received during an applicable Cynthia C. Dougherty, SUPPLEMENTARY INFORMATION: This comment period, and other information Director, Office of Ground Water and Drinking announcement consists of five parts. related to this action, including any Water. The first part contains general information claimed as Confidential [FR Doc. 03–8669 Filed 4–8–03; 8:45 am] information. The second part provides Business Information (CBI). This official record includes the documents that are BILLING CODE 6560–50–P background, and summarizes the use terminations and product cancellations physically located in the docket, as well requested by the CCA product as the documents that are referenced in ENVIRONMENTAL PROTECTION registrants. The third part summarizes those documents. The public version of AGENCY the comments received in response to the official record does not include any information claimed as CBI. The public [OPP–2003–0104; FRL–7301–2] the Agency’s request for public comments on the aforementioned version of the official record, which Response to Requests to Cancel registrants’ requests, and provides the includes printed, paper versions of any Certain Chromated Copper Arsenate Agency’s response to the comments. electronic comments submitted during (CCA) Wood Preservative Products The fourth part provides a summary of an applicable comment period, is and Amendments to Terminate Certain the Agency’s decision on the voluntary available for inspection in the Public Uses of other CCA Products cancellation and use termination Information and Records Integrity requests. The fifth part sets forth the Branch (PIRIB), Rm. 119, Crystal Mall AGENCY: Environmental Protection existing stocks provisions that the #2, 1921 Jefferson Davis Hwy., Agency (EPA) Agency authorized in the cancellation Arlington, VA, from 8:30 a.m. to 4 p.m., ACTION: Notice of a Cancellation Order. order. Monday through Friday, excluding legal holidays. The PIRIB telephone number SUMMARY: This notice announces that a I. General Information is (703) 305–5805. cancellation order was signed on March 17, 2003, in response to the use A. Does this Action Apply to Me? II. Background and Summary of terminations and cancellations This action is directed to the public Registrants’ Request to Cancel Products voluntarily requested by the registrants in general. You may be potentially and Delete Uses of wood preservative pesticide products affected by this action if you On February 22, 2002, the Agency containing Chromated Copper Arsenate manufacture, sell, distribute, or use CCA announced the receipt of requests from (CCA) pursuant to section 6(f)(1) of the products. The Congressional Review the registrants of wood preservative

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pesticide products containing generation wood treatment products. EPA received requests from four Chromated Copper Arsenate (CCA) to The Agency considers these voluntary registrants (Table 1 of this unit) to cancel certain CCA products and to moves toward arsenic-free wood cancel 2 products (Table 2 of this unit), amend the registrations to terminate treatment products as a positive step, and to amend 17 other affected end-use certain uses of other CCA products (67 particularly for our nation’s children. and manufacturing-use registrations to FR 8244)(FRL–6826–8). Another notice The Agency believes that reducing the terminate all uses of such products was issued (67 FR 13328, March 22, potential residential exposure to a (Table 3 of this unit) with the exception 2002)(FRL–6831–6) to extend the known human carcinogen is desirable. of the treatment of wood products that comment period until April 9, 2002. This transition affects all future fall under the American Wood- The requests proposed that only certain residential uses of wood treated with Preservers’ Association (AWPA) uses of CCA be allowed as of December CCA, including wood used in standards (based on the 2001 edition of 31, 2003. The registrants stated in their requests that their requests were being playground structures, decks, picnic the AWPA Standards) listed in the text made as a result of current and tables, landscaping timbers, residential of the requested label amendment stated projected market demand for CCA fencing, patios, walkways and below. products and the availability of new boardwalks.

TABLE 1.—REGISTRANTS REQUESTING VOLUNTARY TERMINATION OF CERTAIN USES AND/OR CANCELLATION OF PRODUCTS LISTED IN TABLES 2 AND 3

EPA Company Number Company Name and Address

003008 Osmose, Inc., 980 Ellicott Street, Buffalo, NY 14209

010465 Chemical Specialties. Inc.,One Woodlawn Green, Suite 250, 200 E. Woodlawn Road, Charlotte, NC 28217

035896 Phibro-Tech, Inc., Fort Lee, NJ 07024

062190 Arch Wood Protection, Inc., 1955 Lake Park Drive, Suite 250, Smyrna, GA 30080

TABLE 2.—REGISTRATIONS WITH REQUESTS FOR CANCELLATION OF PRODUCTS

Registration Number Product Name

62190–5 WolmanacR Concentrate 70%

62190–11 CCA Type C 50% Chromated Copper Arsenate

TABLE 3.—REGISTRATIONS WITH REQUESTS FOR AMENDMENTS TO TERMINATE CERTAIN USES

Registration Number Product Name

End Use Products

3008–17 K–33–C (72%) Wood Preservative

3008–21 Special K–33 Preservative

3008–34 K–33 (60%) Wood Preservative

3008–35 K–33 (40%) Type-B Wood Preservative

3008–36 K–33–C (50%) Wood Preservative

3008–42 K–33–A (50%) Wood Preservative

3008–72 Osmose Arsenic Acid 75%

10465–26 CCA Type-C Wood Preservative 50%

10465–28 CCA Type-C Wood Preservative 60%

10465–32 CSI Arsenic Acid 75%

35896–2 Wood-Last Conc. Wood Preservation AQ 50% Solution CCA-Type A

62190–2 Wolmanac Concentrate 50%

62190–8 Wolmanac Concentrate 72%

62190–14 Wolmanac Concentrate 60%

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TABLE 3.—REGISTRATIONS WITH REQUESTS FOR AMENDMENTS TO TERMINATE CERTAIN USES—Continued

Registration Number Product Name

Manufacturing Use Products

3008–66 Arsenic Acid 75%

10465–32 CSI Arsenic Acid 75%

62190–7 Arsenic Acid 75%

For affected manufacturing-use products treated with this product may only from the Agricultural Community and products, the label amendments were be sold or distributed for uses within the Wood Treatment Industry, (2) concerns proposed to read as follows: AWPA Commodity Standards under which with the possible adverse economic Effective December 31, 2003, this product the treatment occurred. impact on the Chromium Industry and In addition, the registrants requested may only be used (1) for formulation of the Corpus Christi, Texas, (3) concerns following end-use wood preservative that EPA allow use of the previous (unamended) labels for a period of 60 raised by Environmental Groups, and (4) products: ammoniacal copper zinc arsenate other significant, pertinent comments. (ACZA) or chromated copper arsenate (CCA) calendar days from the date on which labeled in accordance with the Directions for the particular affected registrant Generally, the purpose of soliciting Use shown below, or (2) by persons other receives EPA’s approval of the comments pursuant to Section 6(f) of than the registrant, in combination with one amendment(s) to terminate use(s), and FIFRA is to give an opportunity to or more other products to make: ACZA wood that EPA allow a further amendment by comment to those individuals or preservative; or CCA wood preservative that notification on or before December 1, businesses that would be affected by a is used in accordance with the Directions for registrant’s requested action and to Use shown below. 2003, to (1) delete the use directions in effect prior to these amendments, and those who may want to apply for a Effective December 31, 2003, this product registration for a pesticide for which may only be used for preservative treatment (2) to delete the preface phrase of the following categories of forest products ‘‘Effective December 31, 2003,’’ from the there is a request to cancel the and in accordance with the respective cited amended labels such that the statement registration or to terminate use(s). This standard (noted parenthetically) of the 2001 begins by reading, ‘‘This product may process helps to ensure that EPA is edition of the American Wood-Preservers only be used for preservative treatment basing its regulatory decisions on the Association Standards: Lumber and Timber of the following categories of forest most up-to-date and complete for Salt Water Use Only (C2), Piles (C3), Poles information. The Agency did not (C4), Plywood (C9), Wood for Highway products and in accordance with the respective cited standard (noted specifically solicit comments for the Construction (C14), Poles, Piles and Posts purpose of determining if the voluntary Used as Structural Members on Farms, and parenthetically) of the 2001 edition of Plywood Used on Farms (C16), Wood for the American Wood-Preservers’ cancellation/use termination requests Marine Construction (C18), Round Poles and Association Standards* * *.’’ were comprehensive enough or fast Posts Used in Building Construction (C23), Furthermore, the registrants stated in enough. Because these are voluntary Sawn Timber Used To Support Residential their letters that they would neither cancellation/use termination requests, and Commercial Structures (C24), Sawn amend nor withdraw their requests for the registrants have proposed their own Crossarms (C25), Structural Glued Laminated cancellation/use terminations before terms of cancellation/use termination. Members and Laminations Before Gluing EPA acts on them. Additionally, the This type of public comment (C28), Structural Composite Lumber (C33), opportunity under Section 6(f) differs and Shakes and Shingles (C34). Forest registrants will notify their customers of products treated with this product may only the amended labels by certified mail from the current reregistration public be sold or distributed for uses within the after EPA acts on the requests. process in that during the reregistration AWPA Commodity Standards under which public process the Agency solicits the treatment occurred. III. Summary of Public Comments comments on a draft preliminary risk For affected end-use products, the Received and Agency Response to assessment and on draft risk mitigation label amendments were proposed to Comments proposals in anticipation of actions that read as follows: The Agency issued a notice of receipt may not be voluntary. Therefore, the Effective December 31, 2003, this product of the aforementioned requests along scope of the public comment may only be used for preservative treatment with a solicitation for public comments opportunity in the reregistration process of the following categories of forest products (February 22, 2002), followed by is much broader than the scope of the and in accordance with the respective cited another notice to extend the comment opportunity in this voluntary standard (noted parenthetically) of the 2001 edition of the American Wood-Preservers period until April 9, 2002 (March 22, cancellation/use termination. Association Standards: Lumber and Timber 2002). Approximately 6,700 comments Below is the summary of the for Salt Water Use Only (C2), Piles (C3), Poles were submitted by the wood comments received in response to EPA’s (C4), Plywood (C9), Wood for Highway preservative industry, the chromium request for public comments, along with Construction (C14), Poles, Piles and Posts industry, the lumber industry, the the corresponding Agency response. Used as Structural Members on Farms, and agricultural industry, Kentucky and Plywood Used on Farms (C16), Wood for Texas State government officials, federal A. Business and Economic Concerns Marine Construction (C18), Round Poles and government officials, environmental from the Agricultural Community and Posts Used in Building Construction (C23), groups, businesses and private citizens Wood Treating Industry Sawn Timber Used To Support Residential and Commercial Structures (C24), Sawn of Corpus Christi, Texas, as well as from Comments. The majority of the Crossarms (C25), Structural Glued Laminated others. Based on the nature of the comments received within this category Members and Laminations Before Gluing concern(s) expressed, the comments specifically requested that the Agency (C28), Structural Composite Lumber (C33), were grouped into four major categories: not accept the request to cancel the use and Shakes and Shingles (C34). Forest (1) business and economic concerns of CCA-treated lumber for agricultural

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fence posts based on the lack of aesthetics, size, round shape, and pending the outcome of the risk exposure to children and the higher cost random diameter of that type of fence assessment being currently conducted of the alternative products. These post effectively limit its use for specific by the Agency. It was requested that comments were received from the wood agricultural purposes, and make it certain uses of CCA-treated wood, preservative, chromium, lumber, and inappropriate for residential which were proposed for termination be agricultural industries, as well as applications. The Agency has allowed to continue. Specifically, the private citizens, businesses, and town determined, based on available commenters requested that CCA-treated officials of Corpus Christi. With respect information and field investigations, wood continue to be permitted for the to exposure to children, the commenters that agricultural fence posts are not sold following uses under the AWPA stated their belief that there is little into the residential market. On the other Commodity Standards C2 (Lumber, exposure to children from agricultural hand, wood treated for fence posts Timber, Bridge Ties, Mine Ties for fencing (as compared to a deck or according to AWPA Standard C5 is sold above-ground, soil and freshwater use), playground constructed of CCA treated at the retail level for residential fencing C5 (Fence Posts), C15 (Wood for wood) because agricultural fences are and can be used for other residential Commercial-Residential Construction- generally far away from residences and applications as well. Preservative Treatment by Pressure because children typically do not play Rather than delay acceptance of other Processes), C16 (Agricultural Fence on a fence as they would a deck or portions of the voluntary cancellation/ Posts and certain Wood used on Farms), playground. In addition, the use termination requests until the and C22 (Permanent Wood Foundation commenters stated that the exclusion of reregistration review is complete, EPA Material). CCA-treated wood for agricultural fence has decided to accept the requests for Agency’s response. By way of posts from the label would cause an voluntary cancellation/use termination background, under FIFRA, a registration adverse economical impact on the for the other uses and defer any action or ‘‘license’’ is issued to an applicant for agricultural, lumber, and wood with respect to requests to terminate a pesticide product once all necessary treatment industries due to the higher agricultural fence post and permanent data requirements in support of the cost of the alternative treatment wood foundation uses until the Agency registration have been satisfied and the products. The commenters stated that has evaluated those uses through the application has been found to be the wood treatment plants, the reregistration process. If at any time acceptable. In order to obtain a agricultural industry, and the chromium during the reregistration review the registration for a pesticide under FIFRA, industry may suffer considerable Agency determines it has sufficient an applicant for registration must financial and market damage due to the information to take an action, that is, to demonstrate that the pesticide satisfies cost of converting wood preserving either accept or refuse the requests for the statutory standard for registration. plants currently treating with CCA to an use termination of those uses, the The standard requires, among other alternative chemical (estimated cost Agency will take appropriate action. things, that the pesticide perform its ranges from $75,000 to $125,000), and EPA believes this temporary deferral of intended function without causing the costs of the alternative treatment action is consistent with the principle to unreasonable adverse effects on the products (estimated to be 10–15% phase out CCA for residential uses. environment. The term ‘‘unreasonable adverse effects on the environment’’ is higher than CCA products at the retail B. Concerns With the Possible Adverse defined, among other things, as ‘‘any level and 30% higher than CCA Economic Impact on the Chromium unreasonable risk to man or the products for the agricultural industry). Industry and Corpus Christi, Texas environment, taking into account the The commenters stated their belief that Comments. Approximately 430 economic, social, and environmental as a result of the above stated concerns, comments were received regarding the costs and benefits of the use of any there will be loss of employment within potential adverse economic effect from pesticide.’’ the industries concerned. The Agency the proposed cancellation or Under the statute, a registrant may at also received a number of comments termination of CCA products or treated any time voluntarily request regarding the use of CCA to treat wood wood uses on the chromic acid cancellation of a particular pesticide used for permanent wood foundations. manufacturing plant in Corpus Christi, registration or termination of certain The comments received indicated a Texas. The residents of Corpus Christi uses for the registration. Upon receipt of need to retain this important use and have within their city limits a plant such requests, the Agency acts upon the that it posed little opportunity for owned by Elementis Chromium L.P. requests pursuant to section 6(f) of residential exposure. (Elementis), the only major FIFRA by notifying the public and Agency’s response. The Agency is manufacturer of chromic acid in the soliciting comments from the public on currently separately from this voluntary United States. This chromic acid plant the requests received. The Agency cancellation/use termination action, employs more than 100 residents of the reviews the comments and may, based reviewing the exposure and risk (as well Corpus Christi area and by its supply upon the comments received and/or any as the benefits) of all uses of CCA purchases and salaries, inputs about $40 information or knowledge it may have through its reregistration process. In million per year into the economy of concerning the pesticide and its uses in light of the issues raised by commenters Corpus Christi. Elementis believes the the environment, accept or deny the with regard to agricultural fence post projected 70% decrease in total sales of request either in whole or part. and permanent wood foundation uses, CCA-treated products 2 years after the With regard to the comments received EPA believes it is appropriate to amendment is accepted will have from the chromium industry and on evaluate the commenters’ concerns adverse economic consequences on the behalf of residents of Corpus Christi, during that review. For example, fence status of the plant operations and the Texas, as stated earlier, at this time, the posts treated according to AWPA city of Corpus Christi. Agency is not acting upon certain use Standard C16 are for agricultural Also, the chromium industry and terminations proposed by the purposes only. This particular type of wood treatment industry requested EPA registrants. Specifically, the Agency is fence post is used by many farmers and limit its action regarding the phase-out deferring action on two use terminations ranchers for barbed and other wire to only CCA-treated playground addressed in the comments, agricultural fencing. The distribution channels, structures and decks at this time, fence posts and permanent wood

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foundations. The Agency will examine cancellation order), and one that focuses treated with CCA. Fence posts treated such uses as part of its reregistration on the remaining industrial and marine according to AWPA Standard C16 are assessment of CCA products. However, uses. The result of the children’s for agricultural purposes only. This the remaining voluntary cancellation exposure assessment will serve as the particular type of fence post is used by requests were finalized on March 17, basis for determining if further action is many farmers and ranchers for barbed 2003, and the use terminations are needed concerning existing play and other wire fencing. The distribution effective as of May 16, 2003. structures and decks. channels, aesthetics, size, round shape, The Agency is also currently and random diameter of that type of C. Concerns Raised by Environmental examining the use of CCA-treated wood fence post effectively limit its use for Groups in light of the latest science and safety specific agricultural purposes, and make Comments. In their comments, the standards, under EPA’s reregistration it inappropriate for residential environmental groups (Clean Water process. Upon the completion of the applications. The Agency has Action, Healthy Building Network, and overall risk assessment, which will determined, based on available others) expressed concerns with the address the remaining uses of CCA and information and field investigations, estimated 75 billion board feet any occupational hazards that may exist that agricultural fence posts are not sold (estimated by the American Wood from exposure to CCA, and the benefits into the residential market. Fence posts Preservers Institute) of CCA-treated assessment, the Agency will announce treated according to AWPA Standard wood currently in use in residential its proposed approach and the public C5, however, are for residential settings. This proposed voluntary will be afforded an opportunity to purposes. Prior to the voluntary cancellation request affects future provide comments. The Agency will cancellation/use terminations, the labels residential uses of CCA products but then consider any comments received permitted wood treated for fence posts does not address existing CCA-treated and make a final determination as to the according to AWPA standard C5 to be wood decks and play structures. The reregistration eligibility of the remaining used for residential fencing, and it could environmental groups urged EPA to uses of CCA. also possibly be used for other complete the CCA risk assessments to With respect to the disposal of CCA- residential applications as well. determine the dangers posed by CCA- treated wood, CCA-treated wood is 2. CCA–treated wood export treated wood currently in use. Concerns classified as non-hazardous waste under restrictions— i. Comment. Comments were also expressed over the safety of the Federal Resource Conservation and sought clarification on whether wood building contractors who come into Recovery Act (RCRA). Disposal of CCA- treated with CCA can be exported to contact with CCA-treated wood used treated wood is addressed via the other countries for use in residential during building construction and with Consumer Awareness Program (CAP). settings. utility workers working with utility The CAP is a voluntary program Agency response. As stated in this poles. As a result, there were requests to established in 1986 (and later updated notice, under the Cancellation Order, extend use restrictions to include all in 2001) by the registrants of CCA effective December 31, 2003, wood uses, residential and industrial. products, to protect consumers by treatment facilities are only allowed to The environmental groups also providing them with information on the treat wood products with CCA that are believe that the time frame for the proper handling, use and disposal of intended to be used only for those phase-out of CCA-treated wood from CCA-treated wood. Under this program, remaining uses approved on the CCA residential uses is too lengthy, and that instructions on the proper handling, use product label. Wood intended for use in the phase-out is not comprehensive and disposal of CCA-treated wood are prohibited residential settings may not enough. They appeared to assume that disseminated to consumers upon be treated with CCA after December 30, CCA-treated plywood would continue to purchasing CCA-treated wood products 2003, unless the product being used is be sold in retail stores indefinitely. The via the Consumer Safety Information a pre-existing product and such use is commenters also expressed concerns Sheets (CSIS) and/or end tag labeling permitted by that product label. (See that the Agency doesn’t address proper applied to the wood product itself. EPA Unit V: ‘‘Provisions for Disposition of disposal of CCA-treated wood, and also disseminates guidance to Existing Stocks’’) Because of the method treated wood could be burned or consumers to advise against burning of product manufacture and distribution dumped in landfills where it can CCA-treated wood. Additional used in the wood preservation industry, contaminate soil and groundwater. They information regarding the CAP, the Agency does not expect any more suggested that the registration be handling, use and disposal of CCA- than de minimus stocks to exist as of amended to include proper handling, treated wood can be obtained from the December 31, 2003, that do not bear the use and disposal of CCA-treated wood. Agency’s Web site at: http:// more restrictive label language. Hence, Agency’s response. The Agency www.epa.gov/pesticides/citizens/ beginning December 31, 2003, unless acknowledges the concerns expressed 1file.htm. the label on the affected product by environmental groups regarding the provides otherwise, it would be illegal potential risks of CCA to human health D. Other Significant Pertinent comments to treat wood with CCA for any and the environment, and the need to 1. Clarification regarding AWPA prohibited residential use, regardless of proceed as quickly as possible given the Standard C5—comment. An inquiry whether the treated wood is to be used potential risks. The Agency intends to was made as to the potential decision to in the United States or exported for use address the commenters’ concerns in allow wood to be treated with CCA for in other countries. two ongoing Agency processes in which agricultural purposes (fence posts) 3. Request received from American the risk of the non-cancelled or under AWPA Standard C16 yet Wood-Preservers Institute (AWPI)— terminated uses of CCA are currently questioning why it would be a comment. The American Wood- being assessed. The Agency is currently prohibited use under the AWPA Preservers Institute, which provided conducting two risk assessments, one Standard C5. comments on behalf of the companies that focuses on children’s exposure to Agency response. As discussed that treat wood, requested that the CCA from play structures and decks earlier, the Agency is not taking any proposed cancellation date of December constructed of CCA treated wood (uses action on the requests to delete the 31, 2003, be extended an additional 3– of which are terminated pursuant to the agricultural fence post use of wood 6 months to allow further time for

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treating plants’ transition/conversion to would render the requested time period on the registrants’ request to terminate alternative chemicals. inappropriate, and therefore EPA is not these uses until the Agency has Agency response. The Agency extending the requested time period. evaluated these uses through the recognizes that the transition to IV. Summary of Agency’s Decision reregistration process. If at any time alternative chemicals may pose Regarding the Voluntary Cancellation/ during the reregistration review the significant challenges to some Use Termination Requests Agency determines it has sufficient information to take any action, that is, stakeholders including wood treaters. The Agency has accepted portions of to either accept or refuse the requests for However, in their request for voluntary the proposed voluntary cancellation/use termination of those uses, the Agency cancellation/use termination, the termination requests and is deferring registrants stated that a 22–month action on other portions. As stated will take appropriate action at that time. phase-in period was practicable based earlier, in light of the issues raised by EPA’s decision on the other portions of on the amount of time they believed is commenters with regard to the the requests for voluntary cancellation/ required to convert and retrofit the agricultural fence post and permanent use termination is as follows: treating plants. The commenters did not wood foundation uses, the Agency has 1. The following product registrations present any substantial information that decided to defer its decision and action were cancelled as of March 17, 2003:

62190–5 WolmanacR Concentrate 70%

62190–11 CCA Type C 50% Chromated Copper Arsenate

2. The following manufacturing delete certain terminated uses as of May product registrations were amended to 16, 2003:

3008–66 Arsenic Acid 75%

10465–32 CSI Arsenic Acid 75%

62190–7 Arsenic Acid 75%

For the above identified Effective December 31, 2003, this product Used in Building Construction (C23), Sawn manufacturing-use products, the may only be used for preservative treatment Timber Used To Support Residential and accepted amended labeling reads as of the following categories of forest products Commercial Structures (C24), Sawn follows: and in accordance with the respective cited Crossarms (C25), Structural Glued Laminated Effective December 31, 2003, this product standard (noted parenthetically) of the 2001 Members and Laminations Before Gluing may only be used (1) for formulation of the edition of the American Wood-Preservers (C28), Structural Composite Lumber (C33), following end-use wood preservative Association Standards: Lumber and Timber and Shakes and Shingles (C34). Forest products: ammoniacal copper zinc arsenate for Salt Water Use Only (C2), Piles (C3), Poles products treated with this product may only (ACZA) or chromated copper arsenate (CCA) (C4), Plywood (C9), Wood for Highway be sold or distributed for uses within the labeled in accordance with the Directions for Construction (C14), Round, Half Round and AWPA Commodity Standards under which Use shown below, or (2) by persons other Quarter Round Fence Posts (C16), Poles, Piles the treatment occurred. than the registrant, in combination with one and Posts Used as Structural Members on or more other products to make: ACZA wood Farms, and Plywood Used on Farms (C16), 3. The following end use product preservative; or CCA wood preservative that Wood for Marine Construction (C18), Lumber registrations were amended to delete is used in accordance with the Directions for and Plywood for Permanent Wood certain terminated uses as of May 16, Use shown below. Foundations (C22), Round Poles and Posts 2003:

3008–17 K–33–C (72%) Wood Preservative

3008–21 Special K–33 Preservative

3008–34 K–33 (60%) Wood Preservative

3008–35 K–33 (40%) Type-B Wood Preservative

3008–36 K–33–C (50%) Wood Preservative

3008–42 K–33–A (50%) Wood Preservative

3008–72 Osmose Arsenic Acid 75%

10465–26 CCA Type-C Wood Preservative 50%

10465–28 CCA Type-C Wood Preservative 60%

10465–32 CSI Arsenic Acid 75%

35896–2 Wood-Last Conc. Wood Preservation AQ 50% Solution CCA-Type A

62190–2 Wolmanac Concentrate 50%

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62190–8 Wolmanac Concentrate 72%

62190–14 Wolmanac Concentrate 60%

For the above identified end-use V. Provisions for Disposition of Existing following the signing of the cancellation products, the accepted amended label is Stocks order. Registrants were notified of the to read as follows: For purposes of this Order, the term signing of the cancellation order and of Effective December 31, 2003, this product the required changes to labels on the may only be used for preservative treatment ‘‘existing stocks’’ is defined, pursuant to EPA’s existing stocks policy (56 FR date the order was signed by telephone of the following categories of forest products and facsimile transmission. This 60-day and in accordance with the respective cited 29362, June 26, 1991), as those stocks of standard (noted parenthetically) of the 2001 a registered pesticide product which are period is intended to allow a sufficient edition of the American Wood-Preservers currently in the United States and period of time for an orderly transition Association Standards: Lumber and Timber which have been packaged, labeled, and to the amended labels without for Salt Water Use Only (C2), Piles (C3), Poles released for shipment prior to the disrupting supply and availability of (C4), Plywood (C9), Wood for Highway effective date of the cancellation or product. On or after May 16, 2003, any Construction (C14), Round, Half Round and amendment. Any distribution, sale or sale, distribution, or use of existing Quarter Round Fence Posts (C16), Poles, Piles stocks by the registrants of the subject and Posts Used as Structural Members on use of existing stocks in a manner Farms, and Plywood Used on Farms (C16), inconsistent with the terms of the registrations is prohibited. Sale, Wood for Marine Construction (C18), Lumber cancellation order or the existing stocks distribution, or use by persons other and Plywood for Permanent Wood provisions contained in the order will than the registrants may continue until Foundations (C22), Round Poles and Posts be considered a violation of section supplies are exhausted. Additionally, Used in Building Construction (C23), Sawn 12(a)(2)(K) and/or section 12(a)(1)(A) of sale, distribution or use of the stocks in Timber Used To Support Residential and the channels of trade by persons other Commercial Structures (C24), Sawn FIFRA. The following summarizes the effective dates of cancellation as well as than the registrant may continue until Crossarms (C25), Structural Glued Laminated depleted, provided any sale, Members and Laminations Before Gluing the existing stocks provisions for each (C28), Structural Composite Lumber (C33), product subject to the cancellation distribution or use is in accordance with and Shakes and Shingles (C34). Forest order. the existing label of that product. products treated with this product may only 1. Cancelled registrations (Table 2 in List of Subjects be sold or distributed for uses within the Unit II). The effective date of AWPA Commodity Standards under which cancellation was March 17, 2003, the Environmental protection, Chromated the treatment occurred. Copper Arsenate, Pesticides and pests. 4. Further amendments to the product date upon which the cancellation order label will be made by the registrants of was signed. Registrants have 60 Dated: March 27, 2003. the above identified amended calendar days following the signing of Jack E. Housenger, registrations via notification to the the cancellation order (until May 16, Acting Director, Antimicrobials Division, Agency on or before December 1, 2003, 2003) in which to sell or distribute Office of Pesticide Programs. to: (1) Delete the use directions in effect products listed in Table 2. Registrants [FR Doc. 03–8372 Filed 4–8–03; 8:45 am] prior to these amendments, and (2) were notified of the signing of the BILLING CODE 6560–50–S delete the preface phrase ‘‘Effective cancellation order and of the required December 31, 2003,’’ from the amended changes to labels on the date the order labels such that the statement begins by was signed by telephone and facsimile ENVIRONMENTAL PROTECTION reading, ‘‘This product may only be transmission. Any sale, distribution, or AGENCY used for preservative treatment of the use by the registrants of these affected [OPP–2003–0074; FRL–7298–2] following categories of forest products products on or after that date is and in accordance with the respective prohibited. Sale, distribution, or use by Pesticide Product Registrations; cited standard (noted parenthetically) of persons other than the registrants may Conditional Approval the 2001 edition of the American Wood- continue until supplies are exhausted. Preservers’ Association Standards...’’ Additionally, sale, distribution or use of AGENCY: Environmental Protection These specific changes may be done via the stocks by persons other than the Agency (EPA). notification. registrant in the channels of trade may ACTION: Notice. 5. The registrants of the above continue until depleted, provided any identified products will notify their sale, distribution, or use is in SUMMARY: This notice announces customers of the amended registrations/ accordance with the existing label of Agency approval of applications labels by certified mail. This is to ensure that product. submitted by Plant Products Co. Ltd., that those who are affected by the 2. Registrations amended to delete Brampton, ON L6T 1G1, Canada, to cancellation order are aware of the terminated uses (Table 3). The effective conditionally register the pesticide labeling changes. date of the cancellation effectuating the products Pseudozyma flocculosa strain 6. The cancellation order included use terminations is May 16, 2003. The PF–A22 UL (TGAI) technical grade of existing stocks provisions as described registrants’ voluntary requests for the active ingredient and SPORODEX L in Unit V below. termination of uses had requested that an end-use product (EP) containing a 7. The text in 40 CFR 152.132 EPA allow use of the previous new active ingredient not included in provides that a distributor (or (unamended) labels for a period of 60 any previously registered products supplemental registrant) is considered calendar days from the date on which pursuant to the provisions of section an agent of the registrant for intents and the particular affected registrant 3(c)(7)(C) of the Federal Insecticide, purposes under the act, and both the receives EPA’s approval of the Fungicide, and Rodenticide Act registrant and the distributor may be amendments. The Agency is granting (FIFRA), as amended. held liable for violations pertaining to this request by making the effective date FOR FURTHER INFORMATION CONTACT: the distributor product. of cancellation 60 calendar days Sharlene R. Matten, Biopesticides and

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Pollution Prevention Division (7511C), specifically protected by section 10 of pattern of use, application methods and Office of Pesticide Programs, FIFRA, are available for public rates, and level and extent of potential Environmental Protection Agency, 1200 inspection in the Public Information exposure. Based on these reviews, the Pennsylvania Ave., NW., Washington, and Records Integrity Branch, Agency was able to make basic health DC 20460–0001; telephone number: Information Resources and Services and safety determinations which show (703) 605–0514; e-mail address: Division (7502C), Office of Pesticide that use of Pseudozyma flocculosa [email protected]. Programs, Environmental Protection strain PF–A22 UL during the period of SUPPLEMENTARY INFORMATION: Agency, Rm. 119, Crystal Mall #2, conditional registration will not cause Arlington, VA (703) 305–5805. Requests any unreasonable adverse effect on the I. General Information for data must be made in accordance environment, and that use of the A. Does this Action Apply to Me? with the provisions of the Freedom of pesticide is in the public interest. Information Act and must be addressed Consistent with section 3(c)(7)(C) of You may be potentially affected by to the Freedom of Information Office FIFRA, the Agency has determined that this action if you produce crops or (A–101), 1200 Pennsylvania Ave., NW., these conditional registrations are in the animals or manufacture food or Washington, DC 20460–0001. Such public interest. Use of the pesticides are pesticides. Potentially affected entities requests should: Identify the product of significance to the user community, may include, but are not limited to: name and registration number and and appropriate labeling, use directions, • Crop production (NAICS 111) specify the data or information desired. and other measures have been taken to • Animal production (NAICS 112) A paper copy of the fact sheet, which • ensure that use of the pesticides will not Food manufacturing (NAICS 311) provides more detail on this result in unreasonable adverse effects to • Pesticide manufacturing (NAICS registration, may be obtained from the man and the environment. 32532) National Technical Information Service This listing is not intended to be (NTIS), 5285 Port Royal Rd., III. Conditionally Approved exhaustive, but rather provides a guide Springfield, VA 22161. Registrations for readers regarding entities likely to be 2. Electronic access. You may access EPA issued a notice, published in the affected by this action. Other types of this Federal Register document Federal Register of October 4, 2000 (65 entities not listed in this unit could also electronically through the EPA Internet FR 59185) (FRL–6742–1) (OPP–30500), be affected. The North American under the ‘‘Federal Register’’ listings at which announced that Jellinek, Industrial Classification System http://www.epa.gov/fedrgstr/. Schwartz and Connolly, Inc., 1525 (NAICS) codes have been provided to An electronic version of the public Wilson Blvd., Suite 600, Arlington, VA assist you and others in determining docket is available through EPA’s for Plant Products Co. Ltd., 314 Orenda whether this action might apply to electronic public docket and comment Road, Brampton, Ontario, Canada, had certain entities. If you have any system, EPA Dockets. You may use EPA submitted applications for (EPA file questions regarding the applicability of Dockets at http://www.epa.gov/edocket/ symbols 69697–R and 69697–G) to this action to a particular entity, consult to submit or view public comments, register pesticide products containing the person listed under FOR FURTHER access the index listing of the contents Pseudozyma flocculosa. INFORMATION CONTACT. of the official public docket, and to The following products were access those documents in the public B. How Can I Get Copies of This approved on September 20, 2002 to docket that are available electronically. Document and Other Related control powdery mildew disease on Although not all docket materials may Information? greenhouse-grown cut roses and English be available electronically, you may still seedless cucumbers: 1. Docket. EPA has established an access any of the publicly available 1. Pseudozyma flocculosa strain PF– official public docket for this action docket materials through the docket A22 UL (TGAI) (EPA Registration under docket identification (ID) number facility identified in Unit I.B.1. Once in Number 69697–1). OPP–2003–0074. The official public the system, select ‘‘search,’’ then key in 2. Sporodex L Biological Fungicide docket consists of the documents the appropriate docket ID number. (EPA Registration Number 69697–3). specifically referenced in this action, Both conditional registrations were II. Did EPA Conditionally Approve the any public comments received, and signed on September 20, 2002 and will Application? other information related to this action. expire on September 30, 2004. EPA is Although a part of the official docket, A conditional registration may be requiring the registrant to provide data the public docket does not include granted under section 3(c)(7)(C) of by October 31, 2003 showing detailed Confidential Business Information (CBI) FIFRA for a new active ingredient where analysis of microbial contaminants in or other information whose disclosure is certain data are lacking, on condition production batches, and reporting any restricted by statute. The official public that such data are received by the end incidents of hypersensitivity or other docket is the collection of materials that of the conditional registration period adverse health incidents to workers, is available for public viewing at the and do not meet or exceed the risk applicators, or bystanders. In addition, Public Information and Records criteria set forth in 40 CFR 154.7; that EPA is requiring storage stability data Integrity Branch (PIRIB), Rm. 119, use of the pesticide during the for Sporodex L Biological Fungicide, Crystal Mall #2, 1921 Jefferson Davis conditional registration period will not and an acute pulmonary infectivity/ Hwy., Arlington, VA. This docket cause unreasonable adverse effects; and toxicity study for Pseudozyma facility is open from 8:30 a.m. to 4 p.m., that use of the pesticide is in the public flocculosa strain PF–A22 UL (TGAI) by Monday through Friday, excluding legal interest. The Agency has considered the October 31, 2003. After analyzing the holidays. The docket telephone number available data on the risks associated submitted data, EPA will decide is (703) 305–5805. with the proposed use of Pseudozyma whether to approve these products for a In accordance with section 3(c)(2) of flocculosa strain PF–A22 UL, and full registration. FIFRA, a copy of the approved label, the information on social, economic, and list of data references, the data and other environmental benefits to be derived List of Subjects scientific information used to support from such use. Specifically, the Agency Environmental protection, Chemicals, registration, except for material has considered the nature and its Microbes, Pesticides and pests.

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Dated: March 31, 2003. to a particular entity, consult the person be available electronically, you may still Janet L. Andersen, listed under FOR FURTHER INFORMATION access any of the publicly available Director, Biopesticides and Pollution CONTACT. docket materials through the docket facility identified in Unit I.B.1. EPA Prevention Division, Office of Pesticide B. How Can I Get Copies of this Programs. intends to work towards providing Document and Other Related electronic access to all of the publicly [FR Doc. 03–8656 Filed 4–8–03; 8:45 am] Information? available docket materials through BILLING CODE 6560–50–S 1. Docket. EPA has established an EPA’s electronic public docket. official public docket for this action For public commenters, it is ENVIRONMENTAL PROTECTION under docket identification (ID) number important to note that EPA’s policy is OPP–2003–0080. The official public AGENCY that public comments, whether docket consists of the documents submitted electronically or in paper, [OPP–2003–0080; FRL–7300–3] specifically referenced in this action, will be made available for public any public comments received, and viewing in EPA’s electronic public Experimental Use Permit; Receipt of other information related to this action. docket as EPA receives them and Application Although a part of the official docket, without change, unless the comment AGENCY: Environmental Protection the public docket does not include contains copyrighted material, CBI, or Agency (EPA). Confidential Business Information (CBI) other information whose disclosure is or other information whose disclosure is ACTION: Notice. restricted by statute. When EPA restricted by statute. The official public identifies a comment containing SUMMARY: This notice announces receipt docket is the collection of materials that copyrighted material, EPA will provide of an application 75437–EUP–R from is available for public viewing at the a reference to that material in the Great Lakes Fishery Commission (GLFC) Public Information and Records version of the comment that is placed in requesting an experimental use permit Integrity Branch (PIRIB), Rm. 119, EPA’s electronic public docket. The (EUP) for the sea lamprey migratory Crystal Mall #2, 1921 Jefferson Davis entire printed comment, including the pheromone, petromyzonol sulfate. The Hwy., Arlington, VA. This docket copyrighted material, will be available Agency has determined that the facility is open from 8:30 a.m. to 4 p.m., in the public docket. application may be of regional and Monday through Friday, excluding legal Public comments submitted on national significance. Therefore, in holidays. The docket telephone number computer disks that are mailed or accordance with 40 CFR 172.11(a), the is (703) 305–5805. delivered to the docket will be Agency is soliciting comments on this 2. Electronic access. You may access transferred to EPA’s electronic public application. this Federal Register document docket. Public comments that are electronically through the EPA Internet mailed or delivered to the docket will be DATES: Comments, identified by docket under the ‘‘Federal Register’’ listings at scanned and placed in EPA’s electronic ID number OPP–2003–0080, must be http://www.epa.gov/fedrgstr/. public docket. Where practical, physical received on or before May 9, 2003. An electronic version of the public objects will be photographed, and the ADDRESSES: Comments may be docket is available through EPA’s photograph will be placed in EPA’s submitted electronically, by mail, or electronic public docket and comment electronic public docket along with a through hand delivery/courier. Follow system, EPA Dockets. You may use EPA brief description written by the docket the detailed instructions as provided in Dockets at http://www.epa.gov/edocket/ staff. Unit I. of the SUPPLEMENTARY to submit or view public comments, INFORMATION. access the index listing of the contents C. How and To Whom Do I Submit Comments? FOR FURTHER INFORMATION CONTACT: of the official public docket, and to Andrew Bryceland, Biopesticides and access those documents in the public You may submit comments Pollution Prevention Division (7511C), docket that are available electronically. electronically, by mail, or through hand Office of Pesticide Programs, Once in the system, select ‘‘search,’’ delivery/courier. To ensure proper Environmental Protection Agency, 1200 then key in the appropriate docket ID receipt by EPA, identify the appropriate Pennsylvania Ave., NW., Washington, number. docket ID number in the subject line on DC 20460–0001; telephone number: Certain types of information will not the first page of your comment. Please (703) 305–6928; e-mail address: be placed in the EPA Dockets. ensure that your comments are [email protected]. Information claimed as CBI and other submitted within the specified comment information whose disclosure is period. Comments received after the SUPPLEMENTARY INFORMATION: restricted by statute, which is not close of the comment period will be I. General Information included in the official public docket, marked ‘‘late.’’ EPA is not required to will not be available for public viewing consider these late comments. If you A. Does this Action Apply to Me? in EPA’s electronic public docket. EPA’s wish to submit CBI or information that This action is directed to the public policy is that copyrighted material will is otherwise protected by statute, please in general. This action may, however, be not be placed in EPA’s electronic public follow the instructions in Unit I.D. Do of interest to those persons who are or docket but will be available only in not use EPA Dockets or e-mail to submit may be required to conduct testing of printed, paper form in the official public CBI or information protected by statute. chemical substances under the Federal docket. To the extent feasible, publicly 1. Electronically. If you submit an Food, Drug, and Cosmetic Act (FFDCA) available docket materials will be made electronic comment as prescribed in this or the Federal Insecticide, Fungicide, available in EPA’s electronic public unit, EPA recommends that you include and Rodenticide Act (FIFRA). Since docket. When a document is selected your name, mailing address, and an e- other entities may also be interested, the from the index list in EPA Dockets, the mail address or other contact Agency has not attempted to describe all system will identify whether the information in the body of your the specific entities that may be affected document is available for viewing in comment. Also include this contact by this action. If you have any questions EPA’s electronic public docket. information on the outside of any disk regarding the applicability of this action Although not all docket materials may or CD ROM you submit, and in any

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cover letter accompanying the disk or and Records Integrity Branch (PIRIB), assigned to this action in the subject CD ROM. This ensures that you can be Office of Pesticide Programs (OPP), line on the first page of your response. identified as the submitter of the Environmental Protection Agency, Rm. You may also provide the name, date, comment and allows EPA to contact you 119, Crystal Mall #2, 1921 Jefferson and Federal Register citation. in case EPA cannot read your comment Davis Hwy., Arlington, VA, Attention: II. Background due to technical difficulties or needs Docket ID Number OPP–2003–0080. further information on the substance of Such deliveries are only accepted The GLFC has submitted an your comment. EPA’s policy is that EPA during the docket’s normal hours of application for an EUP to determine if will not edit your comment, and any operation as identified in Unit I.B.1. the sea lamprey migratory pheromone, identifying or contact information petromyzonol sulfate can be used to provided in the body of a comment will D. How Should I Submit CBI To the attract sea lamprey into traps located in be included as part of the comment that Agency? rivers. The study is to be conducted in is placed in the official public docket, Do not submit information that you the following creeks/rivers, states, and and made available in EPA’s electronic consider to be CBI electronically counties: Green Creek, Michigan, public docket. If EPA cannot read your through EPA’s electronic public docket Cheboygan; Mulligan Creek, Michigan, comment due to technical difficulties or by e-mail. You may claim Presque Isle; Black Mallard River, and cannot contact you for clarification, information that you submit to EPA as Michigan, Presque Isle; Ocqueoc River, EPA may not be able to consider your CBI by marking any part or all of that Michigan, Presque Isle; Trout River, comment. information as CBI (if you submit CBI Michigan, Presque Isle; Poultney River/ i. EPA Dockets. Your use of EPA’s on disk or CD ROM, mark the outside Hubbarton Brook, Vermont and New electronic public docket to submit of the disk or CD ROM as CBI and then York, Rutland (VT) and Washington comments to EPA electronically is identify electronically within the disk or (NY); Winooski River/Sunderland EPA’s preferred method for receiving CD ROM the specific information that is Brook, Vermont, Chittendon; Great comments. Go directly to EPA Dockets CBI). Information so marked will not be Chazy River/Corbeau Creek, New York, at http://www.epa.gov/edocket, and disclosed except in accordance with Clinton; and Mallets Bay/Allen Brook, follow the online instructions for procedures set forth in 40 CFR part 2. Vermont, Chittendon. The total acreage submitting comments. Once in the In addition to one complete version of to be treated is 16.7 acres. system, select ‘‘search,’’ and then key in the comment that includes any docket ID number OPP–2003–0080. The information claimed as CBI, a copy of III. What Action is the Agency Taking? system is an ‘‘anonymous access’’ the comment that does not contain the Following the review of the GLFC system, which means EPA will not information claimed as CBI must be application and any comments and data know your identity, e-mail address, or submitted for inclusion in the public received in response to this notice, EPA other contact information unless you docket and EPA’s electronic public will decide whether to issue or deny the provide it in the body of your comment. docket. If you submit the copy that does EUP request for this EUP program, and ii. E-mail. Comments may be sent by not contain CBI on disk or CD ROM, if issued, the conditions under which it e-mail to [email protected], mark the outside of the disk or CD ROM is to be conducted. Any issuance of an Attention: Docket ID Number OPP– clearly that it does not contain CBI. EUP will be announced in the Federal 2003–0080. In contrast to EPA’s Information not marked as CBI will be Register. electronic public docket, EPA’s e-mail included in the public docket and EPA’s IV. What is the Agency’s Authority for system is not an ‘‘anonymous access’’ electronic public docket without prior Taking this Action? system. If you send an e-mail comment notice. If you have any questions about directly to the docket without going CBI or the procedures for claiming CBI, The Agency’s authority for taking this through EPA’s electronic public docket, please consult the person listed under action is under FIFRA section 5. EPA’s e-mail system automatically FOR FURTHER INFORMATION CONTACT. captures your e-mail address. E-mail List of Subjects addresses that are automatically E. What Should I Consider as I Prepare captured by EPA’s e-mail system are My Comments for EPA? Environmental protection, Experimental use permits. included as part of the comment that is You may find the following placed in the official public docket, and suggestions helpful for preparing your Dated: March 31, 2003. made available in EPA’s electronic comments: Janet L. Andersen, public docket. 1. Explain your views as clearly as iii. Disk or CD ROM. You may submit Director, Biopesticides and Pollution possible. Prevention Division, Office of Pesticide comments on a disk or CD ROM that 2. Describe any assumptions that you Programs. you mail to the mailing address used. identified in Unit I.C.2. These electronic 3. Provide copies of any technical [FR Doc. 03–8658 Filed 4–8–03; 8:45 am] submissions will be accepted in information and/or data you used that BILLING CODE 6560–50–S WordPerfect or ASCII file format. Avoid support your views. the use of special characters and any 4. If you estimate potential burden or form of encryption. costs, explain how you arrived at the ENVIRONMENTAL PROTECTION 2. By mail. Send your comments to: estimate that you provide. AGENCY Public Information and Records 5. Provide specific examples to Integrity Branch (PIRIB) (7502C), Office illustrate your concerns. [OPP–2003–0081; FRL–7300–4] of Pesticide Programs (OPP), 6. Offer alternative ways to improve Experimental Use Permit; Receipt of Environmental Protection Agency, 1200 the notice. Application Pennsylvania Ave., NW., Washington, 7. Make sure to submit your DC 20460–0001, Attention: Docket ID comments by the deadline in this AGENCY: Environmental Protection Number OPP–2003–0080. document. Agency (EPA). 3. By hand delivery or courier. Deliver 8. To ensure proper receipt by EPA, ACTION: Notice. your comments to: Public Information be sure to identify the docket ID number

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SUMMARY: This notice announces receipt docket is the collection of materials that copyrighted material, EPA will provide of an application 75437–EUP–E from is available for public viewing at the a reference to that material in the Great Lakes Fishery Commission (GLFC) Public Information and Records version of the comment that is placed in requesting an experimental use permit Integrity Branch (PIRIB), Rm. 119, EPA’s electronic public docket. The (EUP) for the male sea lamprey sex Crystal Mall #2, 1921 Jefferson Davis entire printed comment, including the pheromone 3-ketopetromyzonol sulfate. Hwy., Arlington, VA. This docket copyrighted material, will be available The Agency has determined that the facility is open from 8:30 a.m. to 4 p.m., in the public docket. application may be of regional and Monday through Friday, excluding legal Public comments submitted on national significance. Therefore, in holidays. The docket telephone number computer disks that are mailed or accordance with 40 CFR 172.11(a), the is (703) 305–5805. delivered to the docket will be Agency is soliciting comments on this 2. Electronic access. You may access transferred to EPA’s electronic public application. this Federal Register document docket. Public comments that are electronically through the EPA Internet DATES: Comments, identified by docket mailed or delivered to the docket will be under the ‘‘Federal Register’’ listings at ID number OPP–2003–0081, must be scanned and placed in EPA’s electronic http://www.epa.gov/fedrgstr/. received on or before May 9, 2003. public docket. Where practical, physical An electronic version of the public objects will be photographed, and the ADDRESSES: Comments may be docket is available through EPA’s submitted electronically, by mail, or photograph will be placed in EPA’s electronic public docket and comment electronic public docket along with a through hand delivery/courier. Follow system, EPA Dockets. You may use EPA the detailed instructions as provided in brief description written by the docket Dockets at http://www.epa.gov/edocket/ staff. Unit I. of the SUPPLEMENTARY to submit or view public comments, INFORMATION. access the index listing of the contents C. How and To Whom Do I Submit FOR FURTHER INFORMATION CONTACT: of the official public docket, and to Comments? access those documents in the public Andrew Bryceland, Biopesticides and You may submit comments docket that are available electronically. Pollution Prevention Division (7511C), electronically, by mail, or through hand Once in the system, select ‘‘search,’’ Office of Pesticide Programs, delivery/courier. To ensure proper then key in the appropriate docket ID Environmental Protection Agency, 1200 receipt by EPA, identify the appropriate number. Pennsylvania Ave., NW., Washington, docket ID number in the subject line on DC 20460–0001; telephone number: Certain types of information will not be placed in the EPA Dockets. the first page of your comment. Please (703) 305–6928; e-mail address: ensure that your comments are [email protected]. Information claimed as CBI and other information whose disclosure is submitted within the specified comment SUPPLEMENTARY INFORMATION: restricted by statute, which is not period. Comments received after the close of the comment period will be I. General Information included in the official public docket, will not be available for public viewing marked ‘‘late.’’ EPA is not required to A. Does this Action Apply to Me? in EPA’s electronic public docket. EPA’s consider these late comments. If you This action is directed to the public policy is that copyrighted material will wish to submit CBI or information that in general. This action may, however, be not be placed in EPA’s electronic public is otherwise protected by statute, please of interest to those persons who are or docket but will be available only in follow the instructions in Unit I.D. Do may be required to conduct testing of printed, paper form in the official public not use EPA Dockets or e-mail to submit chemical substances under the Federal docket. To the extent feasible, publicly CBI or information protected by statute. Food, Drug, and Cosmetic Act (FFDCA) available docket materials will be made 1. Electronically. If you submit an or the Federal Insecticide, Fungicide, available in EPA’s electronic public electronic comment as prescribed in this and Rodenticide Act (FIFRA). Since docket. When a document is selected unit, EPA recommends that you include other entities may also be interested, the from the index list in EPA Dockets, the your name, mailing address, and an e- Agency has not attempted to describe all system will identify whether the mail address or other contact the specific entities that may be affected document is available for viewing in information in the body of your by this action. If you have any questions EPA’s electronic public docket. comment. Also include this contact regarding the applicability of this action Although not all docket materials may information on the outside of any disk to a particular entity, consult the person be available electronically, you may still or CD ROM you submit, and in any listed under FOR FURTHER INFORMATION access any of the publicly available cover letter accompanying the disk or CONTACT. docket materials through the docket CD ROM. This ensures that you can be facility identified in Unit I.B.1. EPA identified as the submitter of the B. How Can I Get Copies of this intends to work towards providing comment and allows EPA to contact you Document and Other Related electronic access to all of the publicly in case EPA cannot read your comment Information? available docket materials through due to technical difficulties or needs 1. Docket. EPA has established an EPA’s electronic public docket. further information on the substance of official public docket for this action For public commenters, it is your comment. EPA’s policy is that EPA under docket identification (ID) number important to note that EPA’s policy is will not edit your comment, and any OPP–2003–0081. The official public that public comments, whether identifying or contact information docket consists of the documents submitted electronically or in paper, provided in the body of a comment will specifically referenced in this action, will be made available for public be included as part of the comment that any public comments received, and viewing in EPA’s electronic public is placed in the official public docket, other information related to this action. docket as EPA receives them and and made available in EPA’s electronic Although a part of the official docket, without change, unless the comment public docket. If EPA cannot read your the public docket does not include contains copyrighted material, CBI, or comment due to technical difficulties Confidential Business Information (CBI) other information whose disclosure is and cannot contact you for clarification, or other information whose disclosure is restricted by statute. When EPA EPA may not be able to consider your restricted by statute. The official public identifies a comment containing comment.

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i. EPA Dockets. Your use of EPA’s on disk or CD ROM, mark the outside received in response to this notice, EPA electronic public docket to submit of the disk or CD ROM as CBI and then will decide whether to issue or deny the comments to EPA electronically is identify electronically within the disk or EUP request for this EUP program, and EPA’s preferred method for receiving CD ROM the specific information that is if issued, the conditions under which it comments. Go directly to EPA Dockets CBI). Information so marked will not be is to be conducted. Any issuance of an at http://www.epa.gov/edocket, and disclosed except in accordance with EUP will be announced in the Federal follow the online instructions for procedures set forth in 40 CFR part 2. Register. submitting comments. Once in the In addition to one complete version of IV. What is the Agency’s Authority for system, select ‘‘search,’’ and then key in the comment that includes any Taking this Action? docket ID number OPP–2003–0081. The information claimed as CBI, a copy of system is an ‘‘anonymous access’’ the comment that does not contain the The Agency’s authority for taking this system, which means EPA will not information claimed as CBI must be action is under FIFRA section 5. know your identity, e-mail address, or submitted for inclusion in the public other contact information unless you docket and EPA’s electronic public List of Subjects provide it in the body of your comment. docket. If you submit the copy that does Environmental protection, ii. E-mail. Comments may be sent by not contain CBI on disk or CD ROM, Experimental use permits. e-mail to [email protected], mark the outside of the disk or CD ROM Attention: Docket ID Number OPP– clearly that it does not contain CBI. Dated: April 1, 2003. 2003–0081. In contrast to EPA’s Information not marked as CBI will be Janet L. Andersen, electronic public docket, EPA’s e-mail included in the public docket and EPA’s Director, Biopesticides and Pollution system is not an ‘‘anonymous access’’ electronic public docket without prior Prevention Division, Office of Pesticide system. If you send an e-mail comment notice. If you have any questions about Programs. directly to the docket without going CBI or the procedures for claiming CBI, [FR Doc. 03–8659 Filed 4–8–03; 8:45 am] through EPA’s electronic public docket, please consult the person listed under BILLING CODE 6560–50–S EPA’s e-mail system automatically FOR FURTHER INFORMATION CONTACT. captures your e-mail address. E-mail E. What Should I Consider as I Prepare addresses that are automatically My Comments for EPA? ENVIRONMENTAL PROTECTION captured by EPA’s e-mail system are AGENCY included as part of the comment that is You may find the following placed in the official public docket, and suggestions helpful for preparing your [FRL–7478–4] comments: made available in EPA’s electronic Notice of Proposed Lessee Agreement public docket. 1. Explain your views as clearly as possible. Pursuant to the Comprehensive iii. Disk or CD ROM. You may submit Environmental Response, comments on a disk or CD ROM that 2. Describe any assumptions that you used. Compensation and Liability Act of you mail to the mailing address 1980, as Amended by the Superfund identified in Unit I.C.2. These electronic 3. Provide copies of any technical information and/or data you used that Amendments and Reauthorization Act submissions will be accepted in and the Solid Waste Disposal Act, WordPerfect or ASCII file format. Avoid support your views. 4. If you estimate potential burden or Commonly Referred to as the the use of special characters and any costs, explain how you arrived at the Resource Conservation and Recovery form of encryption. Act of 1976, as Amended by the 2. By mail. Send your comments to: estimate that you provide. 5. Provide specific examples to Hazardous and Solid Waste Public Information and Records illustrate your concerns. Amendments of 1984 (‘‘RCRA’’) Integrity Branch (PIRIB) (7502C), Office 6. Offer alternative ways to improve AGENCY: of Pesticide Programs (OPP), the notice. Environmental Protection Environmental Protection Agency, 1200 7. Make sure to submit your Agency (EPA). Pennsylvania Ave., NW., Washington, comments by the deadline in this ACTION: Notice; request for public DC 20460–0001, Attention: Docket ID document. comment. Number OPP–2003–0081. 8. To ensure proper receipt by EPA, SUMMARY: In accordance with the 3. By hand delivery or courier. Deliver be sure to identify the docket ID number Comprehensive Environmental your comments to: Public Information assigned to this action in the subject Response, Compensation, and Liability and Records Integrity Branch (PIRIB), line on the first page of your response. Act of 1980, as amended by the Office of Pesticide Programs (OPP), You may also provide the name, date, Superfund Amendments and Environmental Protection Agency, Rm. and Federal Register citation. 119, Crystal Mall #2, 1921 Jefferson Reauthorization Act of 1986 Davis Hwy., Arlington, VA, Attention: II. Background (‘‘CERCLA’’), 42 U.S.C. 9601–9675, and Docket ID Number OPP–2003–0081. The GLFC has submitted an the Solid Waste Disposal Act, Such deliveries are only accepted application for an EUP to determine if commonly referred to as the Resource during the docket’s normal hours of the male sea lamprey sex pheromone, 3- Conservation and Recovery Act of 1976, operation as identified in Unit I.B.1. ketopetromyzonol sulfate is as effective as amended by the Hazardous and Solid Waste Amendments of 1984 (‘‘RCRA’’), D. How Should I Submit CBI To the as spermiating male sea lamprey washings in attracting ovulated female 42 U.S.C. 6901–6992k, notice is hereby Agency? sea lampreys. The study is to be given that a proposed Prospective Do not submit information that you conducted in the Ocqueoc River, Lessee Agreement (‘‘Lessee Agreement’’) consider to be CBI electronically Presque County, Michigan with a total associated with a 27-acre parcel of through EPA’s electronic public docket treated acreage of 0.15 acre. property formerly owned and operated or by e-mail. You may claim by Allied-Signal located in Baltimore, information that you submit to EPA as III. What Action is the Agency Taking? Maryland (the ‘‘Property’’), was CBI by marking any part or all of that Following the review of the GLFC executed by the Environmental information as CBI (if you submit CBI application and any comments and data Protection Agency, the Maryland

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Department of the Environment and the Program Coordinator (3RC00), 1650 DATES: The Lead-Based Paint Activities Department of Justice and is now Arch Street, Philadelphia, PA 19103. Program authorization was granted to subject to public comment, after which Comments should reference the ‘‘Allied- the State of North Dakota on September the United States and the State of Signal Prospective Lessee Agreement’’ 26, 2002. Maryland may modify or withdraw their and ‘‘RCRA–03–2003–0088TH,’’ and FOR FURTHER INFORMATION CONTACT: consent if comments received disclose should be forwarded to Suzanne Amanda Hasty, Lead Coordinator, facts or considerations which indicate Canning at the above address. Environmental Protection Agency, that the Lessee Agreement is FOR FURTHER INFORMATION CONTACT: Region VIII, 8P–P3T, 999 18th St., Suite inappropriate, improper, or inadequate. Sheila Briggs-Steuteville (3RC43), 300, Denver, CO 80202–2466; The Lessee Agreement will resolve Senior Assistant Regional Counsel, U.S. telephone: (303) 312–6966; e-mail certain potential EPA claims under Environmental Protection Agency, 1650 address: [email protected]. sections 106 and 107(a) of CERCLA, 42 Arch Street, Philadelphia, PA 19103, SUPPLEMENTARY INFORMATION: U.S.C. 9606 and 9607(a); sections Phone: (215) 814–2468. 3008(h) and 7003 of RCRA, 42 U.S.C. I. General Dated: April 2, 2003. 6928(h) and 6973 and MDE claims A. Does this Notice Apply to Me? under Title 7, Subtitle 2 of the Donald S. Welsh, This notice is directed to the public Environment Article of the Annotated Regional Administrator, Region III. in general. This notice may, however, be Code of Maryland against SBER Harbor [FR Doc. 03–8653 Filed 4–8–03; 8:45 am] of interest to firms and individuals Point, LLC and Harbor Point BILLING CODE 6560–50–P engaged in lead-based paint activities in Development, LLC (the ‘‘Lessees’’). North Dakota. Since other entities may During its operation and ownership of also be interested, the Agency has not the Property, Allied-Signal used the ENVIRONMENTAL PROTECTION attempted to describe all the specific Property for chromium processing AGENCY entities that may be affected by the activities which contributed to notice. If you have any questions chromium contamination in the soil and [OPPT–2002–0080; FRL–7299–7] regarding the applicability of this notice the groundwater at the Property. In June to a particular entity, consult the person 1989, Region III, the MDE and Allied- Lead-Based Paint Activities; State of listed under FOR FURTHER INFORMATION Signal entered into a Consent Decree North Dakota Lead-Based Paint CONTACT. under RCRA under which Allied-Signal Program agreed to conduct an on-site and off-site AGENCY: Environmental Protection B. Summary investigation. As a result of those Agency (EPA). On October 28, 1992, the Housing and investigations, EPA and MDE chose a ACTION: Notice; final approval of the Community Development Act of 1992, remedy for the Site which required State of North Dakota Lead-Based Paint Public Law 102–550, became law. Title Allied-Signal to, among other things, Activities Program. X of that statute was the Residential construct a hydraulic barrier to contain Lead-Based Paint Hazard Reduction Act the contaminated groundwater and SUMMARY: On October 4, 2002, EPA of 1992. The Act amended TSCA (15 conduct perpetual monitoring. received an application from the State of U.S.C. 2601 et seq.) by adding Title IV EPA and MDE have determined that North Dakota requesting authorization (15 U.S.C. 2681–92), titled ‘‘Lead Honeywell, the current owner of the to administer a Program in accordance Exposure Reduction.’’ Property, is successfully completing the with section 402 of the Toxic Section 402 of TSCA (15 U.S.C. 2682) requirements under the Consent Decree. Substances Control Act (TSCA). authorizes and directs EPA to Upon entering a lease with the Lessees, Included in the application was a letter promulgate final regulations governing Honeywell will still be required to signed September 26, 2002, by the lead-based paint activities in target complete and maintain the remedy as Governor of North Dakota, stating that housing, public and commercial provided for under the Consent Decree. the State’s Lead-Based Paint Abatement buildings, bridges and other structures. For fifteen (15) days following the Program is at least as protective of On August 29, 1996 (61 FR 45777) date of publication of this notice, the human health and the environment as (FRL–5389–9), EPA promulgated final Agency will accept written comments the Federal program under TSCA TSCA section 402/404 regulations relating to the proposed Lessee section 402. Also, included was a letter governing lead-based paint activities in Agreement. The Agency’s response to from the Attorney General of North target housing and child-occupied any comments received will be available Dakota, certifying that the laws and facilities (a subset of public buildings). for public inspection at the U.S. regulations of the State provided These regulations are to ensure that Environmental Protection Agency, adequate legal authority to administer individuals engaged in such activities Region III, 1650 Arch Street, and enforce TSCA section 402. North are properly trained, that training Philadelphia, PA 19103. Dakota certifies that its program meets programs are accredited, and that DATES: Comments must be submitted on the requirements for approval of a State individuals engaged in these activities or before April 24, 2003. program under section 404 of TSCA and are certified and follow documented Availability: The proposed Lessee that North Dakota has the legal authority work practice standards. Under section Agreement and additional background and ability to implement the 404 (15 U.S.C. 2684), a State or Indian information relating to the proposed appropriate elements necessary to Tribe may seek authorization from EPA Lessee Agreement are available for enforce the program. Therefore, to administer and enforce its own lead- public inspection at the U.S. pursuant to section 404, the program is based paint activities program. Environmental Protection Agency, deemed authorized as of the date of States and Tribes that choose to apply Region III, 1650 Arch Street, submission. Today’s notice announces for program authorization must submit Philadelphia, PA 19103. A copy of the the authorization of the State of North a complete application to the proposed Lessee Agreement may be Dakota Lead-Based Paint Activities appropriate Regional EPA Office for obtained from Suzanne Canning, U.S. Program to apply in the State of North review. EPA will review those Environmental Protection Agency, Legal Dakota effective September 26, 2002. applications within 180 days of receipt

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of the complete application. To receive requirement of an authorized State or regulations under the Clean Water Act EPA approval, a State or Tribe must Tribal program. governing the use and disposal of demonstrate that its program is at least sewage sludge. As part of this review, III. Withdrawal of Authorization as protective of human health and the EPA commissioned the National environment as the Federal program, Pursuant to TSCA section 404(c), the Research Council (NRC) of the National and provides for adequate enforcement Administrator may withdraw a State or Academy of Sciences to independently (section 404(b) of TSCA, 15 U.S.C. 2684 Tribal lead-based paint activities review the technical basis of the (b)). EPA’s regulations (40 CFR part 745, program authorization, after notice and chemical and pathogen regulations subpart Q) provide the detailed opportunity for corrective action, if the applicable to sewage sludge that is requirements a State or Tribal program program is not being administered or applied to land. In July 2002, the NRC must meet in order to obtain EPA enforced in compliance with standards, published a report entitled ‘‘Biosolids authorization. regulations, and other requirements Applied to Land: Advancing Standards A State may choose to certify that its established under the authorization. The and Practices’’ in response to the EPA’s lead-based paint activities program procedures EPA will follow for the request. meets the requirements for EPA withdrawal of an authorization are Today, the Agency is also announcing authorization, by submitting a letter found at 40 CFR 745.324(i). a strategy explaining how EPA plans to signed by the Governor or the Attorney IV. Congressional Review Act respond to the recommendations in the NRC report. Today’s notice explains the General stating that the program meets The Congressional Review Act, 5 rationale for the strategy and solicits the requirements of section 404(b) of U.S.C. 801 as amended by the Small public comments on the strategy. TSCA. Upon submission of such Business Regulatory Enforcement In addition, EPA is announcing the certification letter, the program is Fairness Act of 1996, generally provides preliminary results of its review of deemed authorized until such time as that before certain actions may take existing sewage sludge regulations EPA disapproves the program effect, the agency promulgating the under the Clean Water Act. At this time, application or withdrawals the program action must submit a report, which EPA has not identified any additional authorization. includes a copy of the action, to each toxic pollutants that warrant regulation In accordance with 40 CFR House of the Congress and to the in sewage sludge. The next step in 745.324(d), ‘‘Program Certification,’’ the Comptroller General of the United identifying chemicals that may warrant Governor of North Dakota submitted a States. EPA will submit a report regulation is to conduct a screening self-certification letter to the EPA containing this action and other analysis of those chemicals for which Administrator on September 26, 2002, required information to the U.S. Senate, adequate data and analytical methods certifying that the State program meets the U.S. House of Representatives, and are available and for which there is the requirements contained in 40 CFR the Comptroller General of the United evidence that they may occur in sewage 745.324(e)(2)(i) and (e)(2)(ii). Included States prior to publication of this sludge. EPA plans to complete this in the application was a letter from the document in the Federal Register. This screening analysis by January 2004. The Attorney General of North Dakota, action is not a ‘‘major rule’’ as defined terms ‘‘sewage sludge’’ and ‘‘biosolids’’ certifying that the laws and regulations by 5 U.S.C. 804(2). of the State provided adequate legal are used interchangeably in this notice. authority to administer and enforce List of Subjects DATES: EPA requests comments on all TSCA section 402. Environmental protection, Hazardous aspects of this notice. If you wish to Notice of North Dakota’s application, substances, Lead, Reporting and submit comments on this action, you a solicitation for public comment recordkeeping requirements. must do so by July 8, 2003. regarding the application was published Dated: March 28, 2003. ADDRESSES: Send your comments to: in the Federal Register of January 8, Robert E. Roberts, Water Docket, Environmental Protection 2003 (68 FR 1059) (FRL–7282–8). As Regional Administrator, Region VIII. Agency, Mailcode: 4101T, 1200 determined by EPA’s review and [FR Doc. 03–8657 Filed 4–8–03; 8:45 am] Pennsylvania Ave., NW., Washington, assessment, North Dakota’s application DC 20460, Attention Docket ID No. OW– BILLING CODE 6560–50–S successfully demonstrated that the 2003–0006. Comments may also be State’s Lead-Based Paint Activities submitted electronically or through Program achieves the protectiveness and ENVIRONMENTAL PROTECTION hand delivery/courier. Follow the enforcement criteria, as required for AGENCY detailed instructions for providing Federal authorization. Furthermore, no comments in section B of the public comments were received [FRL –7478–7] SUPPLEMENTARY INFORMATION section. regarding North Dakota’s application. Standards for the Use or Disposal of FOR FURTHER INFORMATION CONTACT: Therefore, as of September 26, 2002, the Arleen Plunkett, U.S. Environmental State of North Dakota is authorized to Sewage Sludge; Agency Response to the National Research Council Report Protection Agency, Office of Water, administer and enforce the lead-based Health and Ecological Criteria Division paint program under TSCA section 402. on Biosolids Applied to Land and the Results of EPA’s Review of Existing (4304T), 1200 Pennsylvania Avenue, II. Federal Overfiling Sewage Sludge Regulations NW., Washington, DC 20460. (202) 566– 1119. [email protected]. TSCA section 404(b) (15 U.S.C. AGENCY: Environmental Protection SUPPLEMENTARY INFORMATION: 2684(b)) makes it unlawful for any Agency. person to violate, or fail or refuse to ACTION: Notice, with request for I. Additional Docket Information comply with, any requirement of an comment. approved State or Tribal program. A. How Can I Get Copies of This Therefore, EPA reserves the right to SUMMARY: The Environmental Protection Document and Other Related exercise its enforcement authority under Agency is providing notice and Information? TSCA against a violation of, or a failure requesting public comment on the 1. Docket. EPA has established an or refusal to comply with, any Agency’s preliminary review of official public docket for this action

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under Docket ID No. OW–2003–0006. other information whose disclosure is EPA may not be able to consider your The official public docket consists of the restricted by statute. When EPA comment. documents specifically referenced in identifies a comment containing i. EPA Dockets this action, any public comments copyrighted material, EPA will provide received, and other information related a reference to that material in the Your use of EPA’s electronic public to this action. Although a part of the version of the comment that is placed in docket to submit comments to EPA official docket, the public docket does EPA’s electronic public docket. The electronically is EPA’s preferred method not include Confidential Business entire printed comment, including the for receiving comments. Go directly to Information (CBI) or other information copyrighted material, will be available EPA Dockets at http://www.epa.gov/ whose disclosure is restricted by statute. in the public docket. edocket, and follow the online The official public docket is the Public comments submitted on instructions for submitting comments. collection of materials that are available computer disks that are mailed or Once in the system, select ‘‘search,’’ and for public viewing at the Water Docket delivered to the docket will be then key in Docket ID No. OW–2003– in the EPA Docket Center, (EPA/DC) transferred to EPA’s electronic public 0006. The system is an ‘‘anonymous EPA West, Room B102, 1301 docket. Public comments that are access’’ system, which means EPA will Constitution Ave., NW., Washington, mailed or delivered to the Docket will not know your identity, e-mail address, DC. The EPA Docket Center Public be scanned and placed in EPA’s or other contact information unless you Reading Room is open from 8:30 a.m. to electronic public docket. Where provide it in the body of your comment. 4:30 p.m., Monday through Friday, practical, physical objects will be excluding legal holidays. The telephone photographed, and the photograph will ii. E-mail number for the Public Reading Room is be placed in EPA’s electronic public Comments may be sent by electronic (202) 566–1744, and the telephone docket along with a brief description mail (e-mail) to [email protected], number for the Water Docket is (202) written by the docket staff. Attention Docket ID No. OW–2003– 566–2426. For additional information about 0006. In contrast to EPA’s electronic 2. Electronic Access. You may access EPA’s electronic public docket visit EPA public docket, EPA’s e-mail system is this Federal Register document Dockets online or see 67 FR 38102, May not an ‘‘anonymous access’’ system. If electronically through the EPA Internet 31, 2002. you send an e-mail comment directly to under the ‘‘Federal Register’’ listings at B. How and to Whom Do I Submit the Docket without going through EPA’s http://www.epa.gov/fedrgstr/. Comments? electronic public docket, EPA’s e-mail An electronic version of the public system automatically captures your e- docket is available through EPA’s You may submit comments electronically, by mail, or through hand mail address. E-mail addresses that are electronic public docket and comment automatically captured by EPA’s e-mail system, EPA Dockets. You may use EPA delivery/courier. To ensure proper receipt by EPA, identify the appropriate system are included as part of the Dockets at http://www.epa.gov/edocket/ comment that is placed in the official to submit or view public comments, docket identification number in the public docket, and made available in access the index listing of the contents subject line on the first page of your EPA’s electronic public docket. of the official public docket, and to comment. Please ensure that your access those documents in the public comments are submitted within the iii. Disk or CD ROM docket that are available electronically. specified comment period. Comments You may submit comments on a disk Once in the system, select ‘‘search,’’ received after the close of the comment or CD ROM that you mail to the mailing then key in the appropriate docket period will be marked ‘‘late.’’ EPA is not address identified in section B.2. These identification number. required to consider late comments. Certain types of information will not electronic submissions will be accepted 1. Electronically be placed in the EPA Dockets. in WordPerfect or ASCII file format. Information claimed as CBI and other If you submit an electronic comment Avoid the use of special characters and information whose disclosure is as prescribed below, EPA recommends any form of encryption. restricted by statute, which is not that you include your name, mailing 2. By Mail. Send your comments to: included in the official public docket, address, and an e-mail address or other Water Docket, Environmental Protection will not be available for public viewing contact information in the body of your Agency, Mailcode: 4101T, 1200 in EPA’s electronic public docket. EPA’s comment. Also, include this contact Pennsylvania Ave., NW., Washington, policy is that copyrighted material will information on the outside of any disk DC 20460, Attention Docket ID No. not be placed in EPA’s electronic public or CD ROM you submit, and in any OW–2003–0006. docket but will be available only in cover letter accompanying the disk or 3. By Hand Delivery or Courier. printed, paper form in the official public CD ROM. This ensures that you can be Deliver your comments to: EPA Docket docket. Although not all docket identified as the submitter of the Center, (EPA/DC) EPA West, Room materials may be available comment and allows EPA to contact you B102, 1301 Constitution Ave., NW., electronically, you may still access any in case EPA cannot read your comment Washington, DC 20460, Attention of the publicly available docket due to technical difficulties or needs Docket ID No. OW–2003–0006. Such materials through the docket facility further information on the substance of deliveries are only accepted during the identified in section A.1. your comment. EPA’s policy is that EPA Docket’s normal hours of operation as For public commenters, it is will not edit your comment, and any identified in section A.1. important to note that EPA’s policy is identifying or contact information C. What Should I Consider as I Prepare that public comments, whether provided in the body of a comment will My Comments for EPA? submitted electronically or in paper, be included as part of the comment that will be made available for public is placed in the official public docket, You may find the following viewing in EPA’s electronic public and made available in EPA’s electronic suggestions helpful for preparing your docket as EPA receives them and public docket. If EPA cannot read your comments: without change, unless the comment comment due to technical difficulties 1. Explain your views as clearly as contains copyrighted material, CBI, or and cannot contact you for clarification, possible.

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2. Describe any assumptions that you POTW-Publicly Owned Treatment person from disposing of sewage sludge used. Works from publicly owned treatment works 3. Provide any technical information PFRP—Processes to Further Reduce (POTW) or other treatment works and/or data you used that support your Pathogens treating domestic sewage for any use views. PSRP—Processes to Significantly except in compliance with regulations 4. If you estimate a potential burden Reduce Pathogens promulgated under section 405. or costs, explain how you arrived at QA/QC—Quality Assurance/Quality Section 405(d) calls for two rounds of your estimate. Control sewage sludge regulations and sets 5. Provide specific examples to QMRA—Quantitative Microbial Risk deadlines for promulgation. In the first illustrate your concerns. Assessment round, EPA was to establish numerical 6. Offer alternatives. RME—Reasonable Maximum Exposure limits and management practices for 7. Make sure to submit your SSI—Sewage Sludge Incinerator those toxic pollutants which, based on comments by the comment period UA—University of Arizona, Water ‘‘available information on their toxicity, deadline identified. Quality Center persistence, concentration, mobility, or 8. To ensure proper receipt by EPA, UCAL—University of California potential for exposure, may be present identify the appropriate docket UPA—University of Pennsylvania in sewage sludge in concentrations that identification number in the subject line USDA—United States Department of may adversely affect public health or on the first page of your response. It Agriculture the environment.’’ CWA section would also be helpful if you provided WEF—Water Environment Federation 405(d)(2)(A). The second round is to the name, date, and Federal Register WERF—Water Environmental Research address toxic pollutants not regulated in citation related to your comments. Foundation the first round ‘‘which may adversely affect public health or the II. Abbreviations and Acronyms Used Table of Contents environment.’’ CWA section AMSA—Association of Metropolitan I. What is the Legal Background of the 405(d)(2)(B). Sewerage Agencies Standards for the Use or Disposal of EPA did not meet the timetable in BDMS—Biosolids Data Management Sewage Sludge? section 405(d) for promulgating the first System II. What Requirements are Included in the round of regulations, and a citizen’s suit CAFO—Concentrated Animal Feeding Standards for the Use or Disposal of was filed to require EPA to fulfill this Operations Sewage Sludge (40 CFR Part 503)? mandate, (Gearhart v. Reilly, Civ. No. CDC—Centers for Disease Control and III. What is the Purpose of Today’s Notice? 89–6266– Prevention IV. What was EPA’s Charge to the National Research Council? HO (D. Ore.)). A consent decree was CFR—Code of Federal Regulations entered by the court in this case, CWA—Clean Water Act V. What Were the National Research Council’s Major Findings and establishing schedules for both rounds EC—European Community Recommendations Concerning Land of sewage sludge rules. EPA EMS—Environmental Management Application of Biosolids? promulgated the first rule in 1993, 40 System VI. What Process did EPA Use to Address the CFR part 503. 58 FR 9248 (Feb. 19, EPA—U.S. Environmental Protection NRC recommendations? 1993) (‘‘Round One’’). For the second Agency VII. EPA’s Strategy for Responding to the round (‘‘Round Two’’), EPA identified EQ—Exceptional Quality NRC Recommendations 31 pollutants and pollutant categories EU—European Union VIII.EPA Responses to the NRC not regulated in Round One that EPA FTIR—Fourier Transform Infrared Recommendations by Category was considering for regulation. In GC/MS—Gas Chromatography/Mass IX. How did EPA Conduct the Review of Part November 1995, EPA narrowed the Spectrometry 503 Regulations under the CWA Section original list of 31 pollutants to two IAC—EPA Intra-Agency Committee for 405(d)(2)(C)? pollutant groups for the second round Biosolids X. What are the Primary Issues for Public ICMA—International City/County Comment? rulemaking: polychlorinated dibenzo-p- XI. References Management Association dioxins/dibenzofurans (PCDDs/Fs) and IRIS—Integrated Risk Information I. What Is the Legal Background of the dioxin-like coplanar polychlorinated biphenyls (PCBs) (USEPA, 1996). The System Standards for the Use or Disposal of consent decree required the ISG—Information Sharing Group Sewage Sludge? LGEAN—Local Government Administrator to sign a notice for EPA promulgated Standards for the Environmental Assistance Network publication proposing Round Two Use or Disposal of Sewage Sludge (40 NBP—National Biosolids Partnership regulations no later than December 15, NEBRA—New England Biosolids and CFR part 503) under section 405(d) and 1999, and to sign a notice taking final Residuals Association (e) of the Clean Water Act (CWA), 33 action on the proposal no later than NPDES—National Pollutant Discharge U.S.C. section 1345(d), (e), as amended December 15, 2001. (Gearhart v. Elimination System by the Water Quality Act of 1987. In Whitman, Civ. No. 89–6266–HO (D. NODA—Notice of Data Availability these amendments to section 405 of the Ore.)). NRC—National Research Council CWA, Congress, for the first time, set On December 15, 1999, the NSSS—National Sewage Sludge Survey forth a comprehensive program for Administrator signed a proposal to ORD—Office of Research and reducing the potential environmental establish numerical limits for dioxins, Development risks and maximizing the beneficial use dibenzofurans, and co-planar PCBs OW—Office of Water of sewage sludge. As amended, section (‘‘dioxins’’) in sewage sludge that is PA—State of Pennsylvania 405(d) of the CWA requires EPA to applied to the land and proposed not to PCBs—Polychlorinated biphenyls establish numerical limits and regulate dioxins in sewage sludge that is PCDDs/Fs—Polychlorinated dibenzo-p- management practices that protect disposed of in a surface disposal unit or dioxins/dibenzofurans public health and the environment from fired in a sewage sludge incinerator. 64 PCS—Permit Compliance System the reasonably anticipated adverse FR 72045 (December 23, 1999). On PEC—EPA’s Pathogen Equivalency effects of toxic pollutants in sewage December 21, 2001, the Administrator Committee sludge. Section 405(e) prohibits any gave final notice of EPA’s determination

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that numerical standards or limits for five metallic pollutants in monitoring/certifications have occurred. management practices are not warranted sewage sludge fired in a SSI and Finally, the larger sewage sludge for dioxins in sewage sludge that are adopted standards under the Clean Air preparers and land appliers must report disposed of at a surface disposal unit or Act for two additional metallic this information to the permitting incinerated in a sewage sludge pollutants. The Agency has also authority at least annually. incinerator. 66 FR 66228 (December 21, established performance standards for EPA has amended part 503 several 2001). In that notice, EPA also SSIs through an operational standard for times since its initial publication in announced that a final action on the total hydrocarbons or carbon monoxide February 1993. Following promulgation proposal to amend the Standards for the emissions that controls numerous of the Round One rule, several petitions Use or Disposal of Sewage Sludge for organic compounds found in the for review were filed challenging sewage sludge that is applied to the land emissions of sewage sludge incinerators. various aspects of the rule. In one would be published at a later date. The Part 503 also allows disposal of sewage petition, several mining and chemical consent decree in Gearhart v. Whitman sludge in a municipal solid waste concerns challenged the land was amended to extend the deadline for landfill in accordance with 40 CFR part application molybdenum limits. EPA final action on the land application 258. In addition, the final rule requires amended the part 503 numerical Round Two rulemaking from the monitoring, record keeping, and standards for molybdenum to delete the original date of December 15, 2001, to reporting. Standards apply to publicly cumulative loading rate, annual loading a new date of October 17, 2003. and privately-owned treatment works rate, and the pollutant concentration for On June 12, 2002 at 67 FR 40554, EPA that generate or treat domestic sewage molybdenum in sewage sludge to be published a Notice of Data Availability sludge and to anyone who uses or land-applied. 59 FR 9095 (February 25, (NODA) containing new information disposes of sewage sludge. 1994). The ceiling concentration value relating to dioxins in land-applied The part 503 Standards consist of six for molybdenum was retained. Also, in sewage sludge and requested public elements designed to work together to that Federal Register notice, EPA added comments. Currently, EPA is evaluating protect human health and the continuous monitoring of carbon the public comments received on the environment. These elements are (1) monoxide as an alternative to NODA and will consider these numerical limits for certain pollutants, continuous monitoring of total comments in formulating a final action (2) management practices, (3) hydrocarbons in the sewage sludge on dioxins in land-applied Sewage operational standards, (4) monitoring, incinerator requirements. In another sludge by October 17, 2003. (5) record keeping, and (6) reporting. case, Leather Industries of America v. As an example, the land application EPA, 40 F.3d 392 (D.C. Cir. 1994), the II. What Requirements Are Included in provisions require a sewage sludge court remanded several of the land the Standards for the Use or Disposal preparer to gather information on the application requirements. As a result of of Sewage Sludge (40 CFR Part 503)? nutrient content of the sewage sludge that decision, EPA deleted all numerical As noted above, CWA Section and pass this information along to the standards for chromium in sewage 405(d)(2)(A) required the first round of land applier in order for the land sludge to be land-applied and adjusted regulation to be based on ‘‘available applier to be able to apply the sewage the Table 3 limit for selenium. 60 FR information on [the] toxicity, sludge at a suitable agronomic rate. 54764 (October 25, 1995). EPA is persistence, concentration, mobility, or Numerical limitations for land-applied considering further amendments to potential for exposure’’ of toxic sludge are pollutant concentrations in address the issues remaining from the pollutants in sewage sludge. EPA sewage sludge or cumulative or annual partial remand, as well as other issues. published the Round One standards (40 loading rates, based on multi-pathway EPA most recently amended Part 503 to CFR Part 503) on February 19, 1993. exposure analyses and risk assessments make a number of technical These regulations established to protect public health. Management amendments, provide regulatory requirements for the final use and practices include requirements, such as flexibility, and make the sewage sludge disposal of sewage sludge when it is: (1) how the sewage sludge is to be placed incinerator standards self- Applied to the land for a beneficial on the land or otherwise managed in the implementing. 64 FR 42552 (August 4, purpose, including in home gardens, (2) environment. An example is the 1999). placed in a surface disposal site, prohibition against applying sewage For a detailed discussion of the Part including biosolids-only landfills, and sludge to land closer than 10 meters 503 Rule, see A Plain English Guide to (3) incinerated. from waters of the United States. the EPA Part 503 Biosolids Rule (1994), For land application, Part 503 set Operational standards are technology which is available as stated in the numerical limits for nine heavy metals requirements such as process ADDRESSES section of the preamble. A in sewage sludge, established descriptions and performance copy of the Plain English Guide is operational standards (described below) requirements to reduce or eliminate available at the website address http:// to reduce or eliminate pathogens in pathogens from sewage sludge and www.epa.gov/owm/mtb/biosolids/ sewage sludge and to reduce vector reduce vector attraction. These, together 503pe/index.htm. attraction, and required management with required crop harvesting practices to restrict the application rate restrictions and site controls, constitute III. What Is the Purpose of Today’s and placement of sewage sludge on the the approach for the control of Notice? land. Regarding surface disposal, Part pathogens in sewage sludge. Section 405(d)(2)(C) of the CWA calls 503 set numerical limits for three metals Monitoring of chemicals and on EPA to review the existing sewage in sewage sludge, established pathogens in sewage sludge and sludge regulations in part 503 at least requirements for the placement and certification of certain actions by the every two years for the purpose of management of a surface disposal site, preparer or land applier must be identifying additional toxic pollutants and established operational standards to performed at a frequency commensurate in sewage sludge and promulgating reduce or eliminate pathogens in sewage with the annual amount of land-applied regulations for such pollutants sludge and to reduce vector attraction. sewage sludge. Records must be kept of consistent with the requirements of For incineration in a sewage sludge these monitoring and certification section 405(d). Over the past decade, incinerator (SSI), Part 503 establishes activities at the locations where the questions have been raised over the

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adequacy of the chemical and pathogen default assumptions used in the risk chemical and pathogen standards are standards for protecting human health. assessments are appropriate, and (e) supported by current scientific data and To help address the human health whether the calculations used to set risk assessment methods, (2) concerns and the requirement for pollutant limits are appropriate. demonstrate effective enforcement of periodical reassessment of the 2. Review the current standards for part 503, and (3) validate the Standards for Use or Disposal of Sewage pathogen reduction or elimination in effectiveness of biosolids management Sludge, the Agency commissioned the biosolids and their adequacy for practices. The NRC report focused on NRC to independently review the protecting public health. Consider (a) identifying how current risk assessment technical basis of the chemical and whether all appropriate pathogens were practices and knowledge regarding pathogen regulations. The NRC study considered in establishing the chemical pollutants and pathogens in took place between January 2001 and standards, (b) whether enough biosolids can be used to update and June 2002. In July 2002, the NRC information on infectious dose and strengthen the scientific basis and published a report entitled, ‘‘Biosolids environmental persistence exists to credibility of EPA’s biosolids Applied to Land: Advancing Standards support current control approaches for regulations. and Practices’’ in response to EPA’s pathogens, (c) risks from exposure to The NRC report contains four request. For a copy of the full NRC pathogens found in biosolids, and (d) overarching recommendations: (1) Use report, visit our Web site at http:// new approaches for assessing risks to improved risk assessment methods to www.epa.gov/ost/biosolids/nas/ human health from pathogens in better establish standards for chemicals complete.pdf. The NRC identified a biosolids. and pathogens, (2) conduct a new need to update the scientific basis of 3. Explore whether approaches for national survey of chemicals and Part 503 and provided approximately 60 conducting pathogen risk assessment pathogens in biosolids, (3) establish an recommendations. can be integrated with those for approach to human health In an agreement with the parties in chemical risk assessment. If appropriate, investigations, and (4) increase the Gearhart v. Whitman, EPA agreed to recommend approaches for integrating resources devoted to EPA’s biosolids publish a notice in the Federal Register pathogen and chemical risk program. These four overarching stating how it will respond to the NRC assessments. recommendations are discussed in report recommendations and to seek The NRC report, ‘‘Biosolids Applied detail and supplemented by 53 public comments on its planned to Land: Advancing Standards and individual recommendations contained response. EPA also agreed to review Practices,’’ described the work of the in Chapters 2–6 of the NRC report. publicly available information for the committee, stating that ‘‘the committee VI. What Process Did EPA Use To purpose of identifying additional toxic searched for evidence on human health Address the NRC Recommendations? pollutants in biosolids and to publish a effects related to biosolids exposure’’ in notice providing the results of the its review of the risk assessments and Upon the release of the report, EPA review and seek public comment. technical data used by EPA to establish established an Intra-Agency Committee Today’s notice fulfills this agreement. the chemical and pathogen standards (IAC) to respond to the and the management practices recommendations in the NRC report and IV. What Was EPA’s Charge to the contained in part 503. The report noted begin review of the existing Part 503 National Research Council? that ‘‘the committee did not attempt to regulations to identify additional toxic EPA asked the NRC to conduct an determine whether the approaches used pollutants that may warrant future independent evaluation of the by EPA to set the 1993 biosolids regulation, pursuant to section regulations and standards for chemical standards were appropriate at the time 405(d)(2)(C). The IAC is comprised of pollutants and pathogens in biosolids of their development, and the EPA representatives from a cross-section that are land-applied. Specifically, the committee’s findings and of environmental program offices that NRC was asked to focus on the recommendations should not be are involved or interested in the adequacy and appropriateness of the construed as either criticism or approval biosolids program. risk assessment methods and data used of the standards issued at that time.’’ The IAC first developed an approach by the Agency in setting regulatory for responding to the NRC report and requirements to protect human health. V. What Were the National Research conducting the section 405(d)(2)(C) The NRC convened the Committee on Council’s Major Findings and review of existing regulations. Activities Toxicants and Pathogens in Biosolids Recommendations Concerning Land for responding to the NRC report Applied to Land (‘‘the committee’’), Application of Biosolids? included developing a matrix to identify which conducted and prepared a final The NRC committee concluded that and track each recommendation, report. The Statement of Tasks included ‘‘there is no documented scientific grouping the recommendations into the following: evidence to indicate that the part 503 eight categories based on subject area, 1. Review the risk assessment rule has failed to protect human evaluating the recommendations methods and data used to establish health,’’ but additional scientific work is individually and establishing priorities, concentration limits for chemical needed to reduce persistent uncertainty drafting initial responses by category, pollutants in biosolids to determine about the potential for adverse human and developing a strategy to carry out whether they are the most appropriate health effects from exposure to the activities identified in response to approaches. Consider the NRC’s biosolids. The committee recognized the NRC recommendations. The previous (1996) review and determine that land application of biosolids is a approach for reviewing existing whether that report’s recommendations widely used, practical option for regulations to identify additional toxic have been appropriately addressed. managing the large volume of biosolids pollutants that may warrant regulation, Consider (a) how the relevant chemical generated at waste water treatment pursuant to section 405(d)(2)(C), is pollutants were identified, (b) whether plants that otherwise would need to be described in Section IX of this notice. all relevant exposure pathways were disposed of at landfills or by As stated above, the IAC first identified, (c) whether exposure incineration. The committee also prepared a matrix (Compilation of analyses, particularly from indirect identified a need to update the scientific National Research Council (NRC) exposures, are realistic, (d) whether the basis of part 503 to (1) ensure that the Recommendations on Biosolids and

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EPA Responses and Activities, USEPA 7. Conduct a dialogue with other the Environmental Protection Agency’’ 2002a) of all of the recommendations health-based Federal agencies, such as USEPA 2002b). These guidelines stress contained in the NRC report (NRC CDC, on the possibility of cooperatively that information disseminated by EPA 2002). The matrix ensured that all tracking incident reports and should adhere to a basic standard of recommendations were identified. Once investigating whether adverse human quality, including objectivity, utility, in the matrix, recommendations that health outcomes can be associated with and integrity. were found to be similar in subject biosolids exposure. The results could EPA has developed this notice using matter and intent were placed in a help the Agency identify research gaps its best estimate of FY 2003 resources, framework to facilitate evaluation. and, if appropriate, the need for a more which are not finalized, and based on The Agency categorized the 57 comprehensive research plan. the President’s FY 2004 budget. The recommendations (four overarching and These activities would be aimed at Agency has assumed the same level of 53 specific) into eight categories: (1) implementing NRC recommendations funding for future years, as is typically Survey, (2) Exposure, (3) Risk for reducing the potential for public done. Assessments, (4) Methods Development, health impact and updating the VIII. EPA Responses to the NRC (5) Pathogens, (6) Human Health scientific basis of Part 503. Recommendations by Category Studies, (7) Regulatory Activities, and Major Longer-Term Goals and Future (8) Biosolids Management. EPA’s Priorities (FY05 and Beyond) A. Survey response and planned activities are 1. Summary of Survey-Related NRC presented on a category-by-category The Agency’s proposed long-term Report Recommendations basis. biosolids activities depend on results of activities conducted in FY03/FY04 and The NRC recommended that the VII. EPA’s Strategy for Responding to available resources. The following Agency conduct a new national survey the NRC Recommendations? priority areas are aimed at of chemicals and pathogens in biosolids. EPA has identified three main implementing recommendations for A survey may provide feedback for objectives for attaining a better reducing the potential for public health updating the science and technology of understanding of biosolids and reducing impact: biosolids applied to land. These data the potential for, or reducing the 1. Continue program implementation would then be used to identify uncertainty related to, human health (regulatory, compliance, and pathogens and additional chemicals for impact: (1) Update the scientific basis of enforcement). potential regulation and possibly Part 503 by conducting research in 2. Update the scientific basis of Part deregulate those that are not, or no priority areas, (2) strengthen the 503 by using FY03/04 research or by longer, found. The NRC recommended biosolids program by evaluating results conducting research in priority areas. several components in designing a new 3. Strengthen the biosolids program of completed, ongoing, or planned national survey, including collecting by incorporating results of completed, studies both within and outside EPA, data from State program databases, ongoing, or planned research activities and (3) continue ongoing activities for determining the adequacy of analytical both within and outside EPA to possibly enhancing communication with outside detection methods and limits to support associations and with the public. include: • Quantitative microbial risk risk assessment, evaluating chemicals Major Short-Term Goals and Priority assessment. eliminated previously due to lack of Actions During FY03 and FY04 • Improved understanding of data (e.g., toxicity or exposure) and new exposure pathways/scenarios. chemical categories (e.g., odorants, Over the next two years, subject to • Molecular tracking study. surfactants and pharmaceuticals) not available resources, the Agency 4. Continue activities to establish previously evaluated. proposes to pursue biosolids activities partnerships and communicate more Further, the NRC recommended in the following priority areas: effectively with other public health- monitoring environmental media, 1. Continue program implementation based agencies, outside associations and surveying for pathogens in both raw (regulatory, compliance, and the public. sewage sludge and treated sewage enforcement). There is considerable relevant work sludge managed through the various 2. Evaluate the state-of-the-science being conducted by others outside of processes recommended in Part 503, and revise risk assessment EPA that may help inform and respond assessing multiple species of certain methodologies, as appropriate. to the NRC recommendations. Much of metals (e.g., mercury and arsenic) that 3. Review available data, track the external work that relates directly to have different toxicity profiles for ongoing studies by researchers outside certain NRC recommendations is human health, including infants and of EPA, and identify information gaps. discussed in this notice and is being children, and analyzing a broad Initiate further field studies as needed. used to improve the Agency’s biosolids spectrum of pathogens in biosolids or 4. Continue ongoing/planned program. environmental media adjacent to final activities relative to exposure, risk The Agency’s approach also includes use or disposal sites. assessment, biosolids management, and promoting policy and procedural In addition, the NRC recommended analytical methods development. guidance for ensuring and maximizing that the Agency verify the adequacy of 5. Determine what pollutants, if any, the quality of the information treatment and management practices. warrant further regulation under the disseminated. Completed studies and For example, to verify that Class A and CWA. ongoing research, once compiled, will B (as described in Part 503) treatment 6. Design and begin conducting a be reviewed and evaluated for their processes perform as assumed by targeted survey that uses information contribution to EPA’s biosolids program engineering and design principles, EPA obtained from published pollutant in accordance with Information Quality could determine pathogen density and occurrence and effects data, State Guidelines (expressed in ‘‘Guidelines elimination across treatment processes occurrence data bases, and input for Ensuring and Maximizing the in biosolids and environmental media received during the public comment Quality, Objectivity, Utility, and over time and examine management period. Integrity of Information Disseminated by practices to ensure that risk-assessment

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principles are effectively translated into study of biosolids addition to soil and B. Exposure practice. the potential effects on soil 1. Summary of Exposure NRC microbiology. The University of Arizona 2. The Agency’s Response to the Survey Recommendations is conducting research on airborne Category pathogen exposure at various times and The NRC made recommendations on How EPA Plans To Address NRC Survey distance from biosolids application how current exposure information and Recommendations sites. Within the next six to nine updated conceptual exposure models The Agency believes that a months, the Agency plans to review and can be used to update and strengthen comprehensive survey of pollutants in assess such studies for their the scientific basis of the chemical and biosolids may provide useful contribution in determining the technology-based pathogen standards. information, but it is not likely the most potential for exposure and adverse This category also includes pragmatic survey option available at this human health impact from land-applied recommendations to evaluate exposure time. EPA has developed a proposed biosolids. for the reasonable maximum exposure survey approach based on experience Studies: Ongoing EPA studies address (RME) individual, updating fate and gained from the 1988 National Sewage many technical uncertainties related to transport models that might affect Sludge Survey (NSSS), limitations of pollutants in biosolids. For example, the exposure estimates, and conducting pre- available analytic methods, knowledge adequacy of current analytical methods planned exposure studies under certain of effects and routes of exposure, and for selected priority pathogens and the situations for specific exposure groups. suggestions by the NRC, among other development and/or validation of new 2. The Agency’s Response to the factors (see Planned Strategy for the methods are also being studied. In Exposure Category Survey Category below). The 1988 NSSS addition, field studies are being used to How EPA Plans To Address NRC was ultimately limited in utility by provide site-specific occurrence data. Exposure Recommendations shortcomings in available analytical While study emphasis is being placed methods and limited information of on pathogens to address areas of Understanding human exposure to pollutant effects and/or means of uncertainty and public interest, selected chemicals and pathogens, including the exposure. While some advances in these chemicals are also being addressed to concentrations and fate and transport areas have been made since 1988, these help determine significant issues and through important exposure pathways, same limitations still exist for many identify information gaps that remain to is key for risk assessments supporting pollutants, especially for pathogens and be addressed in these areas. the Part 503 rule. As discussed below in many of the new or emerging chemicals the Risk Assessment category, the identified by the NRC. Therefore, EPA Planned Strategy for Designing a Agency plans to use a risk assessment has concluded that a less Targeted Survey framework to evaluate the priorities for comprehensive, more targeted, survey, During the next fiscal year the Agency reassessing or updating underlying to help fill data gaps and inform plans to initiate or continue Studies components (including exposure decisions regarding further studies, may devoted to: assumptions) of previously conducted risk assessments. The Agency plans to be more useful to address uncertainties 1. Methods development and/or use this information to determine if new highlighted by the NRC. Information validation studies for enteric viruses exposure and risk calculations may be developed by national and international and helminth ova (see Methods warranted for pollutants not previously experts on pathogens and toxic Development). chemicals may help produce a better assessed. Such an evaluation would informed survey design. The Agency 2. Continuation and/or expansion of include a review of the exposure believes that using such information field studies to determine information used in the Round 1 and may produce more valuable results than environmental contaminant occurrence Round 2 rules in light of new exposure conducting a comprehensive national at selected sites (see Methods information. survey at this time. EPA is first planning Development and Pathogens Categories). To conduct this activity, the Agency to develop and initiate a targeted survey In addition, during the next 18 to 24 plans to first collect and review after considering the following sources months, EPA is proposing to design a currently available exposure of information: targeted approach for a survey of information from published literature, Available data: The Agency has pollutants that occur in sewage sludge. Federal and State databases, the NRC conducted a biosolids literature search New and existing information from report, and other relevant sources. The and is reviewing the information for sources such as relevant published Agency anticipates that some of the relevant data on chemicals and pollutant occurrence and effects data, NRC recommendations regarding pathogens in biosolids. The literature State occurrence databases, and input exposure may be addressed in newly search includes topics related to a received during the public comment available information, while others may survey of chemicals and pathogens in period will be used to help in the require completion of ongoing studies. biosolids, management practices, and development of the proposed survey. The Agency plans to review currently treatment efficacy. This information To ensure the survey provides available exposure information to help obtained may also assist EPA in meaningful results and the effective use identify data gaps and to inform responding to other NRC of limited resources, EPA is considering decisions about future risk assessments recommendations. For example, the restudying some of the pollutants that and the need for additional exposure Agency plans to use available were studied in the 1988–1989 NSSS. studies. information to prioritize future research EPA is also considering including some In the mid-1990’s, EPA conducted and, if necessary, modify biosolids new and emerging chemicals, taking research on the land application of management practices to reduce risk. into account the availability of adequate biosolids to disturbed and contaminated Other sources of data include studies analytical methods and their associated sites requiring reclamation or conducted by EPA regional offices, analytical costs. As a result, the Agency remediation. These studies, which States, and universities. For example, may only be able to measure a limited focused on the ability of biosolids to EPA Region 8 is conducting a long-term number of pollutants. help improve soil properties and

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establish sustainable vegetation cover will be conducted in collaboration with Recommendations were also made to on disturbed and highly contaminated USDA to address pathogens, chemicals, involve stakeholders in the risk sites, also included identification and endotoxins, and particulates occurrence. assessment process and to examine determination of metals bioavailability Chemical and pathogen concentrations biosolids management practices to in biosolids. The research was in air represent an initial step towards ensure that the underlying risk conducted to strengthen our understanding the potential exposure of assessment principles are effectively understanding of the potential health nearby communities. A description of translated into practice. impacts of metals, a particular focus the proposed studies can be found in 2. The Agency’s Response for the Risk during the development of the 1993 the Pathogens category. Assessment Category regulations. Results of this work showed CAFO research: EPA is also that assumptions regarding metals conducting research on microorganisms How EPA Plans To Address NRC Risk availability used in earlier metals risk and chemicals at animal manure land Assessment Recommendations Current assessments were conservative. The application sites, composting sites, and and Planned Risk Assessment Activities Agency plans to reevaluate these concentrated animal feeding operations For this notice, risk assessment is findings in context with current (CAFOs). These include studies on the defined as the process of identifying the practices and policies regarding concentrations of airborne pathogens, potential adverse health effects exposure to metals in biosolids. toxic organic compounds, odorants, and associated with environmental Exposure research: As part of a particulates. The CAFO studies are exposures to pollutants in biosolids, broader set of field studies, EPA important, because pathogen and their severity, and likelihood. recently initiated, in partnership with chemical air transport and fate for Previously, EPA used a risk based USDA and the State of Pennsylvania animal manures resemble those for approach for estimating risks to human (PA), the planning of exposure-related biosolids. The ongoing and proposed research at five biosolids production health and developing management studies are described in the Methods practices to reduce risks and set and/or application sites. These studies Development category in this notice. are intended to gather site-specific protective standards. When they were information on current practices in Planned Exposure Activities conducted, EPA’s assessments were biosolids production and application, based on state-of-the-science methods, EPA plans to continue its research information and management practices. and to identify and evaluate the fate of partnership with USDA and the State of pollutants following biosolids The NRC recommended areas where PA and to study an additional five field new or updated health and exposure application. Other objectives for this application sites. research, depending on the site, include information, models, and risk The Agency is exploring a plan to assessment methods may strengthen the (1) characterization of treated and conduct a molecular pathogen tracking untreated sludge (biological, physical, Agency’s assessments for land-applied exposure study as a follow-up to the biosolids. and chemical characterization), along PA/USDA/EPA study. This study would with sampling and analysis during land Consistent with the recommendations focus on individuals who have received of the NRC, EPA plans to address the application, (2) assessing the presence medical attention and who suspect that of pathogens, nitrogen, sulfur, volatile potential health hazards and exposures they have been affected by biosolids associated with land application of organic compounds and particulates in application practices. This study would air, (3) determining how well the biosolids using state-of-the-science risk analyze human biological monitoring approaches. Specifically, EPA plans to sewage sludge is disinfected as it moves samples (e.g., feces, blood, or swabs through the different stages of reassess methods and data used for from skin, ears, eyes, or throat) to isolate previously evaluated pollutants, and processing, and (4) determining potential causative agents, and genetic pathogen content in Class B sludge, apply these methods to new pollutants. characterization would be used to For example, risks from pollutants not once applied and following a period of identify the potential source(s). natural attenuation. Other related work previously assessed due to a lack of is being conducted by the University of C. Risk Assessment toxicity, environmental fate, or exposure Arizona’s Water Quality Center. information, will be reevaluated if new 1. Summary of Risk Assessment NRC information is available. This effort is Planned work is expected to begin in Recommendations mid 2003. The plan is for facility expected to take place in FY03 and operations for these sites to be The NRC recommended that the FY04. The Agency has assessed risks to documented, including the operation Agency use improved risk assessment children and sensitive populations, and and performance of treatment process methods to better assess risks and will continue that approach in future used to process sewage sludge and establish standards for chemicals and assessments and reassessments. produce Class A and Class B biosolids. pathogens under Part 503, since The NRC also recommended that Pathogen and chemical occurrence data methods for conducting risk representative stakeholders could be will also be collected at these sites. assessments have evolved substantially included in the risk assessment process Proposed measurements over time for since the 1993 regulations were to help identify exposure pathways, the production and land application established. The recommendations also local conditions that could influence processes may include total and volatile include reassessing standards for exposure, and possible adverse health solids, pH, temperature, odor, chemicals currently in the Part 503 outcomes. The Agency’s policy is to appearance (e.g., color, paste, liquid, regulation using the latest science. The involve stakeholders at various stages of powder), fecal coliforms, Salmonella NRC suggested that future risk policy development. The Agency spp., Staphylococcus aureus, enteric assessments incorporate new intends to consider how consultation viruses, and helminth ova. information on exposure, dose-response with stakeholders should be included in Because of concern over bioaerosols, relationships, pathogen survival, developing future sewage sludge risk air samples will be taken prior to, quantitative microbial risk assessment assessments. during, and following land application techniques, and consideration of site- EPA, in conjunction with States and at the point of application and the fence specific factors that may affect risk other Federal agencies, has already been line, for up to thirty days. Air sampling management practices (e.g., odor). addressing local biosolids issues in a

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few areas, and has used these Other studies and related activities the new scientific developments may opportunities to include stakeholders in that EPA is conducting or sponsoring have the greatest impacts. This may the process to further evaluate and include the development of dose- result in later updating the Round One improve the assessment and response models for quantitative risk risk assessment models and re- management of biosolids. For example, assessment of selected pathogens and evaluating selected pollutants, pathways stakeholders were involved in the the development of transmission models and endpoints and/or new pathways scenario development and regulatory of pathogens and disease. These models and endpoints not previously processes of a recent study in are currently being developed for addressed. Pennsylvania. As part of this study, an drinking water and, EPA plans to EPA is planning a two-step process informal information sharing group was evaluate and, if appropriate, modify for addressing the NRC formed that included concerned applicable models to be used in recommendations with respect to risk citizens, local officials, and contractors analyzing pathogens in biosolids. In assessments for pollutants in sewage to assist the Agency in identifying addition, research is being conducted sludge. The first step would be to stakeholder concerns and ensuring with USDA and various States on the conduct a problem formulation which transparency in the field study process. extent of airborne concentrations of would re-evaluate or assess methods, For the ongoing Round Two land pathogens, toxic compounds, odorants, approaches and pollutants considered application rulemaking, EPA conducted particulates and bioaerosols. EPA plans in the Round One determinations, and a revised risk assessment in response to to evaluate the results of these studies any new qualitative information for public and peer review comments on for use in refining and improving future future pollutants. This problem the 1999 Round Two proposal. This biosolids exposure and risk formulation step would include the revised assessment used a probabilistic assessments. Further descriptions of development of exposure/risk approach instead of a deterministic these studies are provided in the assessment scenarios that would be approach to yield information on the pathogen section and the action plan. used to identify critical/key stressors, sources of variability and uncertainty in To further the state of the knowledge routes of exposure, model application the final risk estimates. The surrounding all aspects of sewage and data gaps. The primary focus of this probabilistic approach used estimated sludge use and disposal, including effort will be on areas having the values for certain input variables over improved risk assessments, EPA is greatest potential risks and uncertainties the range of observed data to estimate supporting a workshop scheduled for (e.g. pathogens). The problem the risks for the highly exposed January of 2004 on the ‘‘state of the formulation will serve to eliminate population. This revised risk assessment science’’ on land application of those stressors, scenarios, routes of also used new inputs, which included a municipal and industrial wastewater exposure, and endpoints that need not redefined ‘‘highly exposed individual,’’ effluents, sewage sludge, and animal be evaluated further. It would retain new pathways and mechanisms of manures. This workshop is being those areas which are potentially exposure, new exposure factors adopted coordinated by the University of Florida significant or require more study. The from the latest EPA Exposure Factors and will have numerous contributors problem formulation would also result Handbook, a sensitivity analysis to from the Agricultural Research Service in a research analysis plan that would determine the relative importance of the of USDA, and academia, among other not only identify risk assessment input variables, and updated scientific groups. New and additional information activities but also prioritize research to information on the chemicals of on biosolids toxicities and address exposure and risk management. concern, dioxins. EPA redefined the environmental properties may emerge The second step would be to conduct ‘‘highly exposed individual’’ as a from this workshop; once evaluated, quantitative risk assessments and risk member of a farm family that consumes this information may be used in future characterizations for key pollutants 50 percent of his/her diet from home- risk assessment updates of the Part 503 identified and prioritized by the produced crops and animal products Rule. The Web site http:// scenario/conceptual models, as grown on his/her own biosolids- www.conference.ifas.ufl.edu/landapp/ appropriate. These assessments would amended land. EPA plans to use the contains information concerning the initially be screening level risk Round Two risk assessment approach as upcoming workshop, as well as other assessments. More refined assessments a starting point for evaluating the NRC’s relevant information. would be conducted only on those recommendations, including the use of As discussed previously, EPA may pollutants and pathways for which the the reasonable maximum exposed use the risk assessment paradigm to screening-level assessment indicate (RME) individual for improving future provide both a focused reassessment of significant potential for risk. In risk assessments. certain previously addressed pollutant conducting any risk assessments, EPA is currently funding and risks, exposure pathways and risk screening or comprehensive, EPA will, conducting research related to risk assessment approaches, as well as as appropriate, apply the most up-to- assessment of biosolids. EPA is assessing pollutants which have not date scientific information and risk sponsoring research or has awarded been previously evaluated to effectively assessment methodologies. In addition, grants to the Water Environment address the NRC risk assessment related EPA proposes to continue its efforts to Research Foundation (WERF) and others recommendations and the review evaluate and develop new methods for to develop quantitative pathogen risk required by Section 405(d)(2)(C) of the pathogen risk assessments and assessment methods and approaches. CWA. These risk assessment activities improved models for exposure EPA plans to conduct a comprehensive will be initiated this year. This effort assessments. evaluation and peer review of these will be developed and outlined by an EPA’s proposed activities are to results and, if deemed appropriate for interdisciplinary workgroup within EPA continue to track development of use in assessing risk from pathogens and include external review of the methods for QMRAs and develop found in biosolids, the Agency would analysis plan. guidelines for assessing risk from incorporate these new risk assessment For this risk analysis, EPA is planning pathogens. In addition, EPA also plans methods into any new or updated risk to focus on an evaluation of those key to continue work on the evaluation of assessment and update the part 503 rule pollutants and pathways which are data and models for improving exposure as necessary. likely to be of greatest concern or where assessments. EPA may also evaluate and

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assess data and information related to application sites. Currently available for pathogens and indicator organisms, multiple exposures, potential analytical methods are being identified conducting research on vectors carrying contaminant interactions, and potential or in some cases adapted for this study. pathogens and bioaerosols, and effects on sensitive sub-populations, to A description of these field studies has conducting studies to determine the extent the state-of-the-science is been provided in the preceding whether site restrictions for Class B available. Exposure subsection of this notice. achieve intended effects for pathogen Additionally, EPA is conducting field levels. The NRC also recommended that D. Methods Development studies at animal manure land EPA not allow provisions for 1. Summary of Methods Development application sites, composting sites, and distributing Class A biosolids in bags or NRC Recommendations concentrated animal feeding operations other containers (weighing less than one The NRC recommended that the (CAFOs). This research includes metric ton) when they do not meet Agency develop and standardize measurements of pathogens, toxic pollutant concentration limits (i.e., all methods for measuring pathogens and organic compounds, odorants and biosolids sold or given away should be emerging chemicals in biosolids and particulates in the air near CAFOs. Both exceptional quality). bioaerosols. Standardized methods the biosolids and CAFO studies include Other NRC recommendations include could be used to provide measures of evaluation and adaptation of analytical considering additional indicator performance and to verify that the methods for selected pathogens and organisms (e.g., Clostridium Agency’s management practices and chemicals. Results of these studies perfringens) for use in regulations, as standards are reliable. should assist the Agency in determining well as funding, supporting and Specifically, the NRC recommended the need for additional methods officially sanctioning the Pathogen developing, standardizing, and development research. Equivalency Committee (PEC) as part of validating methods for pathogens in Open-path Fourier Transform Infrared the Federal program. National field and biosolids and bioaerosols (e.g., airborne (FTIR) spectrometry will be used to laboratory surveys to verify that Class A pathogens). In addition, research that measure volatile organic compounds and Class B treatment processes for uses improved pathogen detection from land application sites. EPA is pathogens perform as assumed by their technology, round-robin laboratory validating analytical methods for engineering and design principles could testing to establish method accuracies microorganisms cited in 40 CFR Part also be conducted. Determinations and precision for pathogen 503. Fecal coliform methods have been could be made of pathogen density and concentrations in raw and treated validated, whereas Salmonella methods elimination across the various accepted biosolids, mechanisms for incorporating are being validated. Methods and treatment processes and in the biosolids new methodologies into the verification validation studies for these two agents or environmental media over time, process, and measures of performance are expected to be published in 2004. applying geographic and site-specific conditions that affect pathogen fate and that can be monitored (e.g., Planned Method Development transport to determine the effectiveness concentrations of selected chemicals in Activities exposure media and human biological of site restrictions, buffer zones, and monitoring such as blood or urine of As part of its field study programs, holding periods for Class B biosolids. workers and residents) could be EPA plans to work with USDA to EPA may also consider further refining, considered useful in conducting and investigate methods for measuring and directly correlating, stabilization interpreting future risk assessments and bacteria and viruses in air upwind and controls to outcomes using metabolic used to develop applicable risk- downwind of biosolids land application techniques (e.g., sour test, carbon assessment technologies. sites. EPA is considering developing dioxide metabolic release, methane and validating analytical methods for metabolic release). 2. The Agency’s Response to Methods enteric viruses and helminth ova, as Development well as chemical analytical methods for 2. The Agency’s Response to the Pathogen Category How EPA Plans To Address NRC emerging chemicals of potential concern Methods Development in biosolids (e.g. pharmaceuticals). How EPA Plans To Address NRC Pathogen Recommendations Recommendations E. Pathogens For the methods development EPA currently uses a technology and 1. Summary of Pathogen NRC management practices based approach category, the Agency plans to focus its Recommendations resources on pathogens and chemicals to minimize pathogen exposure. The associated with biosolids. Validated The NRC recommended that the Agency is considering studies to better analytical methods are necessary to Agency review approaches for understand the measurement, control, support exposure assessments for toxic developing microbial analytical and fate of pathogens during the pollutants and pathogens. Methods are methods and conducting microbial risk production and land application of needed for determining the reliability of assessments (Quantitative Microbial sewage sludge. Such studies include treatment processes, assaying pathogens Risk Assessments) to analyze sensitivity improved analytical methods, and chemicals in raw and treated and to ascertain what critical evaluation of treatment and application biosolids, incident follow-up, sampling information is needed to reduce processes, site-specific pathogen environmental media, and human uncertainty about the risks from occurrence studies, potential human biological monitoring. Ongoing or exposure to pathogens in biosolids. health impacts, exposure assessment, planned methods development According to the NRC, research and risk assessment. activities in the Agency that address the activities that might improve EPA’s Certain pathogen studies are NRC recommendations follow. pathogen standards and reduce risk, or discussed in the Methods Development uncertainties concerning risk, from subsection of this notice. Where other Method Development Activities pathogens following exposure to studies address several pathogen issues Recently initiated EPA methods biosolids include development, (e.g., field studies, management, development work includes field standardization and validation of treatment, site restrictions), they are studies at five biosolids production and detection and quantification methods briefly described below.

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Research: EPA has an ongoing efficacy of odor management are program to support the wastewater biosolids research program focused on discussed. The importance of health treatment industry. An important part of selected pathogens, and is expanding effects was found to be dependent upon their program has been supporting this program during this fiscal year. a number of factors, and health impacts research on biosolids that has been Future pathogen research will be may be minimized using odor aimed at reducing uncertainties and determined by the results of ongoing remediation methods. hence is significant with respect to the studies that will inform the Agency The University of Arizona’s, National NRC recommendations. Treatment plant about significant issues and information Science Foundation, Water Quality residuals and biosolids, including gaps that require additional work. Center (http://www.wqc.arizona.edu) pathogen issues, have consistently Presently, the Agency is considering has conducted, and is planning to ranked among the top five priorities for research in at least three general areas: conduct, pathogen studies in biosolids WERF subscribers over the past decade. (1) Development of improved pathogen including: (1) Air transmission of WERF biosolids research entails more analytical techniques; (2) assessment of pathogens from land application, (2) than 40 basic and applied projects to exposure and risk for critical pathways potential occurrence of Staphylococcus reduce uncertainties, better manage and pollutants, and (3) evaluation of aureus, (3) fate and transport of biosolids, assess public perception of sewage sludge processing and land pathogens, and (4) risk assessments for risks, and develop strategies for application methods and site pathogens in land applied biosolids. biosolids treatment and management. restrictions. Results of such research These studies will evaluate various Much of WERF’s research is focused on will assist the Agency in determining application sites, terrain, climate, and the beneficial uses of biosolids. The where improvements may be needed. potentially affected nearby populations. Research of particular interest includes The researchers involved in this study methods for rapidly detecting Pathogen Activities plan to model the transmission of pathogens. EPA plans to continue to In June 2001, EPA and USDA pathogens to estimate exposure for review and evaluate such research sponsored a workshop on ‘‘Emerging nearby human populations, which may projects as they are completed to Pathogen Issues in Biosolids, Animal ultimately allow the development of determine their relevancy to the Manures, and Other Similar By- predictive risk assessment protocols. national biosolids program. Products’’ (USEPA 2003 in press). The EPA will monitor these studies as they Other studies supported by WERF are workshop assembled experts in develop over at least the next two years intended to determine biosolids land biosolids and animal waste management to determine their relevance to the application rates. Phosphorus overload to review the state-of-the-science, National biosolids program. in animal manure and biosolids is a resolve persistent and complex issues, EPA’s Pathogen Equivalency particular concern. These studies are and provide suggestions for research. Committee (PEC): The Agency formed evaluating phosphorus bioavailability The workshop considered: viruses, and has supported the PEC since 1985. and Class A and Class B pathogens to bacteria, protozoa, prions, fungi, and PEC members provide guidance to determine potential impact on helminth ova; migration of pathogens to applicants, permitting authorities and groundwater and other environmental groundwater and air from recycling and members of the regulated community on media. WERF is convening a biosolids treatment operations; qualitative sampling and analysis issues related to research summit in the summer of 2003. identification and detection methods for meeting the subpart D requirements of A WERF pre-summit will provide pathogens; the fate of antibiotics in part 503 (pathogen and vector attraction training about mutual gains activities animal and human wastes; pathogen reduction). The PEC currently consists and joint fact finding, and will develop resistance to antibiotics; and of representatives from EPA and the a protocol for guiding the assistance of susceptibility of people with immuno- Centers for Disease Control and an information sharing group suppressed conditions to pathogens. Prevention (CDC). The members have (comprised of the concerned citizens, as A discussion of recently initiated EPA expertise in bacteriology, virology, well as stakeholders) in recommending work concerning pathogens at five parasitology, wastewater engineering, WERF-sponsored research and oversight biosolids and three animal manure medical and veterinarian sciences, needs. EPA plans to collaborate with production and/or application sites is statistics, and sludge regulations. The WERF and the USDA to sponsor an provided in the previous Exposure PEC evaluates and supports international conference on sustainable category. development of alternative treatment land application for municipal and The Agency has completed and is technologies by consulting with local industrial effluents, manures, biosolids conducting additional studies on communities, States, industry and and other non-hazardous wastes. The exposure and occurrence of disease others stakeholders. The PEC provides conference, scheduled for January 2004, which are described in the Risk information on biosolids processes, will provide information and Assessment and Human Health contaminant occurrences, and exposure, perspectives on research gaps and subsections of this Section VII. In a and assists EPA regions, States, and the needs. Detailed information on the collaboration with Duke University, regulated industry with questions about WERF biosolids research program may EPA has also published a report on the equivalency for Processes to be accessed at http://www.werf.org. relationship between odor from animal Significantly Reduce Pathogens (PSRP) and waste water residuals processing and Processes to Further Reduce Planned Pathogen Activities facilities and land application sites and Pathogens (PFRP) under 40 CFR part Quantitative Microbial Risk potential health effects (Journal of 257 and part 503. If the PEC Assessment (QMRA): EPA and WERF Agromedicine, Volume 7(1), 2000, ISSN: recommends that a process is equivalent are funding research termed ‘‘QMRA’’, 1059–924X). The report summarizes the to PSRP or PFRP, the operating as described in ‘‘A Dynamic Model to state of knowledge on ambient odor parameters and any other conditions Assess Microbial Health Risks health effects with emphasis on animal critical to adequate pathogen reduction Associated with Beneficial Uses of manure and biosolids odor emissions. are specified. Biosolids’’ (WERF 2003, Cooperative Potential mechanisms for health The Water Environment Research Agreement No. CR–825237). The symptoms, methods for validating Foundation (WERF), with contributions organizations involved in this research health symptoms, presence of odor, and from EPA, is funding a diverse research include WERF, the University of

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California at Berkeley, and Eisenberg, priority could be given to studies that the USDA/EPA/State of PA study to Olevieri and Associates. The document can help reduce uncertainty. evaluate risk from exposure to describing this research also presents a 2. The Agency’s Response to the Human pathogens, particulates, endotoxins, and methodology for assessing exposure and Health Studies Category odors from farm fields and other risks to human health from pathogens in agricultural and silvicultural settings biosolids. The present methodology How EPA Plans To Address NRC upon which biosolids, animal manures, provides initial screening for a given Human Health Studies and other organic amendments have scenario, identifies broad conditions for Recommendations been applied. These cooperative studies high and low risk situations, and At this time, the Agency does not plan will evaluate various application sites, estimates where more data are needed. to conduct an epidemiological study, as terrain, climate, placements of receptor Future work (beyond 2004) may focus discussed in the NRC report. As noted populations and downwind ambient air on applying this methodology to more by the NRC, comprehensive concentrations of pathogens and volatile refined scenarios. Such validation epidemiological studies are complex, organic chemicals near residents. The activities will assist EPA in developing time consuming, and require substantial Agency plans to evaluate if the collected microbial risk assessment guidelines, additional funding. The Agency may subject to available resources. data can be used to develop models for assess the future need for estimating exposure of human Potential future pathogens activities epidemiological studies, but believes populations downwind of these sites, will include analytical methods targeted human health studies (e.g., which might then be used in predictive development, exposure and risk those of focused scope, such as risk assessment applications. assessment. The Agency is also exposure to pollutants via aerial considering continuing site-specific transport and incident investigations) G. Regulatory Activities evaluations of current treatment and over the short-term might better address land application processes, studies of potential human health impact and 1. Summary of Regulatory NRC wastewater treatment sludge persistent uncertainties surrounding Recommendations stabilization during biosolids exposed populations. These studies The NRC recommended that EPA production to reduce odors and vectors, could help assess the potential airborne revise or develop regulatory criteria for and the use of pilot-scale treatment exposure to pollutants and could help biosolids in a timely fashion and units to optimize sludge treatment determine whether incidents are identify additional regulatory techniques for pathogen and chemical occurring following biosolids exposure. mechanisms to better protect human control. Targeted exposure and human health health and the environment from the F. Human Health Studies studies could also help inform the design of any future epidemiological exposure to land-applied biosolids. This 1. Summary of Human Health NRC studies, should they prove necessary. recommendation includes the following Recommendations Results from targeted studies would also components: a review of biosolids allow the Agency to communicate with protocols used by other nations, The NRC recommended that the other public health-based federal adoption of national standard treatment Agency conduct response incident agencies regarding human health design criteria, a refinement of investigations, targeted exposure exposure and epidemiological studies. stabilization controls correlated to surveillance, and well-designed outcomes using metabolic techniques, epidemiological investigations of Planned Human Health Activities development of molybdenum standards, exposed populations. Data from these Targeted Human Health development of a quantitative microbial studies would be used to provide a Investigations: The Agency’s primary risk assessment (QMRA) to establish means of documenting whether health objective is to characterize pollutants regulatory criteria for pathogens, studies effects exist that can be linked to and microbial agents present in biosolids exposure. to determine whether the management biosolids, as well as any associated practices specified in the Part 503 rule The NRC also recommended that human exposure pathways, that may achieve their intended effect, provisions preplanned exposure assessment studies have the greatest potential to adversely for the distribution of Class A biosolids characterize exposure of workers and impact human health. Specifically, the weighing less than 1 metric ton (i.e., the the general public who come into NRC sees an immediate need for a NRC recommends that all biosolids sold contact with biosolids either directly or systematic approach for investigating indirectly. Such studies could include should be exceptional quality (EQ)), and claims of disease or illness following the elimination of exemptions for the identification of microorganisms biosolids exposure. Regulators, sewage nutrient management and site and chemicals, the selection of sludge processors, and land appliers restrictions for land-applied EQ measurement methods for field samples, must be capable of responding rapidly and the collection of adequate samples to such reports. The Agency is biosolids. in appropriate scenarios. investigating the possibility of The NRC also recommended that EPA Further, the NRC recommended that developing a process for timely consider additional risk-management epidemiological studies of biosolids use notification, recording, and tracking practices when revising the part 503 be designed to provide evidence of a incident reports in collaboration with rule. Considerations should include causal association, or lack thereof, the Centers for Disease Control and limitations on holding or storage between biosolids exposure and adverse Prevention (CDC). The Agency has practices, slope restrictions, soil human health effects. These studies initiated preliminary discussions with permeability and depth to groundwater, could include an assessment of the the CDC to discuss possible mechanisms and setbacks to residences or occurrence of disease and an assessment for recording and tracking biosolids businesses, surface water, and drinking of potential exposures. Because large related disease incidents. water supplies. scale and comprehensive The University of Arizona’s National epidemiological studies are expensive Science Foundation, Water Quality and require extensive data analysis, Center, may also join cooperatively in

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2. The Agency’s Response to the depth to groundwater, and proximity to agricultural activities can occur after Regulatory Category surface waters. States and local biosolids application. In determining How EPA Plans To Address NRC jurisdictions will have better knowledge the efficacy of current management Regulatory Recommendations of local conditions, and are in a better practices, ways to improve them may position to establish additional also be identified. This research will be Ongoing Regulatory Activities management practices to augment the initiated in 2003. protectiveness of the part 503 New Standards: As previously H. Biosolids Management mentioned in Section II above, EPA Standards. However, EPA also plans to vacated the numeric standards for evaluate such practices to determine if 4. Summary of Biosolids Management molybdenum in sewage sludge as a additional requirements or NRC Recommendations result of litigation. EPA has conducted improvements in the Part 503 Rule are The NRC recommended that the a literature search of new environmental warranted. Agency increase the resources devoted properties information for molybdenum Regulations from Other Nations: EPA to its biosolids program and expand in land-applied biosolids. Following generally considers relevant and biosolids management activities. review of this new information, EPA available information and protocols Specific recommendations were made to will determine its applicability as the from other nations to augment and increase funding to States to implement basis for re-proposing molybdenum inform its decisions. When standards programs, fund, support, and officially standards for land-applied sewage are available, such as the Canadian sanction EPA’s Pathogen Equivalency standards for sewage sludge, these have sludge. EPA is planning to complete this Committee (PEC) as part of the EPA provided the Agency with valuable new review in 2003. biosolids program, and strike a balance perspectives and insights into the EPA also has information indicating between expending resources on new scientific, technical, and societal basis that virtually no biosolids products are site-specific data collection and for the development and sold or given away in bags or other expending resources to model and implementation of sewage sludge containers unless they comply with the assess risk using existing information. regulations. However, there are pollutant concentrations for the nine The NRC also recommended biosolids fundamental scientific and metals currently regulated and the management activities in the following programmatic differences between pathogen and vector attraction areas: expand and strengthen the certain international sewage sludge reduction requirements, which allows oversight program, track allegations and standards and EPA’s standards for the sentinel events of adverse health effects these products to be classified as use or disposal of sewage sludge in 40 exceptional quality (EQ) as described in from exposure to land-applied biosolids, CFR part 503. and conduct studies to determine the EPA guidance (USEPA, 1994). EPA The Part 503 Standards are based on plans to evaluate the data during the whether the management practices information for pollutants found in specified in Part 503 achieve their current year to determine whether to sewage sludge, and are risk-based as amend part 503 to eliminate the non-EQ intended effect. directed by section 405(d) of the Clean Furthermore, the NRC recommended Table 4 alternative for selling and Water Act. As such, the Part 503 distributing biosolids products that are that the Agency develop a procedural Standards consist of numerical limits framework to implement human health sold or given away in bags or other with adequate margins of safety to containers weighing less than one investigations and to verify that (1) protect public health and the treatment technologies for pathogen metric ton. environment. The Part 503 numerical Standardized Management Practices: control are effective (quality control), (2) standards are based on a conservative chemical standards are met (compliance Part 503 is designed to protect public set of exposure pathway and risk health through compliance not only audits), and (3) unanticipated hazards assessment assumptions. are identified. with numerical criteria for pollutants In contrast, international sewage found in biosolids, but also with sludge standards are based on differing 2. The Agency’s Response to the operational standards for pathogen and legal frameworks. Therefore, sewage Biosolids Management Category vector attraction reduction. These sludge regulation promulgated by some How EPA Plans To Address NRC operational standards are performance other countries may not be comparable Biosolids Management based, based on operational goals for to EPA’s authority or standards under Recommendations specified reduction, to enable section 405 of the CWA. However, elimination of pathogens and vector numerous other countries have Biosolids Management Activities attraction reductions in sewage sludge supported the quantitative risk Overview: At EPA Headquarters, the through various engineering designs, assessment approach and have often biosolids regulatory staff within the processes and equipment. EPA believes adopted Part 503 limits for regulating Office of Water has been increased that such means are appropriate for biosolids. recently. The new staff positions will be achieving environmental performance devoted to regulatory development, Part while encouraging efficient, cost- Planned Regulatory Activities 503 updates, and implementation effective, and innovative systems and Studies: As part of its field studies in activities. There is also an enforcement approaches. 2004, EPA is planning to evaluate or compliance presence in each of the The establishment of national certain Class B disinfection processes EPA Regional Offices for following up standard treatment design criteria may including the natural attenuation of on phone calls and complaints received not result in application of the most pathogens that occurs while the sludge from the public, and initiating Agency efficient site-specific practices for is on or in the soil for the site restriction enforcement actions, as appropriate. protecting public health. The additional periods stated in the current regulations States have their own oversight management practices recommended by (40 CFR 503.32(b)(5)). Treatment programs, some of which are quite the NRC are linked to site-specific, or processes that are expected to be comprehensive. There are a total of local-level, conditions. Examples evaluated include anaerobic digestion about 150 full time equivalent State include topography, soil characteristics, and lime addition. Site restrictions to be employees assigned to their respective climate, population density, land-use, studied include limitations on how soon biosolids programs. Five States have

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been authorized by EPA to administer of compliance assistance materials. The included a survey on public perceptions the part 503 program, and 15 additional second Web site is the Local and what people know about biosolids, States are at various points in the Government Environmental Assistance what their concerns are and whether authorization process. National Network (LGEAN) at http:// their concerns are being addressed coordination of State, regional and www.lgean.net. This on-line compliance adequately. The study’s aim is to Headquarters biosolids programs are assistance center, which focuses on suggest ways that regulators and people achieved via an annual national local government environmental can work together. A report is due out meeting. requirements, is operated by the by mid 2003. EPA continues to meet its statutory International City/County Management This and other projects will help the obligations under the Clean Water Act Association (ICMA), and has six other Agency gain a better understanding of (CWA) pertaining to sewage sludge. The partners representing local government. public perception issues, values, and Agency continues to believe that land In the area of data systems, EPA is expectations. EPA can then identify the application of biosolids is an continuing to work with States as it most effective communication appropriate choice for communities, modernizes the Permit Compliance approaches to ensure understanding of when conducted in compliance with System (PCS) to allow for more effective the importance of, and need for, proper EPA regulations. Given present program oversight. While PCS is the biosolids management scientific knowledge, EPA has based the national data system for the NPDES Science and Public Outreach: Because allocation of resources to biosolids permit program, it currently requires of varying resources and diverse local compliance and enforcement on its only limited biosolids data. As part of circumstances, risk communication assessment of the relative risks to public the PCS modernization, a separate practices vary widely throughout the health and the environment that are workgroup (including States and EPA) United States. The Agency’s risk posed by biosolids. was devoted to the data needed to communication programs are aimed at Regions and States have the flexibility manage the biosolids program. This improving public awareness of the and responsibility to address situations workgroup examined data in State issues and to achieve exposure where compliance assistance and systems, Biosolids Data Management reductions where needed. Embodied in enforcement actions to address biosolids System (BDMS) and PCS, and all of the priorities for action described are appropriate and necessary. EPA has considered incorporating BDMS into in this biosolids strategy is a need to taken enforcement actions and/or PCS. The recommendations of this foster public awareness of the issues appropriate administrative remedies to workgroup, endorsed by the PCS surrounding biosolids use and exposure. address biosolids violations of 40 CFR Executive Council, was not to Through the activities and organizations part 503 and will continue to take incorporate or link BDMS, but rather to mentioned below, EPA is committed to actions to address instances where add data elements to PCS to improve improving the effectiveness of risk biosolids pose an imminent and tracking and oversight of the biosolids communication methods at national, substantial endangerment to human program. regional, and local levels. health or the environment. EPA will The BDMS is another source of An Information-Sharing Group (ISG) reconsider resources devoted to biosolids data. It was developed in the has been established based upon the biosolids if additional research and late 1990s by Region VIII to track concepts developed in WERF studies science demonstrate greater risk. biosolids quantity, quality, use, and concerning joint fact-finding research. To assist the States and Regions in disposal practices in the Region VIII The ISG is comprised of concerned their oversight of the biosolids program, states. While not the national system of citizens, health scientists, municipal EPA has, either in place or in record for biosolids, BDMS is a tool for operators, a farmer, biosolids managers, development, tools to assist and municipalities in which they can enter and input from State and Federal promote compliance with biosolids data themselves and use the BDMS to regulatory agencies. The ISG has been regulatory requirements. The National develop reports for states, EPA and for established to work jointly with about Pollutant Discharge Elimination System citizen review. The BDMS is also a 25 scientific experts in a large (NPDES) Compliance Inspection valuable management tool and can be cooperative study of odor, particulates, Manual, which is used by EPA and State used to record information about pathogens, and endotoxins in the air inspectors to perform inspections in the reported incidences associated with around biosolids and animal manure field, includes a ‘‘Sludge (Biosolids)’’ biosolids land application. The BDMS is land application sites. Currently the chapter (Chapter 10). This manual has available at: http://www.treeo.uf/.edu/ researchers are from EPA, USDA, the just undergone major revisions and water/bdmsQuestionnaire.asp. Current State of PA, and several other updating by a Headquarters and regional BDMS users include some EPA Regional organizations. WERF has efforts workgroup; the Manual is being offices, States, users of biosolids, underway to expand the use of such distributed as a final draft for regional contract land appliers, and POTWs information-sharing in other research and program office review. Electronic throughout the U.S. and Canada. EPA is projects. training modules, including a module continuing to assess the potential of The National Biosolids Partnership for biosolids inspections, are planned to upgrading BDMS as a management tool (NBP) is a 48 member alliance formed be available shortly after the release of that can link with established states and in 1997 with AMSA (Association of the revised manual, in Summer 2003. the Federal PCS system. Metropolitan Sewerage Agencies), WEF Additionally, there are two Research by the Water Environment (Water Environment Federation, and compliance assistance web sites, which Research Foundation (WERF) is EPA (U.S. Environmental Protection are available for biosolids compliance described in the Pathogen and the Agency). Through partnering with studies, information and tools, and for Human Health Studies categories. producers, service contractors, users, links to other sites with pertinent WERF also supported a study by the regulatory agencies, universities, the biosolids compliance information. One New England Biosolids and Residuals farming community, and environmental is the National Environmental Association (NEBRA) looking at the organization, the goal of the NBP is to Compliance Assistance Clearinghouse importance of establishing relationships advance environmentally sound and at: http://cfpub.epa.gov/clearinghouse/. among researchers, federal government accepted biosolids management This site is a searchable clearinghouse and concerned citizens. This research practices.

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Through a voluntary Environmental EPA plans to use those opportunities to conducted a preliminary review of Management System (EMS), being further evaluate and develop the tools to publicly available information on developed for biosolids by the National improve the assessment and chemical toxicity, environmental Biosolids Partnership (NBP), EPA management of sewage sludge. properties such as mobility and continues to provide the public with persistence, and concentration; Planned Biosolids Management educational information, based on the Activities identified chemical pollutants for which best science, about the recycling and appropriate analytical methods and disposal of biosolids. EPA strongly The priority activities for biosolids human health benchmarks are available; supports the ongoing efforts of the NBP presented in this response were and made preliminary determinations to develop the EMS and to provide evaluated in the larger context of other regarding sufficiency of information for correct and timely information and Agency priorities. The purpose of listing risk-based screening analyses. The community-friendly practices that could planned activities is to illustrate the results of this review are available in the be followed via its new communications Agency’s future direction based on docket (USEPA, 2003e). system. The EMS program supports current information. Given the activities At this time, EPA has not identified local agencies to find ways to meet and spelled out in this response, EPA’s goal any additional toxic pollutants that go beyond what is required in state and over the next two years is to complete warrant regulation in sewage sludge. federal regulations. About 45 studies and other activities, follow The next step in identifying toxic municipalities are now pilot-testing external research, and review available pollutants that may warrant regulation their biosolids EMS programs based information. The Agency’s longer-term is to conduct a screening analysis of upon a blueprint developed by the NBP. goal is to assess results from completed those chemicals for which adequate data Several of these municipalities will be and ongoing activities to determine and analytical methods are available ready to undergo an independent third further research needs. Implementation and for which there is evidence that of various activities will be considered party audit of the EMS program later they may occur in sewage sludge. EPA by the relevant EPA Offices and Regions this year (2003). Municipalities plans to complete this screening in future priority setting activities. involved in the voluntary EMS program analysis by January 2004. In addition, are reporting benefits they have IX. How Did EPA Conduct the Review EPA is continuing to seek additional achieved. They report that their of Part 503 Regulations Under the CWA information to fill data gaps for those participation in the EMS program has Section 405(d)(2)(C)? chemicals for which adequate data for resulted in more efficient operation, Section 405(d)(2)(C) of the Clean the screening analysis is not yet reduced odors in biosolids, less available and would welcome any intrusive transport of the biosolids to Water Act requires that EPA review the sewage sludge regulations ‘‘for the relevant data from commenters. land application sites, better The Agency began its review under communication, and meaningful purpose of identifying additional toxic section 405(d)(2)(C) by first reviewing involvement of the public. The Agency pollutants and promulgating regulations the complete list of pollutants that were plans to continue supporting NBP for such pollutants consistent with the considered in developing the Round activities and working with requirements’’ of section 405(d). EPA One rule and Round Two proposal. For municipalities on expanding the use of has promulgated regulations in 40 CFR Round One, EPA conducted a National EMS programs in biosolids part 503 setting numeric standards for Sewage Sludge Survey (NSSS) in 1988– management. Two NBP Web site certain toxic pollutants in sludge, 1989, which included an analysis of 411 address that present relevant biosolids requirements for pathogen and vector pollutants. These 411 pollutants information are http:// attraction reduction, and operational included, among others, every organic www.biosolids.org and http:// standards for emissions from sewage biosolids.policy.net/emsguide/manual/ sludge incinerators. chemical including pesticide, goodpractmanual.vtml. As explained in section IV above, EPA dibenzofuran, dioxin and PCB analytes The EPA’s Pathogen Equivalency commissioned the NRC study of existing for which EPA had gas chromatography Committee was discussed in the sewage sludge land application and mass spectrometry (GC/MS) Pathogens subsection. The PEC is regulations for the purpose of standards (58 FR 9268–9269). Of the instrumental in the development and strengthening the scientific basis of its original 411 pollutants, EPA evaluation of regulatory-related review under section 405(d)(2)(C). In an promulgated numeric standards in initiatives. EPA will continue to support agreement with the parties in Gearhardt Round One for 10 pollutants (metals) in and evaluate the activities of the PEC. v. Whitman, EPA agreed to publish a land-applied sewage sludge, three State Regulations: 40 CFR part 503 notice seeking public comment on its pollutants (metals) in sewage sludge sets minimum standards for the use or proposed response to the NRC placed in surface disposal units, seven disposal of sewage sludge. State recommendations and the results of its pollutants in sewage sludge fired in requirements may be more restrictive or 405(d)(2)(C) review. In conducting this sewage sludge incinerators (SSIs), and administered in a manner different from review, EPA committed to review and an operational standard for total the Federal regulation. In all cases, users evaluate publicly available information, hydrocarbons (or alternatively carbon and disposers of biosolids must comply such as sampling data, scientific monoxide) emitted from SSIs. with the most restrictive portions of studies, and other analysis and These same 411 pollutants were the both the Federal and State rules. In most information taken from a wide range of starting point in 1995 for identifying cases, the part 503 rule is self- national and international public and pollutants for developing a Round Two implementing; users must comply with private sources. regulation. EPA conducted a part 503 rule, even if they have not been In fulfilling this commitment, EPA preliminary screening analysis which issued a permit covering sewage sludge has performed a comprehensive resulted in an identification of 31 use or disposal. EPA or States can take assessment of the availability of data on pollutants for potential regulation in enforcement actions directly against chemicals that have been detected in or Round Two. These 31 pollutants were persons who violate part 503 in some way linked to sewage sludge. the subject of a comprehensive hazard requirements. In situations where States EPA reviewed Rounds One and Two identification study, which narrowed and others are addressing such issues, screening histories; collected and the list to dioxin, dibenzofurans and

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coplanar polychorinated biphenyls 459 papers, 216 papers concern either described above were compared to (PCBs). the Round One or Round Two eliminate any duplicates. Finally, EPA Many of the original 411 pollutants pollutants only. The balance of these evaluated all of these pollutants to were eventually eliminated for papers, 243, concern or potentially determine whether there are sufficiently consideration in Round One or Round concern pollutants that were not the accurate and precise analytical Two rulemakings; 254 were eliminated subjects of Rounds One or Two. methodologies with adequate detection because they were not detected in any Subsequently, these 243 papers were limits for these pollutants in the sewage or in fewer than one percent of the reviewed to verify which of the papers sludge matrix. These results are sewage sludge samples surveyed in the do in fact concern pollutants which available in detail in the docket for this NSSS, and others were dropped because were not the subjects of Rounds One notice (USEPA, 2003b). of a lack of sufficient information on and Two. In addition, these papers were These preliminary results will be their toxicity and environmental reviewed for human health benchmarks, further analyzed, leading to a risk-based properties. In particular, 44 of the 411 environmental properties, and presence screening analysis. The criteria for pollutants, though detected at a or concentrations of these pollutants in determining whether to proceed to a frequency of greater than one percent, sewage sludge. screening analysis for any pollutant are were dropped from further EPA also collected information from whether there are: (1) Adequate and consideration because of lack of data on EPA databases and several other reliable data regarding concentration of human health benchmarks and/or existing databases with respect to the pollutant in sewage sludge, (2) a environmental properties. For a more human health benchmarks, and found current human health benchmark, (3) detailed description of the process for 170 pollutants with some human health adequate information on environmental Round One and Two, see USEPA, benchmarks among these databases properties, such as persistence and 2002c. (USEPA, 2002e). These databases mobility, and (4) an appropriate For the current review, EPA again include: EPA’s Integrated Risk analytical method for the pollutant. In started with the 411 pollutants initially Information System, EPA’s Superfund evaluating item 2 above, EPA will focus identified for Round One consideration; Technical Support Center Provisional initially on chemicals for which there is As mentioned above, 254 of these Toxicity Values, EPA Health a current peer-reviewed human health pollutants were detected at a frequency Assessment Documents, California benchmark developed by EPA. EPA will rate of less than one percent in the Environmental Protection Agency next determine the adequacy of the 1988–89 NSSS and therefore were Chronic Inhalation Reference Exposure available environmental properties data dropped from further consideration in Levels and Cancer Potency Factors, for use in the risk-based screening both the Round One and Round Two Agency for Toxic Substances and analysis. rulemakings. Because the low detection Disease Registry Minimal Risk Levels, rates for these 254 pollutants could have and Health Effects Assessment The results of this screening analysis been due to the limits of the analytical Summary Tables. will serve as a basis for determining and sampling methodology employed in The next step in this process was to whether additional toxic pollutants 1988–89, EPA included these pollutants ascertain whether analytical methods should be considered for regulation in in the current review for potential exist for detecting and quantifying each sewage sludge under section 405(d) of addition to the Part 503 Standards. A of these pollutants in sewage sludge the Clean Water Act. As noted above, literature search was performed on these (USEPA, 2002f, USEPA, 2002g, USEPA, EPA has not yet identified any pollutants to identify (1) human health 2002h). Although the accuracy, additional pollutants for regulation. benchmarks, (2) environmental precision, and limits of detection of Inclusion in the results presented today properties, and (3) their presence or analytical methodologies for chemical does not mean that a pollutant has been concentrations in sewage sludge. pollutants in the sewage sludge matrix determined to be present in sewage As previously mentioned, 44 of the have significantly improved since the sludge in concentrations that may 411 pollutants considered in the Round 1988–89 NSSS, there are still many adversely affect human health or the One and Round Two rulemaking pollutants for which no validated environment. Some, or even all, of these processes were detected at a frequency analytical methods exist. chemicals that have been detected in of greater than one percent, but were In summary, EPA evaluated publicly sewage sludge may only be present dropped from further consideration available information with respect to infrequently or in trace amounts, and because of lack of data on human presence in sewage sludge, toxicity may not present a risk of adverse effects toxicity and/or environmental (including human health benchmarks), to human health or the environment. properties. EPA has preliminarily persistence, mobility and potential for Also, the properties or degree of toxicity determined that 23 of the 44 are either exposure for the pollutants contained in of such chemicals may make their non-toxic or non-persistent in the each of the four groups of pollutants presence, even in higher amounts, of environment, but is continuing to described above: (1) The 254 pollutants little risk to human health or the evaluate them. with a low frequency of detection in the environment. As noted above, the NRC Next, EPA conducted a literature 1988–89 NSSS, (2) the 44 toxic concluded that while there are search of publicly available information pollutants that were detected at a significant data gaps, there is currently to identify information on pollutants in frequency of greater than one percent in no documented scientific evidence that sewage sludge since 1990, including the 1988–1989 NSSS, but that had the existing Part 503 regulations have information on pollutants that were not insufficient information to be able to failed to protect public health. These among the 411 originally identified perform subsequent evaluation, (3) the results, however, are an important step pollutants. EPA has collected 459 pollutants that were not the subject of forward in that they identify chemicals scientific papers from national and Rounds One or Two but are covered in for which sufficient new information international government entities, the 243 papers that turned up in the exists to proceed to a risk-based universities, non-profit and other literature search, and (4) the 170 screening analysis, as well as data gaps private entities for the time period of pollutants for which some health that must be filled for other chemicals 1990–2002, the date of the last NSSS to benchmark exists in the literature. before such a screening analysis can be the present (USEPA, 2002d). Of these These four groups of pollutants as conducted.

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EPA expects to complete its risk- ongoing. Ian L. Pepper, Director. WERF, 2003. Dynamic Model to based screening analysis of chemicals Tuscon, Arizona. Assess Microbial Health Risks for which adequate information is USEPA, 1994. A Plain English Guide Associated with Beneficial Uses of currently available by January 2004. At to the EPA Part 503 Biosolids Rule. 190 Biosolids. Cooperative Agreement No. that time EPA will identify those pages. Office of Water, Office of CR–825237. Alexandria, VA. pollutants, if any, for which EPA plans Wastewater Management. Available Dated: April 2, 2003. to initiate a rulemaking under section online at: http://www.epa.gov/owm/ G. Tracy Mehan III, 405(d). EPA requests comment on the mtb/biosolids/503pe/index.htm. Assistant Administrator, Office of Water. methodology and results to date of its USEPA, 1996. Technical Support review under section 405(d)(2)(C) of the Document for the Round Two Sewage [FR Doc. 03–8654 Filed 4–8–03; 8:45 am] CWA. EPA also requests information Sludge Pollutants. EPA–822-R–96–003. BILLING CODE 6560–50–P that may help to fill data gaps for those Office of Water. Washington, DC. chemicals for which sufficient August, 1996. information is not yet available to USEPA, 2002a. Compilation of FEDERAL COMMUNICATIONS conduct a risk-based screening analysis. National Research Council (NRC) COMMISSION X. What Are the Primary Issues for Recommendations on Biosolids and [MM Docket No. 98–204; DA 03–1046] Public Comment? EPA Responses and Activities. 9 pages. Office of Water, Office of Science and Interim Policy Concerning Placement While the EPA is requesting Technology. Washington, DC. of Equal Employment Opportunity comments on all of the information USEPA, 2002b. Guidelines for Public File Report in a Broadcaster’s discussed in this Notice, the Agency Ensuring and Maximizing the Quality, Public File hopes that the public comment will also Objectivity, Utility, and Integrity of AGENCY: Federal Communications focus specifically on the following Information Disseminated by the Commission. aspects of this Notice: Environmental Protection Agency. EPA 1. The Agency’s preliminary strategy 260R–02–008. Office of Environmental ACTION: Notice. for responding to the NRC Information. Washington, DC. October SUMMARY: In this document, the Recommendations, given that the 2002. Available online at Http:// Commission gives notice of its interim Agency’s biosolids program does not www.epa.gov/oei/qualityguidelines. have sufficient resources to implement policy concerning the deadline for USEPA, 2002c. Screening History for placement of Equal Employment all of the recommendations. the Part 503 Rounds One and Two 2. EPA requests comment on its Opportunity public file reports in Proposal. 4 pages. Office of Water, review under section 405(d)(2)(C) of the stations’ public files. This document Office of Science and Technology. CWA. EPA also requests information also gives notice of groups that have Washington, DC. that may help to fill data gaps for those filed petitions for reconsideration in this USEPA, 2002d. Literature Search of chemicals for which sufficient matter regarding requirement Publicly Available Information to information is not yet available to modifications. Identify Information on Pollutants in conduct a risk-based screening analysis. ADDRESSES: Federal Communications 3. EPA’s plan to investigate the Sewage Sludge Since 1990. 48 pages. Office of Water, Office of Science and Commission, 445 12th Street, SW., possibility of developing a process for Washington, DC 20554. timely notification, recording, and Technology. Washington, DC. FOR FURTHER INFORMATION CONTACT: tracking incident reports in USEPA, 2002e. Human Health collaboration with other health-based Benchmarks for Potential Constituents Lewis Pulley (202) 418–1456, or Roy Federal agencies, such as the Centers for in Biosolids. 11 pages. Office of Water, Boyce (202) 418–1438, Policy Division, Disease Control and Prevention. Office of Science and Technology. Media Bureau. 4. The Agency’s plan to begin Washington, DC. SUPPLEMENTARY INFORMATION: This is a designing a survey using information USEPA, 2002f. List of Analytes from summary of the Commission’s Public obtained from published pollutant the 1989 National Sewage Sludge Notice, MM Docketa No. 98–204, occurrence and effects data, State Survey Found in Less than 1% of the adopted and released March 31, 2003. occurrence data bases, and input Samples. 7 pages. Office of Water, Office The complete text of this Public Notice received during the public comment of Science and Technology. is available for inspection and copying period. Washington, DC. during normal business hours in the USEPA, 2002g. Summary of Analytes FCC Reference Center, Room CY–A257, XI. References from the 1989 National Sewage Sludge 445 12th Street, SW., Washington, DC NRC, 1996. Use of Reclaimed Water Survey. 12 pages. Office of Water, Office and may also be purchased from the and Sludge in Food Crop Production. of Science and Technology. Commission’s copy contractor, Qualex The National Academies Press. Washington, DC. International, Portals II, 445 12th Street Washington, DC. Available online at USEPA, 2002h. Potential Analytes. 5 SW., Room CY–B–402, Washington, DC http://www.nap.edu/catalog/5175.html pages. Office of Water, Office of Science 20554, telephone (202) 863–2893, NRC, 2002. Biosolids Applied to Land; and Technology. Washington, DC. facsimile (202) 863–2898, or via email Advancing Standards and Practices, USEPA, 2003a. In press. [email protected]. National Research Council of the Contemporary Perspectives on Synopsis of Public Notice National Academies. The National Infectious Disease Agents In Sewage Academies Press. Available online at Sludge and Manure. Compost Science & 1. By this Public Notice the Media http://search.nap.edu/books/ Utilization/The JG Press, Inc. Bureau establishes an interim policy 0309084865/html. USEPA, 2003b. Candidate Pollutants concerning the enforcement of the University of Arizona, National for Ongoing Sewage Sludge Evaluation. requirement of the Equal Employment Science Foundation, Water Quality 15 pages. Office of Water, Office of Opportunity (‘‘EEO’’) rule—§ 73.2080— Center, within the Environmental Science and Technology. Washington, that a broadcaster that is part of an Research Laboratory. Several studies DC. employment unit with five or more full-

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time employees place information copying in Room CY–A257, 445 12th Agreement No.: 011689–004. concerning its EEO efforts in its public Street, SW., Washington, DC or may be Title: ZIM/CSCL Space Charter file and on its Web site, if it has one. purchased from the Commission’s copy Agreement. See § 73.2080(c)(6). Pursuant to that contractor, Qualex International (202) Parties: Zim Israel Navigation Co., provision, the information is required to 863–2893. Oppositions to this petition Ltd., China Shipping Container Lines be placed in the station’s public file on must be filed by April 24, 2003. See Co. Ltd. the anniversary of the date the station is section 1.4(b)(1) of the Commission’s Synopsis: The amendment due to file its renewal application. The rules (47 CFR 1.4(b)(1)). Replies to an discontinues the chartering of space on information relates to specified EEO opposition must be filed within 10 days several strings and changes the space activities engaged in during the after the time for filing oppositions has allocations on the remaining strings. preceding year. expired. Agreement No.: 011841–001. 2. Petitions for reconsideration have Subject: Amendment of the FM Table Title: Lykes/Libra Slot Charter been filed by two groups of State of Allotments (Eagle, Fort Morgan, and Agreement. Broadcasters Associations urging, Hudson, Colorado, Bayard and Parties: Companhia Libra de among other matters, that the Bridgeport, Nebraska, and Douglas and Navegacao, Lykes Lines Limited, LLC. requirement should be modified to Fort Laramie, Wyoming). Synopsis: The subject agreement allow a ten day grace period for the Number of Petitions Filed: 1. modification deletes from Article specified information to be placed in the Subject: In the matter of the Federal- 5.1(a)(ii) the restrictions on the use of public file because broadcasters may not State Joint Board on Universal Service space by Libra to move cargo to/from have sufficient time to collect and (CC Docket No. 96—45). ports in the Dominican Republic and 1998 Biennial Regulatory Review— review data concerning activities that Venezuela. Consequently, these Streamlined Contributor Reporting occur shortly before the renewal filing countries are being added to the Requirements Associated with anniversary. The Commission will geographic scope. The modification also Administration of Telecommunications address the merits of these requests in clarifies that the agreement is intended Relay Service, North American due course. We will adopt an interim to cover the trade between the U.S. and Numbering Plan, Local Number enforcement policy of allowing a ten Mexico. The parties request expedited Portability, and Universal Service day grace period with respect to EEO review. Support Mechanisms (CC Docket No. public file reports due April 1, 2003. Agreement No.: 011848. Thus, licensees that must place an EEO 98–171). Telecommunications Services for Title: WWL/K-Line Transatlantic report in their public files on April 1, Space Charter Agreement. 2003, will comply with the deadline so Individuals with Hearing and Speech Disabilities, and the Americans with Parties: Wallenius Wilhelmsen Lines long as the reports are placed in the AS (‘‘WWL’’), Kawasaki Kisen Kaisha, public file by April 11, 2003. Disabilities Act of 1990 (CC Docket No. 90–571). Ltd. (‘‘K-Line’’). 3. Thereafter, until such time as the Synopsis: The proposed agreement Commission acts on the petitions for Administration of the North American Numbering Plan and North American would authorize WWL to take space on reconsideration, licensees should place K-Line’s roll-on, roll-off vessels EEO public file reports in their public Numbering Plan Cost Recovery Contribution Factor and Fund Size (CC operating between the Atlantic Coast of files by the due date. They may, the United States and ports in Europe however, base their public file reports Docket No. 92–237). Number Resource Optimization (CC (including the United Kingdom and on activity that concludes up to 10 days Docket No. 99–200). Scandinavia). The agreement also prior to the due date. Licensees who Telephone Number Portability (CC allows for a limited range of cooperative choose to conclude their reports prior to Docket No. 95–116). activities between the parties related to the day before the due date should Truth-in-Billing and Billing Format the space chartering. include any reportable information (CC Docket No. 98–170). Agreement No.: 200940–001. occurring between their cutoff date and Number of Petitions Filed: 1. Title: Broward County Tecmarine the due date in next year’s public file Marine Terminal Agreement. report. Marlene H. Dortch, Secretary. Parties: Broward County, Tecmarine Federal Communications Commission. Lines, Inc. [FR Doc. 03–8618 Filed 4–8?–03; 8:45 am] Marlene H. Dortch, Synopsis: The agreement amendment BILLING CODE 6712–01–M Secretary. terminates the agreement effective April [FR Doc. 03–8579 Filed 4–8–03; 8:45 am] 3, 2003. BILLING CODE 6712–01–P FEDERAL MARITIME COMMISSION By Order of the Federal Maritime Commission. Notice of Agreement(s) Filed Dated: April 4, 2003. FEDERAL COMMUNICATIONS Bryant L. VanBrakle, COMMISSION The Commission hereby gives notice of the filing of the following Secretary. [Report No. 2603] agreement(s) under the Shipping Act of [FR Doc. 03–8681 Filed 4–8–03; 8:45 am] BILLING CODE 6730–01–P Petition for Reconsideration of Action 1984. Interested parties can review or in Rulemaking Proceeding obtain copies of agreements at the Washington, DC offices of the April 3, 2003. Commission, 800 North Capitol Street, FEDERAL MARITIME COMMISSION Petition for Reconsideration has been NW., Room 940. Interested parties may Ocean Transportation Intermediary filed in the Commission’s rulemaking submit comments on an agreement to License Applicants proceeding listed in this Public Notice the Secretary, Federal Maritime and published pursuant to 47 CFR Commission, Washington, DC 20573, Notice is hereby given that the section 1.429(e). The full text of this within 10 days of the date this notice following applicants have filed with the document is available for viewing and appears in the Federal Register. Federal Maritime Commission an

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application for license as a Non-Vessel FEDERAL RESERVE SYSTEM DATES: Comments must be submitted on Operating Common Carrier and Ocean or before June 9, 2003. Freight Forwarder—Ocean Agency Information Collection ADDRESSES: Comments may be mailed to Transportation Intermediary pursuant to Activities: Proposed Collection; Ms. Jennifer J. Johnson, Secretary, Board section 19 of the Shipping Act of 1984 Comment Request of Governors of the Federal Reserve as amended (46 U.S.C. app. 1718 and 46 System, 20th Street and Constitution CFR 515). AGENCY: Board of Governors of the Federal Reserve System Avenue, N.W., Washington, DC 20551. Persons knowing of any reason why However, because paper mail in the SUMMARY: the following applicants should not Background. On June 15, Washington area and at the Board of receive a license are requested to 1984, the Office of Management and Governors is subject to delay, please contact the Office of Transportation Budget (OMB) delegated to the Board of consider submitting your comments by Intermediaries, Federal Maritime Governors of the Federal Reserve e-mail to Commission, Washington, DC 20573. System (Board) its approval authority [email protected], or under the Paperwork Reduction Act, as Non-Vessel Operating Common Carrier faxing them to the Office of the per 5 CFR 1320.16, to approve of and Secretary at 202–452–3819 or 202–452– Ocean Transportation Intermediary assign OMB control numbers to Applicants 3102. Comments addressed to Ms. collection of information requests and Johnson may also be delivered to the Pacific Atlantic Lines, Inc., 530 Main requirements conducted or sponsored Board’s mail facility in the West Street, Fort Lee, NJ 07024, Officer: by the Board under conditions set forth Courtyard between 8:45 a.m. and 5:15 Netanel Gonen President (Qualifying in 5 CFR 1320 Appendix A.1. Board– p.m., located on 21st Street between Individual). approved collections of information are Constitution Avenue and C Street, N.W. incorporated into the official OMB Members of the public may inspect Non-Vessel Operating Common Carrier inventory of currently approved and Ocean Freight Forwarder comments in Room MP–500 between collections of information. Copies of the 9:00 a.m. and 5:00 p.m. on weekdays Transportation Intermediary OMB 83–I’s and supporting statements Applicants pursuant to 261.12, except as provided and approved collection of information in 261.14, of the Board’s Rules United Aline Services Inc., 111 Great instruments are placed into OMB’s Regarding Availability of Information, Neck Road, Suite 312, Great Neck, NY public docket files. The Federal Reserve 12 CFR 261.12 and 261.14. 11021, Officer: Gao, Yunyan, may not conduct or sponsor, and the A copy of the comments may also be President (Qualifying Individual). respondent is not required to respond submitted to the OMB desk officer for Merco International, Inc., 7372 N.W. 35 to, an information collection that has the Board: Joseph Lackey, Office of Terrace, Miami, FL 33122, Officers: been extended, revised, or implemented Information and Regulatory Affairs, Ricardo Olascoaga, Director on or after October 1, 1995, unless it Office of Management and Budget, New (Qualifying Individual), Jorge displays a currently valid OMB control Executive Office Building, Room 10235, Santiago Artaza, President. number. Washington, DC 20503. Leonardi & Co. USA, Inc., One Cross Request for Comment on Information FOR FURTHER INFORMATION CONTACT: A Island Plaza, Suite 312, Rosedale, NY Collection Proposal copy of the Paperwork Reduction Act 11422, Officers: Ralph Di Rado, The following information collection, Submission (OMB 83–I), supporting Secretary (Qualifying Individual), which is being handled under this statement, and other documents that Italo Leonardi, President. delegated authority, has received initial will be placed into OMB’s public docket Chicago Int’l Forwarders Inc., 423E. Board approval and is hereby published files once approved may be requested Irving Park Road, Wood Dale, IL for comment. At the end of the comment from the agency clearance officer, whose 60191, Officers: Janette Nham, period, the proposed information name appears below. President (Qualifying Individual), collection, along with an analysis of Cindy Ayouch, Federal Reserve Board Luis Spina, Vice President. comments and recommendations Clearance Officer (202–452–3829), Division of Research and Statistics, Ocean Freight Forwarder—Ocean received, will be submitted to the Board Board of Governors of the Federal Transportation Intermediary for final approval under OMB delegated Reserve System, Washington, DC 20551. Applicants: authority. Comments are invited on the following: Telecommunications Device for the Deaf MBC Brokers Inc., 13823 Judah Avenue, (TDD) users may contact (202–263– a. whether the proposed collection of Hawthorne, CA 90250, Officers: John 4869), Board of Governors of the Federal information is necessary for the proper Hanson, President (Qualifying Reserve System, Washington, DC 20551. performance of the Federal Reserve’s Individual), Ann Hanson, Secretary. functions, including whether the Proposal To Approve Under OMB One Bin.Com, Inc., 3406 SW 26 Terrace, information has practical utility; Delegated Authority the Extension for Unit C–10, Fort Lauderdale, FL 33312, b. the accuracy of the Federal Three Years, Without Revision, of the Officers: Leon Williams, Vice Following Report President (Qualifying Individual). Reserve’s estimate of the burden of the Michael Singh, CEO. proposed information collection, Report title: Reporting and Disclosure including the validity of the Deans International Shipping Co., Inc., Requirements Associated with methodology and assumptions used; 217–21 Merrick Blvd., Laurelton, NY Regulation P 11413, Officer: Sharon Deans, c. ways to enhance the quality, utility, Agency form number: unnum Reg P President (Qualifying Individual). and clarity of the information to be OMB control number: 7100-0294 collected; and Frequency: Reporting, on–occasion; Dated: April 4, 2003. d. ways to minimize the burden of and disclosure, annually. Bryant L. VanBrakle, information collection on respondents, Reporters: State member banks, Secretary. including through the use of automated subsidiaries of state member banks, [FR Doc. 03–8682 Filed 4–8–03; 8:45 am] collection techniques or other forms of bank holding companies and it’s BILLING CODE 6730–01–P information technology. subsidiaries or affiliates, branches and

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agencies of foreign banks, commercial comment periods have closed. Each of Act of 1956 (12 U.S.C. 1841 et seq.) lending companies owned or controlled these agencies have received comments. (BHC Act), Regulation Y (12 CFR Part by foreign banks, corporations operating After the Federal Reserve’s public 225), and all other applicable statutes under section 25 or 25A of the Federal comment period has closed, the and regulations to become a bank Reserve Act, and customers of these agencies will jointly review all of the holding company and/or to acquire the financial institutions. comments received. Then the agencies assets or the ownership of, control of, or Annual reporting hours: 427,500 will publish a joint final notice with the power to vote shares of a bank or hours revised final estimates in the Federal bank holding company and all of the Estimated average hours per response: Register. banks and nonbanking companies Financial institution disclosure Board of Governors of the Federal owned by the bank holding company, requirements: Initial notice, 40 hours; Reserve System, April 3, 2003. including the companies listed below. annual notice, 1 hour; opt–out notice to The applications listed below, as well consumers, 1 hour; and notice of change Jennifer J. Johnson, Secretary of the Board. as other related filings required by the in terms, 1 hour. Consumer reporting Board, are available for immediate requirements: opt–out notice, 1 hour; [FR Doc. 03–8614 Filed 4–8–03; 8:45 am] BILLING CODE 6210–01–S inspection at the Federal Reserve Bank and continuing right to opt–out, 1 hour. indicated. The application also will be Number of respondents: 9,500 Small businesses are affected. available for inspection at the offices of General description of report: This FEDERAL RESERVE SYSTEM the Board of Governors. Interested information collection is mandatory (12 persons may express their views in U.S.C. 248) and the Gramm–Leach– Change in Bank Control Notices; writing on the standards enumerated in Bliley Act (Pub. L. 106–102, Sec. 504). Acquisition of Shares of Bank or Bank the BHC Act (12 U.S.C. 1842(c)). If the Since the Federal Reserve does not Holding Companies proposal also involves the acquisition of a nonbanking company, the review also collect any information, no issue of The notificants listed below have includes whether the acquisition of the confidentiality normally arises. applied under the Change in Bank nonbanking company complies with the Abstract: The information collection Control Act (12 U.S.C. 1817(j)) and standards in section 4 of the BHC Act pursuant to Regulation P is triggered by § 225.41 of the Board’s Regulation Y (12 (12 U.S.C. 1843). Unless otherwise the establishment of a relationship CFR 225.41) to acquire a bank or bank noted, nonbanking activities will be between a customer and a financial holding company. The factors that are conducted throughout the United States. institution. The regulation ensures that considered in acting on the notices are Additional information on all bank financial institutions provide customers set forth in paragraph 7 of the Act (12 holding companies may be obtained notice of the privacy policies and U.S.C. 1817(j)(7)). practices of financial institutions and a The notices are available for from the National Information Center means to prevent the disclosure of immediate inspection at the Federal Web site at www.ffiec.gov.nic/. nonpublic personal information, in Reserve Bank indicated. The notices Unless otherwise noted, comments certain circumstances. Where also will be available for inspection at regarding each of these applications applicable, financial institutions are the office of the Board of Governors. must be received at the Reserve Bank required to provide an initial notice and Interested persons may express their indicated or the offices of the Board of an annual notice of their privacy views in writing to the Reserve Bank Governors not later than May 5, 2003. policies and practices, opt–out notices, indicated for that notice or to the offices A. Federal Reserve Bank of Dallas and revised notices containing changes of the Board of Governors. Comments (W. Arthur Tribble, Vice President) 2200 in policies and procedures. must be received not later than April 24, North Pearl Street, Dallas, Texas 75201- In 2000, the Federal Reserve, along 2003. 2272: with the Federal Deposit Insurance A. Federal Reserve Bank of Dallas 1. Southwest Bancorporation of Corporation (FDIC), the Office of the (W. Arthur Tribble, Vice President) 2200 Texas, Inc., Houston, Texas, to acquire Comptroller of the Currency (OCC), the North Pearl Street, Dallas, Texas 75201- 100 percent of the voting shares of Office of Thrift Supervision (OTS), 2272: Maxim Financial Holdings of Delaware, National Credit Union Administration 1. Jerry L. Clark, De Leon, Texas; to Inc., Wilmington, Delaware; and Maxim (NCUA), Federal Trade Commission acquire voting shares of F&M Financial Holdings, Inc., Dickinson, (FTC), and Securities and Exchange Bancshares, Inc., De Leon, Texas, and Texas, and thereby indirectly acquire Commission (SEC) (≥the agencies≥) thereby indirectly acquire voting shares voting shares of MaximBank, Dickinson, jointly agreed on burden estimates when of Farmers and Merchants Bank, De Texas. they promulgated the privacy Leon, Texas. B. Federal Reserve Bank of San regulations. Board of Governors of the Federal Reserve In early 2003, an inter–agency System, April 4, 2003. Francisco (Maria Villanueva, Consumer 1 Regulation Group) 101 Market Street, working group agreed to jointly re– Robert deV. Frierson, estimate the paperwork burden of their San Francisco, California 94105-1579: Deputy Secretary of the Board. privacy regulations. To avoid expiration [FR Doc. 03–8675 Filed 4–8–03; 8:45 am] 1. Western Alliance Bancorporation, of the authority for the information Las Vegas, Nevada; to acquire 100 BILLING CODE 6210–01–S collections while the review is being percent of the voting shares of Torrey completed, the group agreed to Pines Bank, San Diego, California (in separately publish for comment FEDERAL RESERVE SYSTEM organization). estimates based on the 2000 Board of Governors of the Federal Reserve assumptions. The OCC, FDIC, and OTS Formations of, Acquisitions by, and System, April 4, 2003. published initial Federal Register Mergers of Bank Holding Companies Robert deV. Frierson, notices using the 2000 estimates; the The companies listed in this notice Deputy Secretary of the Board. 1 The working group consists of staff from the have applied to the Board for approval, [FR Doc. 03–8676 Filed 4–8–03; 8:45 am] Federal Reserve, FDIC, OCC, and OTS. pursuant to the Bank Holding Company BILLING CODE 6210–01–S

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FEDERAL RESERVE SYSTEM 225.28(b)(8)(i) of Regulation Y; and in Former name New name permissible investing and trading Notice of Proposals To Engage in activities, pursuant to section Battle Creek Federal Hart-Dole-Inouye Permissible Nonbanking Activities or 225.28(b)(8)(ii)(a) of Regulation Y. Center, 50 N. Federal Center, 50 To Acquire Companies That are Washington Ave- N. Washington Av- Board of Governors of the Federal Reserve nue, Battle Creek, enue, Battle Creek, Engaged in Permissible Nonbanking System, April 3, 2003. Activities MI 49017. MI 49017. Robert deV. Frierson, The companies listed in this notice Deputy Secretary of the Board. 4. Who should we contact for further have given notice under section 4 of the [FR Doc.03–8613 Filed 4–8–03; 8:45 am] information regarding redesignation of Bank Holding Company Act (12 U.S.C. BILLING CODE 6210–01–S this Federal Building? 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage de novo, or to General Services Administration, acquire or control voting securities or Public Buildings Service, Office of the assets of a company, including the GENERAL SERVICES Commissioner, Attn: Paul Chistolini, companies listed below, that engages ADMINISTRATION 1800 F Street, NW., Washington, DC either directly or through a subsidiary or 20405, Telephone Number: (202) 501– other company, in a nonbanking activity [FPMR Bulletin 2003–B1] 1100, E-mail Address: that is listed in § 225.28 of Regulation Y [email protected]. (12 CFR 225.28) or that the Board has Federal Management Regulation; [FR Doc. 03–8661 Filed 4–8–03; 8:45 am] determined by Order to be closely Redesignation of a Federal Building BILLING CODE 6820–23–P related to banking and permissible for bank holding companies. Unless AGENCY: Public Buildings Service (P), otherwise noted, these activities will be GSA. INTERNATIONAL TRADE conducted throughout the United States. COMMISSION Each notice is available for inspection ACTION: Notice of a bulletin. at the Federal Reserve Bank indicated. [Inv. No. 337–TA–490] The notice also will be available for SUMMARY: The attached bulletin inspection at the offices of the Board of announces the redesignation of a In the Matter of Certain Power Governors. Interested persons may Federal Building. Amplifier Chips, Broadband Tuner express their views in writing on the Expiration Date: This bulletin expires Chips, Transceiver Chips, and question whether the proposal complies September 3, 2003. However, the Products Containing Same; Notice of with the standards of section 4 of the building redesignation announced by Correction BHC Act. Additional information on all this bulletin will remain in effect until AGENCY: International Trade bank holding companies may be canceled or superseded. Commission. obtained from the National Information Center Web site at www.ffiec.gov/nic/. FOR FURTHER INFORMATION CONTACT: Paul ACTION: Correction of notice of Unless otherwise noted, comments Chistolini, General Services investigation. regarding the applications must be Administration, Public Buildings SUMMARY: Due to a typographical error, received at the Reserve Bank indicated Service (P), Washington, DC 20405; at the Commission’s notice published in or the offices of the Board of Governors (202) 501–1100, or by e-mail at the Federal Register on April 4, 2003 not later thanof Governors not later than [email protected]. (68 F.R.16551) incorrectly stated that April 23, 2003. Dated: March 31, 2003. the complaint was filed on March 3, A. Federal Reserve Bank of New Stephen A. Perry, York (Betsy Buttrill White, Senior Vice 2002. The corrected date is March 3, Administrator of General Services. President) 33 Liberty Street, New York, 2003. New York 10045-0001: GENERAL SERVICES By order of the Commission. 1. Commerzbank Aktiengesellschaft, ADMINISTRATION Issued: April 4, 2003. Frankfurt, Germany; through its Marilyn R. Abbott, [FPMR Bulletin 2003-B1] subsidiary, Commerzbank Capital Secretary to the Commission. Markets Corporation, New York, New Federal Management Regulation; [FR Doc. 03–8652 Filed 4–8–03; 8:45 am] York, to engage in extending credit and Redesignation of a Federal Building BILLING CODE 7020–02–P servicing loans, pursuant to section 225.28(b)(1) of Regulation Y; acting as To: Heads of Federal Agencies. investment or financial advisor, Subject: Redesignation of a Federal DEPARTMENT OF JUSTICE pursuant to section 225.28(b)(6) of Building. Regulation Y; providing securities 1. What is the purpose of this Notice of Lodging of Consent Decree brokerage services, pursuant to section bulletin? The attached bulletin Under the Oil Pollution Act (OPA) 225.28(b)(7)(i) of Regulation Y; engaging announces the redesignation of a in riskless principal transactions, Federal Building. In accordance with Departmental pursuant to section 225.28(b)(7)(ii) of policy, 28 CFR 50.7, notice is hereby Regulation Y; providing private 2. When does this bulletin expire? given that a proposed Consent Decree in placement services, pursuant to section This bulletin expires September 3, 2003. United States of America v. BD Oil 225.28(b)(7)(iii) of Regulation Y; However, the building redesignation Gathering, Inc., Civil Action No. 2:03– engaging in other transactional services, announced by this bulletin will remain 0253, was lodged with the United States pursuant to section 225.28(b)(7)(v) of in effect until canceled or superseded. District Court for the Southern District Regulation Y; underwriting and dealing 3. Redesignation. The former and new of West Virginia on March 24, 2003. in government obligations and money name of the building being redesignated In this action, the United States market instruments, pursuant to section are as follows: sought assessment of civil penalties for

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Defendant’s violation of section DEPARTMENT OF JUSTICE Atlanta, Georgia 30303. During the 311(b)(3) of the Clean Water Act, 33 public comment period, the decree may U.S.C. 1321(b)(3) and the implementing Notice of Lodging of Consent Decree also be examined on the following regulations at 40 CFR part 100. On or Under the Clean Water Act Department of Justice Web site, http:// about December 23, 1998, BD Oil, by Under 28 CFR 50.7, notice is hereby www.usdoj.gov/enrd/open.html. A copy and through its employee or agent, given that on April 1, 2003, a proposed of the decree may also be obtained by operated a truck in Roane County, West consent decree (‘‘decree’’) in United mail from the Consent Decree Library, Virginia, that ruptured and discharged States v. Colonial Pipeline Company, PO Box 7611, U.S. Department of approximately 92 barrels of oil into the Civil Action No. 1:00–CV–3142 JTC, Justice, Washington, DC 20044–7611 or Big Sandy Creek. Within ten days of was lodged with the United States by faxing or e-mailing a request to Tonia entry of the Consent Decree, BD Oil will District Court for the Northern District Fleetwood ([email protected]), pay a civil penalty of $11,000.00 to the of Georgia. fax no. (202) 514–0097, phone confirmation number (202) 514–1547. In Oil Spill Liability Trust Fund. In In this action, the United States requesting a copy from the Consent addition to the civil penalty, BD Oil sought civil penalties for seven recent and significant spills from Colonial Decree Library, please enclose a check agrees to create and maintain a Spill in the amount of $11.25 (25 cents per Response Unit (SRU) to respond to oil Pipeline Company’s (‘‘Colonial’’) 5,500 mile pipeline. The United States also page reproduction cost) payable to the spills and oil discharges within a U.S. Treasury. designated portion of eastern Ohio and sought injunctive relief to prevent future western West Virginia. spills. Under the decree, Colonial will Ellen Mahan, pay a $34 million civil penalty for seven The Department of Justice will Assistant Chief, Environmental Enforcement spills that spilled 1.45 million gallons of Section, Environment and Natural Resources receive, for a period of thirty (30) days oil from its pipeline into waters in five Division. from the date of this publication, states. The $34 million civil penalty will [FR Doc. 03–8642 Filed 4–8–03; 8:45 am] comments relating to the proposed go to the United States’ Oil Pollution BILLING CODE 4410–15–M Consent Decree. Comments should be Liability Trust Fund, which underwrites addressed to the Assistant Attorney cleanups nationwide. General, Environment and Natural Colonial will also require Colonial to DEPARTMENT OF JUSTICE Resources Division, PO Box 7611, U.S. designate its entire pipeline as Department of Justice, Washington, DC potentially affecting ‘‘high consequence Notice of Lodging of Consent Decree 20044–7611, and should refer to United areas.’’ This will subject the entire Under the Clean Water Act States of America v. BD Oil Gathering, pipeline to the pipeline integrity Under 28 CFR § 50.7, notice is hereby Inc., D.J. Ref. 90–5–1–1–06959. regulations of the U.S. Department of Transportation’s Office of Pipeline given that on March 13, 2003, a The Consent Decree may be examined Safety (‘‘OPS’’). Under the terms of the proposed Consent Decree in United at the Office of the United States settlement, Colonial is also required to States v. Puerto Rico Aqueduct and Attorney, Southern District of West (1) inspect its corrosion protection Sewer Authority, et al., Civil Action No. Virginia, 3000 Virginia Street, Suite system along the entire pipeline system 01–1709 (JAF), was lodged with the 4000, Charleston, West Virginia 25301; every five years; (2) repair problems United States District Court for the and at U.S. Environmental Protection detected in the corrosion protection District of Puerto Rico. Agency, Region III Office, 1650 Arch system to meet the standards developed In this action the United States sought Street, Philadelphia, Pennsylvania by the National Association of Corrosion civil penalties and injunctive relief for 19103–2029. During the public Engineers (NACE); (3) maintain its right- the defendants’ alleged discharges of comment period, the proposed Consent of-ways, including mowing and untreated sewage from 471 pump Decree may also be examined on the removing debris; (4) have personnel on stations throughout the Commonwealth following Department of Justice Web site when utility or other excavation is of Puerto Rico and for the alleged failure site, http://www.usdoj.gov/enrd/ occurring within five feet of the to report certain discharges in violation open.html. A copy of the proposed pipeline; and (5) survey and inspect the of section 301(a) and 402 of the Clean Consent Decree may also be obtained by pipeline where it crosses water, and Water Act, 33 U.S.C. 1311(a) and 1342. (1) mail from the Consent Decree address areas of the pipeline that are The proposed Consent Decree provides Library, PO Box 7611, U.S. Department exposed or insufficiently buried. for the payment of a $1 million civil of Justice, Washington, DC 20044–7611; The Department of Justice will receive penalty by PRASA and Compan˜ ia de or by (2) faxing or e-mailing a request to for a period of thirty (30) days from the Agusa de Puerto Rico, its former Tonia Fleetwood (e-mail: date of this publication comments operator by contact, as well as the [email protected]; fax no: (202) relating to the decree. Comments should performance of a Supplemental 514–0097; phone confirmation (202) be addressed to the Assistant Attorney Environmental Project (‘‘SEP’’) by PRASA. The SEP is valued at $1 million 514–1547). In requesting a copy from General, Environment and Natural Resources Division, PO Box 7611, U.S. and is designed to improve drinking the Consent Decree Library, please Department of Justice, Washington, DC water quality for certain communities enclose a check in the amount of $8.75 20044–7611, and should refer to United which are not presently hooked up to (25 cents per page reproduction cost), States v. Colonial Pipeline Company, PRASA water filtration systems. The made payable to the U.S. Treasury. D.J. Ref. 90–5–1–1–4367. proposed Consent Decree also requires Robert Brook, The decree may be examined at the PRASA and its current operator by Assistant Section Chief, Environmental Office of the United States Attorney, contract, ONDEO de Puerto Rico, to Enforcement Section, Environment and U.S. Courthouse, Suite 1800, 75 Spring develop and implement an EPA- Natural Resources Division. Street, SW., Atlanta, Georgia 30303, and approved system-wide operation and [FR Doc. 03–8644 Filed 4–8–03; 8:45 am] at U.S. the U.S. Environmental maintenance and spill response and Protection Agency—Region IV, Atlanta cleanup plan for all pump stations BILLING CODE 4410–15–M Federal Center, 61 Forsythe Street, owned by PRASA, as well as to perform

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specific remedial actions at designated brokers as required by the ‘‘21st Century ROUTINE USES OF RECORDS MAINTAINED IN THE pump stations. Department of Justice Appropriations SYSTEM, INCLUDING CATEGORIES OF USERS AND The Department of Justice will receive Authorization Act’’. Section 11015(a) of THE PURPOSE OF SUCH USES: for a period of thirty (30) days from the the statute provides ‘‘Not later than 6 None. date of this publciaton comments months after the date of enactment of DISCLOSURE TO CONSUMER REPORTING relating to the Consent Decree. this Act, the Attorney General shall AGENCIES: Comments should be addressed to the establish a list of annuity brokers who None. Assistant Attorney General, meet minimum qualifications for Environment and Natural Resources providing annuity brokerage services in POLICIES AND PRACTICES FOR STORING, Division, PO Box 7611, U.S. Department connection with structured settlements RETRIEVING, ACCESSING, RETAINING AND of Justice, Washington, DC 20044–7611, entered by the United States. This list DISPOSING OF RECORDS IN THE SYSTEM: and should refer to United States v. shall be updated upon request by any STORAGE: Puerto Rico Aqueduct and Sewer annuity broker that meets the minimum Paper records are maintained in filing Authority, et al., Civil Action No. 01– qualifications for inclusion on the list. cabinets. Automated data, including 1709 (JAF), D.J. Ref. 90–5–1–1–06475/1. The Attorney General shall transmit records that have been transformed into The Consent Decree may be examined such list, and any updates to such list, electronic form, are stored on computer at the Office of the United States to all United States Attorneys.’’ This discs or magnetic tapes, which are also Attorney for the District of Puerto Rico, notice is published in accordance with stored in cabinets. Federal Office Building, Room101, that statutory requirement. RETRIEVABILITY: Carlos E. Chardon Avenue, Hato Rey, The Department is providing a report Puerto Rico 00918, and at U.S EPA to OMB and the Congress. Files and automated data are retrieved by name of an individual. Region II, Caribbean Environmental Dated: April 2, 2003. Protection Division, 1492 Ponce de Leon Paul R. Corts, SAFEGUARDS: Avenue, Suite 207, San Juan, Puerto Files and automated data are Rico 00907. During the public comment Assistant Attorney General for Administration. maintained under supervision of Civil period, the Consent Decree may also be Division personnel or their contractors. examined on the following Department JUSTICE/CIV–005 During working hours—only authorized of Justice Web site, http:// SYSTEM NAME: personnel, with the appropriate www.usdoj.gov/enrd/open.html. A copy authority may handle, retrieve, or of the Consent Decree may also be Annuity Brokers List System. disclose any information contained obtained by mail from the Consent SECURITY CLASSIFICATION: therein. Access to electronic records is Decree Library, PO Box 7611, U.S. controlled by password or other user None. department of Justice, Washington, DC identification code. 20044–7611 or by faxing or e-mailing a SYSTEM LOCATION: request to Tonia Fleetwood RETENTION AND DISPOSAL: ([email protected]), fax no. Civil Division, U.S. Department of A request for authority to maintain (202) 514–0097, phone confirmation Justice, 950 Pennsylvania Avenue, NW., and dispose of annuity broker list number (2020 514–1547. In requesting a Washington, DC 20530; Department of records has been submitted to the copy from the Consent Decree Library, Justice—Records Management Unit, National Archives and Records please enclose a check in the amount of 2711 Prosperity Avenue, Fairfax, VA Administration and is pending. In the $12.25 (for a copy without appendices) 22031; and Federal Records Center, interim, all records received will be or $18.25 (for a copy with appendices) Suitland, MD 20409. retained and no records will be (25 cents per page reproduction cost), CATEGORIES OF INDIVIDUALS COVERED BY THE destroyed. payable to the U.S. Treasury. SYSTEM: SYSTEM MANAGER(S) AND ADDRESS: Catherine R. McCabe, Individuals who are seeking to be Office of the Assistant Attorney Deputy Chief, Environmental Enforcement included in the list of annuity brokers General, Civil Division, 950 Section, Environment and Natural Resources mandated by section 11015 of the ‘‘21st Pennsylvania Avenue, NW., Division. Century Department of Justice Washington, DC 20530. [FR Doc. 03–8643 Filed 4–8–03; 8:45 am] Appropriations Authorization Act.’’ BILLING CODE 4410–15–M NOTIFICATION PROCEDURES: CATEGORIES OF RECORDS IN THE SYSTEM: Address inquiries to: Office of the Records in this system include: Assistant Attorney General, Civil DEPARTMENT OF JUSTICE declarations filed by annuity brokers Division, 950 Pennsylvania Avenue, [AAG/A Order No. 011–2003] and associated correspondence. NW., Washington, DC 20530. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: RECORD ACCESS PROCEDURES: Privacy Act of 1974; System of Records Public Law 107–273, 21st Century Individuals seeking access to Department of Justice Appropriations information about their records may Pursuant to the Privacy Act of 1974 (5 Authorization Act, Section 11015(a). write to the Office of the Assistant U.S.C. 552a), notice is hereby given that Attorney General, Civil Division, 950 the Civil Division, Department of PURPOSE: Pennsylvania Avenue, NW., Justice, is establishing a new system of These records are collected and Washington, DC 20530. The request records entitled ‘‘Annuity Brokers List maintained for the purpose of should state what records are sought System’’ Civil Division (CIV), JUSTICE/ establishing a list of annuity brokers and must include the requester’s full CIV–005. who meet minimum qualifications for name and current address. The request The Annuity Brokers List System is providing annuity brokerage services in must be signed before a notary or established to support the production connection with structured settlements signed, dated and submitted under and maintenance of a list of annuity entered by the United States. penalty of perjury.

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CONTESTING RECORD PROCEDURES: Drug Schedule registration of AccuStandard, Inc. to Individuals desiring to contest or manufacture the listed controlled amend information maintained in the Acetyldihydrocodeine (9051) ...... I substances is consistent with the public system should direct their request to the Benzylmorphine (9052) ...... I interest at this time. DEA has Office of the Assistant Attorney General, Desomorphine (9055) ...... I investigated AccuStandard, Inc. to Codeine methylbromide (9070) .... I ensure that the company’s registration is Civil Division, 950 Pennsylvania Difenoxin (9168) ...... I Avenue, NW., Washington, DC 20530. Hydromorphinol (9301) ...... I consistent with the public interest. This The request should clearly and Methyldihydromorphine (9304) ..... I investigation included inspection and concisely state what information is Morphine methylbromide (9305) .. I testing of the company’s physical being contested, the reason(s) for Morphine methylsulfonate (9306) I security systems, verification of the contesting it, and the proposed Nicomorphine (9312) ...... I company’s compliance with state and amendment to the record. Drotebanol (9335) ...... I local laws, and a review of the Allylprodine (9602) ...... I company’s background and history. RECORD SOURCE CATEGORIES: Alphamethadol (9605) ...... I Therefore, pursuant to 21 U.S.C. 823 Individuals submitting information Betaprodine (9611) ...... I Clonitazene (9612) ...... I and 28 CFR 0.100 and 0.104, the Deputy who are seeking to be included in the Dextromoramide (9613) ...... I Assistant Administrator, Office of Department of Justice list of annuity Diampromide (9615) ...... I Diversion Control, hereby orders that brokers. Diethylthiambutene (9616) ...... I the application submitted by the above Dimenoxadol (9617) ...... I firm for registration as a bulk SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS Dimepheptanol (9618) ...... I OF THE ACT: manufacturer of the basic classes of Dimethylthiambutene (9619) ...... I controlled substances listed is granted. None. Dixoaphetyl butyrate (9621) ...... I Dated: March 21, 2003. [FR Doc. 03–8641 Filed 4–8–03; 8:45 am] Dipipanone (9622) ...... I Ethylmethylthiambutene (9623) .... I Laura M. Nagel, BILLING CODE 4410–12–P Furethidine (9626) ...... I Deputy Assistant Administrator, Office of Hydroxypethidine (9627) ...... I Diversion Control, Drug Enforcement Ketobemidone (9628) ...... I Administration. DEPARTMENT OF JUSTICE Morpheridine (9632) ...... I [FR Doc. 03–8588 Filed 4–8–03; 8:45 am] Noracymethadol (9633) ...... I Drug Enforcement Administration Normethadone (9635) ...... I BILLING CODE 4410–09–M Norpipanone (9636) ...... I Manufacturer of Controlled Phenadoxone (9637) ...... I Substances; Notice of Registration Phenampromide (9638) ...... I DEPARTMENT OF JUSTICE Phenoperidine (9641) ...... I By Notice dated August 28, 2002, and Piritramide (9642) ...... I Drug Enforcement Administration published in the Federal Register on Proheptazine (9643) ...... I October 18, 2002, (67 FR 64417), Properidine (9644) ...... I Manufacturer of Controlled AccuStandard, Inc., 125 Market Street, Propiram (9649) ...... I Substances; Notice of Application New Haven, Connecticut 06513, made 1-Methyl-4-phenyl-4- I Pursuant to § 1301.33(a) of Title 21 of application by letter to the Drug propionoxypiperidine (9661). 1-(2-Phenylethyl)-4-phenyl-4- I the Code of Federal Regulations (CFR), Enforcement Administration (DEA) to this is notice that on February 14, 2003, be registered as a bulk manufacturer of acetoxypiperidine (9663). Tilidine (9750) ...... I Boehringer Ingelheim Chemicals, Inc., the basic classes of controlled Para-Fluorofentanyl (9812) ...... I 2820 N. Normandy Drive, Petersburg, substances listed below: 3-Methylfentanyl (9813) ...... I Virginia 23805, made application by Alpha-Methylfentanyl (9814) ...... I renewal, and on November 27, 2002, Drug Schedule Acetyl-alpha-methylfentanyl I made application by renewal, and on (9815). N=Ethylamphetamine (1475) ...... I November 27, 2002, made application Beta-Hydroxyfentanyl (9830) ...... I by letter to the Drug Enforcement N,N=Dimthylamphetamine (1480) I Beta-Hydroxy-3-methylfentanyl I Fenethylline (1503) ...... I (9831). Administration (DEA) for registration as Mecloqualone (2572) ...... I Alpha-Methylthiofentanyl (9832) ... I a bulk manufacturer of the basic classes Alpha-Ethyltryptamine (7249) ...... I 3-Methylthiofentanyl (9833) ...... I of controlled substances listed below: 3,4,5-Trimethoxyamphetamine I Thiofentanyl (9835) ...... I (7390). Nabilone (7379) ...... II Drug Schedule 2,5-Dimethoxy-4- I 1-Phenylcylohexylamine (7460) ... II ethylamphetamine (7399). Phenylacetone (8501) ...... II Amphetamine (1100) ...... II 5-Methoxy-3,4- I 1- II Methadone (9250) ...... II methylenedioxyamphetamine Piperidinocyclohexanecarbonitr- Methadone-intermediate (9254) ... II (7401). ile (8603). Methylphenidate (1724) ...... II Diethyltryptamine (7434) ...... I Isomethadone (9226) ...... II Levo-aphacetylmethadol (9648) ... II Dimethyltryptamine (7435) ...... I Metopon (9260) ...... II Fentanyl (9801) ...... II Psilocybin (7437) ...... I Piminodine (9730) ...... II Dextropropoxphene (9273) ...... II Psilocyn (7438) ...... I Racemorphan (9733) ...... II N-Ethyl-1-phenylcyclohexylamine I Bezitramide (9800) ...... II The firm plans to manufacture the (7455). listed controlled substances for 1-(1-Phenylcyclohexyl) pyrrolidine I The firm plans to manufacture small formulation into finished (PCPY) (7458). 1-[1-(2-Thienyl)cyclohexyl] pyrroli- I quantities of the listed controlled pharmaceuticals. dine (TCPY) (7473). substances to make reference standards. Any other such applicant and any N-Ethyl-3-piperidyl benzilate I No comments or objections have been person who is presently registered with (7482). received. DEA has considered the DEA to manufacture such substances N-Methyl-3-piperidyl benzilate I factors in Title 21, United States Code, may file comments or objections to the (7484). section 823(a) and determined that the issuance of the proposed registration.

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Any such comments or objections Administration, United States investigation has included inspection may be addressed, in quintuplicate, to Department of Justice, Washington, DC and testing of the company’s physical the Deputy Assistant Administrator, 20537, Attention: Drug Operations security systems, verification of the Office of Diversion Control, Drug Section, Domestic Drug Unit (ODOD), company’s compliance with state and Enforcement Administration, United and must be filed no later than May 9, local laws, and a review of the States Department of Justice, 2003. company’s background and history. Washington, DC 20537; Attention: Drug This procedure is to be conducted Therefore, pursuant to 21 U.S.C. 823 Operations Section, Domestic Drug Unit simultaneously with and independent and 28 CFR 0.100 and 0.104, the Deputy (ODOD) and must be filed no later than of the procedures described in 21 CFR Assistant Administrator, Office of June 9, 2003. 1301.34(b), (c), (d), (e), (f). As noted as Diversion Control, hereby orders that a previous notice at 40 FR 43745–46 Dated: March 21, 2003. the application submitted by the above (Sepember 23, 1975), all applicants for firm for registration as a bulk Laura M. Nagel, registration to import basic class of any manufacturer of the basic classes of Deputy Assistant Administrator, Office of controlled substance in Schedule I or II controlled substances listed above is Diversion Control, Drug Enforcement are and will continue to be required to granted. Administration. demonstrate to the Deputy Assistant Dated: March 21, 2003. [FR Doc. 03–8583 Filed 4–8–03; 8:45 am] Administrator, Office of Diversion Laura M. Nagel, BILLING CODE 4410–09–M Control, Drug Enforcement Administration that the requirements Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement for such registration pursuant to 21 Administration. DEPARTMENT OF JUSTICE U.S.C. 958(a), 21 U.S.C. 823(a), and 21 [FR Doc. 03–8587 Filed 4–8–03; 8:45 am] Drug Enforcement Administration CFR 1311.452(a), (b), (c), (d), (e), and (f) are satisfied. BILLING CODE 4410–09–M Importation of Controlled Substances; Dated: March 21, 2003. Notice of Application Laura M. Nagel, DEPARTMENT OF JUSTICE Deputy Assistant Administrator, Office of Pursuant to section 1008 of the Drug Enforcement Administration Controlled Substances Import and Diversion Control, Drug Enforcement Administration. Export Act (21 U.S.C. 958(i)), the [Docket No. 01–1] Attorney General shall, prior to issuing [FR Doc. 03–8585 Filed 4–8–03; 8:45 am] a registration under this Section to a BILLING CODE 4410–09–M The Church of the Living Tree; Denial bulk manufacturer of a controlled of Application substances in Schedule I or II and prior DEPARTMENT OF JUSTICE On November 4, 1999, and pursuant to issuing a registration under section to 21 U.S.C. 823(a), the Deputy Assistant 1002(a) authorizing the importation of Drug Enforcement Administration Administrator, Office of Diversion such a substance, provide Control, Drug Enforcement manufacturers holding registrations for Manufacturer of Controlled Administration (DEA), issued an Order the bulk manufacture of the substance Substances; Notice of Registration to Show Cause to the Church of the an opportunity for a hearing. Living Tree (Respondent) of Leggett, By Notice dated October 5, 2001, and Therefore, in accordance with California, proposing to deny its published in the Federal Register on § 1301.34 of Title 21, Code of Federal application for DEA Certificate of October 17, 2001, (66 FR 52780), Regulations (CFR), notice is hereby Registration as a manufacturer of Boehringer Ingelheim Chemicals, Inc., given that on February 14, 2003, marijuana, a Schedule I controlled 2820 N. Normandy Drive, Petersburg, Boehringer Ingelheim Chemicals, Inc. substance. The Order to Show Cause VA 23805, made application by renewal 2820 N. Normandy Drive, Petersburg, alleged that the pending application to the Drug Enforcement Administration Virginia 23805, made application by should be denied because the to be registered as a bulk manufacturer renewal to the Drug Enforcement Respondent’s proposed manufacture of the basic class of controlled Administration to be registered as an and distribution of marijuana for human substances listed below: importer of Phenylacetone (8501), a consumption was a purpose not in basic class of controlled substance listed Drug Schedule conformity with the provisions of the in Schedule II. Controlled Substances Act, under 21 The firm plans to import Methylphenidate (1724) ...... II U.S.C., section 2 812(b)(1), 822(b), Phenylacetone for the bulk manufacture 823(f)(4), and 841(a)(1). of amphetamine. The firm plans to manufacture the By letter dated November 26, 1999, Any manufacturer holding, or apply listed controlled substance for the Respondent, through its trustee John for, registration as a bulk manufacturer formulation into finished Stahl (Mr. Stahl), timely filed a request of this basic class of controlled pharmaceuticals. for a hearing on the issues raised by the substance may file written comments on No comments or objections have been Order to Show Cause, stating, in part, or objections to the application received. DEA has considered the that Respondent sought ‘‘*** to described above and may, at the same factors in Title 21, United States Code, cultivate cannabis sativa for purposes time, file a written request for a hearing Section 823(a) and determined that the which are allowable under California on such application in accordance with registration of, Boehringer Ingelheim Law, and to process the remaining stalk 21 CFR 1301.43 in such form as Chemicals, Inc., to manufacture the into pulp for our paper mill.’’ Through prescribed by 21 CFR 1316.47. listed controlled substances is inadvertence, this request was not Any such comments, objections, or consistent with the public interest at docketed for a possible hearing. As a requests for a hearing may be addressed, this time. DEA has investigated result, the then-Deputy Administrator of in quintuplicate, to the Deputy Assistant Boehringer Ingelheim Chemicals, Inc. to the DEA issued a final order finding that Administrator, Office of Diversion ensure that the company’s registration is Respondent had not responded to the Control, Drug Enforcement consistent with the public interest. This Order to Show Cause and denying

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Respondent’s application. 65 FR 50,567 On April 17, 2001, Judge Bittner marijuana manufacturing proposal, (August 3, 2000). However, by error, and issued her Opinion and Recommended ‘‘* * * it is clear that Respondent will the agency subsequently rescinded the Decision, granting the Government’s be renting space on its property to prior final order by order dated Motion for Summary Disposition and others, but [Respondent] will not be the November 21, 2000. 65 FR 75958 (2000). recommending that Respondent’s one manufacturing marijuana. Therefore The matter was then docketed before application for DEA registration be * * * since Respondent will not be Administrative Law Judge Mary Ellen denied. Neither party filed exceptions to manufacturing marijuana nor is it Bittner (Judge Bittner). Judge Bittner’s recommended ruling, proposing to manufacture marijuana, its On October 23, 2000, the Government and on June 12, 2001, the record was application to be a manufacturer of filed a Motion for Summary Disposition, transmitted to the Deputy Administrator marijuana must be denied.’’ 21 U.S.C. reiterating the allegations contained in for his final decision. The Deputy 822(a) and 823(a). The then-Deputy the Order to Show Cause and further Administrator has considered the record Administrator added, ‘‘*** if alleging, in part, that the manufacture of in its entirety, and pursuant to 21 CFR Respondent’s application is for marijuana for human consumption is a 1316.67, hereby issues his final order registration to manufacture marijuana purpose not in conformity with the based upon findings of fact and for non-human consumption, then it Controlled Substance Act. The conclusions of law as hereinafter set would have to be denied because Government further argued that DEA forth. The Deputy Administrator adopts California does not allow the cultivation rejected a previous petition to the Opinion and Recommended of marijuana for non-human reschedule marijuana when it found Decision of the Administrative Law consumption.’’ that the drug has no currently accepted Judge, and finds as follows: As noted above, on June 18, 1998, the medical use. Marijuana Scheduling On January 21, 1997, the Respondent Respondent submitted its most recent Petition; Denial of Petition; Remand, 59 submitted a prior application to DEA as application for DEA registration as a FR 10,499, 10,507 (1992). The a manufacturer of marijuana for human manufacturer of marijuana in the Government added that because the consumption. The Respondent proposed category of bulk synthesizer-extractor. Respondent’s previous DEA application to rent space on its property to In support of the application, the for registration as a marijuana individuals qualifying under California Respondent asserted that its intentions manufacturer was denied, the State law as medical marijuana patients, are to cultivate medical marijuana as a Respondent is now precluded from re- who would then cultivate marijuana for cooperative farm of California patients personal consumption, leaving the qualifying under the terms of the litigating the matter in its renewed effort mature stalks for Respondent to process Compassionate Use Act of 1996. The to obtain a similar registration under the into paper. On April 17, 1998, DEA Respondent further contends that Art.I, doctrine of res judicata. Robert A. issued an Order to Show Cause seeking sec. 8 and the Tenth Amendment to the Leslie, M.D., 64 FR 25,908 (1999); to deny the application on grounds that United States Constitution provides the Robert M. Golden, M.D., 63 FR 38,669 the Respondent was not authorized by right to States to regulate their internal (1998). the State of California to cultivate affairs. Therefore Respondent argues, On November 1, and December 1, marijuana. The Respondent filed a since the proposes uses for its 2000, the Respondent filed its Response timely request for hearing, and the registration complies with California to Motion for Summary Disposition and matter was docketed before Judge law, Respondent’s pending application Further Response to Motion for Bittner as Church of the Living Tree, should be granted. Summary Disposition respectively. In DEA Docket No. 98–26 (Church of the In the April 17, 2001, Opinion and its submissions, the Respondent argued Living Tree 1). On May 21, 1998, the Recommended Decision, Judge Bittner in essence that it ‘‘* * * intended to Government filed a motion summary found that while Respondent seeks cultivate medical marijuana as a disposition, alleging inter alia, that registration as a bulk synthesizer- cooperative farm of * * * patients California law did not permit extractor of marijuana, and although the qualifying under the terms of the cultivation or harvesting of marijuana, Respondent is apparently willing to Compassionate Use Act of 1996 (the and as a result of Respondent’s lack of modify its application to the ‘‘non- Compassionate Use Act).’’ As noted in state authorization to manufacture human consumption’’ category, the a previous DEA final order, effective marijuana for non-human consumption, Respondent’s application cannot be November 6, 1996, voters in California DEA could not grant its application for granted under either category. The adopted the Compassionate Use Act, registration as a matter of law. Deputy Administrator concurs with this which provides that persons may grow In response to the Government’s finding. DEA concluded in Church of or posses marijuana ‘‘upon the written motion, and with arguments similar in the Living Tree I that if Respondent or oral recommendation or approval of scope to its present request for rents out space to medical marijuana a physician.’’ Cal. Health & Safety Code registration, the Respondent asserted in patients to cultivate marijuana, section 11362.5 Marion ‘‘Molly’’ Fry, relevant part that the purpose of its Respondent will be the entity doing the M.D., 67 FR 78015, 78017 (2002). The application as a bulk manufacturer of cultivation and therefore cannot be Respondent further argued in relevant medical marijuana was decidedly ‘‘for registered as a bulk synthesizer- part that California’s marijuana law Human Consumption’’ and in extractor of marijuana. With respect to should be given deference by the compliance with California law. On July its instant application, the Respondent Federal Government, and the 31, 1998, Judge Bittner issued a has not indicated that it seeks Government’s motion for summary recommended decision, in which she registration for purposes of growing disposition rejected, since there granted the Government’s motion for marijuana for non-human consumption. remained a fundamental question for summary disposition and recommended In any event, there remains a lack of resolution by the instant proceedings: that the Respondent’s application be evidence before the Deputy whether Respondent’s application denied. Administrator that California law should denied despite its engaging in In his final order published as Church provides for the cultivation of marijuana activities that are now sanctioned under of the Living Tree, 63 FR 69,674 (1998), for non-human consumption. California state law (i.e., cultivation of the then-Deputy Administrator found The Respondent has once again marijuana for human consumption). that from a reading of the Respondent’s submitted an application for registration

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as a manufacture of marijuana for approved research projects, section Drug Schedule human consumption. Such use of a DEA 823(f).’’). Id. at 495 n.7. registration is not in conformity with In light of the Respondent’s pending Morphine (9300) ...... II provisions of the Controlled Substances DEA application which by law cannot Act. As noted above marijuana is listed be granted, the Deputy Administrator The firm plans to produce bulk in Schedule I of the Controlled concurs with Judge Bittner that there are products used for the manufacture or Substances Act (CSA). 21 U.S.C. 812(c); no material disputed facts in this matter. reagents and drug calibrator/controls, 21 CFR 1303.11. The CSA defines Accordingly, the Government’s motion DEA exempt products. Schedule I controlled substances as for summary disposition was properly Any other such applicant and any those drugs or other substances that entertained and granted. It is well person who is presently registered with have ‘‘a high potential for abuse,’’ ‘‘no settled that when no question of DEA to manufacture such substances current accepted medical use in material fact is involved, or when the may file comments or objections to the treatment in the United States,’’ and ‘‘a material facts are agreed upon, a issuance of the proposed registration. lack of accepted safety for use * * * plenary, adversary administrative Any such comments or objections under medical supervision.’’ Also, every proceeding involving evidence and may be addressed, in quintuplicate, to drug listed in Schedule I of the CSA cross-examination of witnesses is not the Deputy Assistant Administrator, lacks approval for marketing under the obligatory. The rationale is that Office of Diversion Control, Drug Federal Food Drug and Cosmetic Act Congress does not intend administrative Enforcement Administration, United (FDCA). Therefore, the Food and Drug agencies to perform meaningless tasks. States Department of Justice, Administration (FDA) has not approved See Gilbert Ross, M.D., 61 FR 8664 Washington, DC 20537, Attention: Drug marijuana for marketing as a drug. (1996); Philip E. Kirk, M.D., 48 FR Operations Section, Domestic Drug Unit The deleterious effects of marijuana 32,887 (1983), aff’d sub nom Kirk v. (ODOD) and must be filed no later than use have been outlined extensively in Mullen, 749 F.2d 297 (6th Cir. 1984); 60 days from publication. previous DEA final orders and will not NLRB v. International Association of Dated: March 21, 2003. be repeated at length here. Marion Bridge, Structural and Ornamental Laura M. Nagel, ‘‘Molly’’ Fry, M.D. at 79015. See also, 66 Ironworkers, AFL–CIO, 549 F.2d 634 Deputy Assistant Administrator, Office of FR 20038 (2001) 57 FR 10499 (1992). (9th Cir. 1977). For the above-stated Diversion Control, Drug Enforcement However, it bears mentioning again that reasons, the application of Respondent Administration. the numerous significant short-term side must be denied. [FR Doc. 03–8581 Filed 4–8–03; 8:45 am] effects and long term risks linked to Accordingly, the Deputy BILLING CODE 4410–09–M smoking marijuana, include damage to Administrator of the Drug Enforcement brain cells; lung problems such as Administration, pursuant to the bronchitis and emphysema; a authority vested in him by 21 U.S.C. 823 DEPARTMENT OF JUSTICE weakening of the body’s antibacterial and 824 and 28 CFR 0.100(b) and 0.104, defenses in the lungs; the lowering of hereby orders that the application for a Drug Enforcement Administration blood pressure; trouble with thinking DEA Certificate of Registration Manufacturer of Controlled and concentration; fatigue; sleepiness submitted by the Church of the Living Substances; Notice of Application and the impairment of motors skills. Id. Tree, be, and it hereby is, denied. This Marijuana was placed in Schedule I order is effective April 9, 2003. for the same fundamental reason that it Pursuant to § 1301.33(a) of Title 21 of has never been approved for sale by the Dated: March 26, 2003. the Code of Federal Regulations (CFR), FDA; there have never been any sound John B. Brown, III, this is notice that on August 20, 2002, Syva Company, Dade Behring Inc., scientific studies which demonstrate Deputy Administrator. Regulatory Affairs Department E1–310, that marijuana can be used safely and [FR Doc. 03–8590 Filed 4–8–03; 8:45 am] 20400 Mariana Avenue, Cupertino, effectively as medicine. See 66 FR BILLING CODE 4410–09–M 20038 (April 18, 2001) (DEA final order California, 95014, made application by denying petition to initiate proceedings letter to the Drug Enforcement to reschedule marijuana). The Supreme DEPARTMENT OF JUSTICE Administration (DEA) for registration as Court recently explained the legal a bulk manufacturer of the basic classes significance of marijuana’s placement in Drug Enforcement Administration of controlled substances listed below: Schedule I of the CSA: Manufacturer of Controlled Drug Schedule Whereas some other drugs (those in Substances; Notice of Application Schedules II through V) can be dispensed Tetrahydrocannabinols (7370) ..... I and prescribed for medical use, see 21 U.S.C. Pursuant to § 1301.33(a) of Title 21 of Ecogonine (9180) ...... II 829, the same is not true for marijuana. the Code of Federal Regulations (CFR), Morphine (9300) ...... II Indeed, the purposes of the Controlled this is notice that on November 13, Substances Act, marijuana has ‘‘no currently The firm plans to produce bulk accepted medical use’’ at all. 2002, Dade Behring Inc., Route 896 Corporate Boulevard, Building 100, products used for the manufacture of United States v. Oakland Cannabis Attn: RA/QA, P.O. Box 6101, Newark, reagents and drug calibrator/controls, Buyers’ Cooperative, 532 U.S. 482, 491 Delaware, 19714, made application by DEA exempt products. (2001). letter to the Drug Enforcement Any other such applicant and any Federal law prohibits human Administration (DEA) for registration as person who is presently registered with consumption of marijuana outside of a bulk manufacturer of the basic classes DEA to manufacture such substances FDS-approved, DEA registered research. of controlled substances listed below: may file comments or objections to the Id. at 490 (‘‘For marijuana (and other issuance of the proposed registration. drugs that have been classified as Drug Schedule Any such comments or objections ‘schedule I’ controlled substances), may be addressed, in quintuplicate, to there is but one express exception, and Tetrahydrocannabinols (7370) ..... I the Deputy Assistant Administrator, it is available only for Government Ecogonine (9180) ...... II Office of Diversion Control, Drug

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Enforcement Administration, United complaint filed against the physician DEPARTMENT OF JUSTICE States Department of Justice, assistant license of Mr. Harris. The Washington, DC 20537, Attention: Drug Board found inter alia, that Mr. Harris Drug Enforcement Administration Operations Section, Domestic Drug Unit while working as a physician assistant [Docket No. 02–27] (ODOD) and must be filed no later than at his place of work was tested, with a 60 days from publication. positive result for controlled substances. Island Wholesale, Inc., Denial of Dated: March 21, 2003. The Board also found that Mr. Harris’ Application use of controlled substances impaired Laura M. Nagel, On October 5, 2001, the Deputy Deputy Assistant Administrator, Office of his ability to practice medicine and Assistant Administrator, Office of Diversion Control, Drug Enforcement endangered the health, safety and Division Control, Drug Enforcement Administration. welfare of his patients. As a result of its Administration (DEA), issued an Order [FR Doc. 03–8584 Filed 4–8–03; 8:45 am] findings, the Board ordered the to Show Cause to Island Wholesale, BILLING CODE 4410–09–M revocation of Mr. Harris’ physician Incorporated (Respondent), proposing to assistant license to practice medicine in deny its application, executed on March the State of Nevada. 31, 2000, for DEA Certificate of DEPARTMENT OF JUSTICE There is no evidence in this Registration as a distributor of the list I investigative file that the Board’s chemicals ephedrine and Drug Enforcement Administration revocation order has been stayed or pseudoephedrine. The Order to Show James E. Harris, P.A.; Revocation of lifted, nor is there evidence that Mr. Cause alleged that granting the Registration Harris’ physician assistant license to Respondent’s application would be practice medicine in the State of Nevada inconsistent with the public interest as On November 19, 2002, the Deputy has been reinstated. Therefore, the that term is used in 21 U.S.C. 823(h). Assistant Administrator, office of Deputy Administrator finds that since The Order to Show Cause was Diversion Control, Drug Enforcement Mr. Harris is not currently authorized to delivered to the Respondent by certified Administration (DEA), issued an Order practice medicine in Nevada, it is mail, and the Respondent timely to Show Cause to James Harris, P.A. reasonable to infer that he is not requested a hearing. However, after the matter was docketed before (Mr. Harris) of Henderson, Nevada, authorized to handle controlled Administrative Law Judge Gail A. notifying him of an opportunity to show substances in that state. cause as to why DEA should not revoke Randall (Judge Randall), and the his DEA Certificate of Registration, DEA does not have statutory authority Government submitted its Prehearing MH0604846, as a physician’s assistant under the Controlled Substances Act to Statement, the Respondent, through its under 21 U.S.C. 824(a)(3), and deny any issue or maintain a registration if the legal counsel, withdrew its opposition pending applications for renewal of that applicant or registrant is without state to the denial of its DEA application for registration, pursuant to 21 U.S.C. 823(f) authority to handle controlled registration. In response to the for reason that Mr. Harris is not substances in the state in which he Respondent’s request, Judge Randall authorized to handle controlled conducts business. See 21 U.S.C. also found that the Respondent had substances in the State of Nevada. The 802(21), 823(f) and 824(a)(3). This likewise withdrawn its request for order also notified Mr. Harris that prerequisite has been consistently hearing. Accordingly, on April 18, 2002, should no request for a hearing be filed upheld. See Joseph Thomas Allevi, Judge Randall issued a Termination within 30 days, his hearing right would M.D., 67 FR 35581 (2002); Dominick A. Order terminating all matters before her be deemed waived. Ricci, M.D., 58 FR 51104 (1993); Bobby and the matter was subsequently The Order to Show Cause was sent by Watts, M.D., 53 FR 11919 (1988). transmitted to the Deputy Administrator certified mail to Mr. Harris at a Here, it is clear that Mr. Harris is not for Final Agency Decision. residential location in Henderson, licensed to handle controlled substances In light of the withdrawal of its Nevada and DEA received a signed in Nevada, where he is registered with request for hearing, the Deputy receipt indicating that it was received DEA. Therefore, he is not entitled to Administrator finds that the Respondent on December 5, 2002. DEA has not maintain that registration. has waived its hearing right. Aqui received a request for hearing or any Enterprises, 67 FR 12576 (2002). After other reply from Mr. Harris or anyone Accordingly, the Deputy considering relevant material from the purporting to represent him in this Administrator of the Drug Enforcement investigative file in this matter, the matter. Administration, pursuant to the Deputy Administrator now enters his Therefore, the Deputy Administrator, authority vested in him by 21 U.S.C. 823 final order without a hearing pursuant finding that (1) 30 days have passed and 824 and 28 CFR 0.100(b) and 0.104, to 21 CFR 1301.43(d) and (e) and since the receipt of the Order to Show hereby orders that DEA Certificate of 1301.46. The Deputy Administrator Cause, and (2) no request for a hearing Registration, MH0604846, issued to finds as follows: having been received, concludes that James E. Harris, P.A., be, and it hereby List I chemicals are those that may be Mr. Harris is deemed to have waived his is, revoked. The Deputy Administrator used in the manufacture of a controlled hearing right. After considering material further orders that any pending substance in violation of the Controlled from the investigative file in this matter, applications for renewal of such Substances Act. 21 U.S.C. 802(34); 21 the Deputy Administrator new enters registration be, and they hereby are, CFR 1310.02(a). Pseudoephedrine and his final order without a hearing denied. This order is effective May 9, ephedrine are list I chemicals that are pursuant to 21 CFR 1301.43(d) and (e) 2003. commonly used to illegally manufacture and 1301.46. Dated: March 26, 2003. methamphetamine, a Schedule II The Deputy Administrator finds that controlled substance. on March 13, 2002, the Nevada State John B. Brown III, Methamphetamine is an extremely Board of Medical Examiners (the Board) Deputy Administrator. potent central nervous system issued Findings of Fact, Conclusions of [FR Doc. 03–8589 Filed 4–8–03; 8:45 am] stimulant, and its abuse is a growing Law and Order in response to a BILLING CODE 4410–09–M problem in the United States.

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The Deputy Administrator’s review of (5) Such other factors as are relevant On a related note, it is also unclear the investigative file reveals that the to and consistent with the public health whether Fouad Twaiti provided a false Respondent is a small candy distributor and safety. statement to DEA investigators when he located in Brooklyn, New York. The As with the public interest analysis stated that the firm had been Respondent is owned by Fouad Twaiti, for practitioners and pharmacies approached by customers requesting and his brother, Ali Twaiti serves as its pursuant to subsection (f) of section 823, listed chemical products. Even if the manager. As part of a pre-registration these factors are to be considered in the statement regarding customer inquiries investigation, DEA Division disjunctive; the Deputy Administrator was true, there is insufficient Investigators met with Fouad and Ali may rely on any one or combination of information before the Deputy Twaiti on May 12, 2000. Fouad Twaiti factors of factors, and may give each Administrator regarding the type of informed investigators that his firm had factor the weight he deems appropriate customers that requested these been in operation since early 2000, and in determining whether a registration products, their identity and location, further added that his firm had been should be revoked or an application for and whether they had a legitimate approached by some of its customers registration denied. See, e.g. Energy business interest in seeking the who ask for list I chemical products. Outlet, 64 FR 14269 (1999). See also purchase of listed chemical products. Upon request, Fouad Twaiti furnished Henry J. Schwartz, Jr., M.D. 54 FR 16422 The Deputy Administrator also finds DEA investigators with a customer list (1989). relevant under factor five, the fact that consisting of four business The Deputy Administrator finds Ali Twaiti engaged in a significant establishments. factors one, four, and five relevant to the financial transaction with a purported DEA investigators subsequently Respondent’s pending application. diverter of list I chemicals. The apparent interviewed each of the owners and/or With respect to factor one, business connection between maintenance of effective controls managers comprising the customer list Respondent’s ownership and an against diversion, the Deputy provided by Fouad Twaiti. Each of the individual purportedly convicted of Administrator finds evidence in the listed establishments denied requesting unlawful distribution of list I chemicals investigative file that the Respondent list I chemical products from Fouad is troubling when one considers that the provided customer information to DEA Twaiti, and three of the establishments Respondent seeks a DEA Certificate of investigators that later proved to be denied engaging in the sale of any Registration to distribute these same false. With the ever-present problem of pseudoephedrine products. products. listed chemical diversion, it is The Deputy Administrator concludes The investigative file further reveals incumbent upon a potential registrant to that as part of its ongoing investigation that the Respondent cannot be entrusted provide reliable and accurate with the responsibilities of a DEA of the Respondent, DEA investigators information regarding the immediate obtained bank records of an individual registration. In light of the above, the destination of these products, and Deputy Administrator further concludes hereinafter referred to as ‘‘M.A.’’ In or thereby, reduce the opportunity for around March 2000, M.A. was that it would be inconsistent with the diversion. The Deputy Administrator public interest to grant the application criminally charged in Newark, New finds the uncertainty surrounding Jersey, with unlawful distribution of a of the Respondent. Respondent’s customers is relevant Accordingly, the Deputy listed chemical, and in January 2001, under factor one and supports denial of M.A. purportedly signed a plea Administrator of the Drug Enforcement Respondent’s pending application for Administration, pursuant to the agreement on the charge. According to DEA registration. DEA’s review of bank records, Ali authority vested in him by 21 U.S.C. 823 Regarding factor four, past experience and 28 CFR 0.100(b) and 0.104, hereby Twaiti engaged in a transaction with in the manufacture and distribution of MA for $54,000 on December 20, 1999. orders that the pending application for chemicals, the Deputy Administrator DEA Certificate of Registration, When M.A. was asked by law can find no evidence in the investigative enforcement officials about the above previously submitted by Island file that Respondent, a small candy Wholesale, Incorporated be, and it transaction with Ali Twaiti, M.A. distributor, has any previous experience replied, ‘‘that was for a candy deal.’’ hereby is, denied. This order is effective related to handling or distributing listed May 9, 2003. Pursuant to 21 U.S.C. 823(h), the chemicals. This factor also weighs Deputy Administrator may deny an against the granting of Respondent’s Dated: March 26, 2003. application for DEA Certificate of pending application. See, CHM John B. Brown, III, Registration if he determines that Wholesale Co., 67 FR 9985 (2002). Deputy Administrator. granting the registration would be With respect to factor five, such other [FR Doc. 03–8591 Filed 4–8–03; 8:45 am] inconsistent with the public interest as factors relevant to and consistent with BILLING CODE 4410–09–M determined under that section. Section the public safety, the Deputy 823(h) requires the following factors be Administrator finds relevant that considered in determining the public Respondent provided false information DEPARTMENT OF JUSTICE interest: to DEA investigators when it provided (1) Maintenance of effective controls a list of its purported customers. The Drug Enforcement Administration against diversion of listed chemicals Deputy Administrator finds this lack of Manufacturer of Controlled into other than legitimate channels; candor makes questionable the Substances; Notice of Registration; (2) Compliance with applicable Respondent and its owners’ Correction—Penick Corp. Federal, State, and local law; commitment to the DEA statutory and (3) Any prior conviction record under regulatory requirements designed to On March 13, 2003, a Notice of Federal or State laws relating to protect the public from the diversion of Registration was published in the controlled substances or to chemicals listed chemicals. Seaside Federal Register (68 FR 12104) for controlled under Federal or State law; Pharmaceutical Co., 67 FR 12580 (2002); Penick Corporation, 158 Mount Olivet (4) Any past experience in the Aseel, Incorporated, Wholesale Avenue, Newark, New Jersey 07114, manufacture and distribution of Division, 66 FR 35459 (2001); Terrence which was wrongly entitled Importer of chemicals; and E. Murphy, M.D., 61 FR 2841 (1996). Controlled Substances. The Notice

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should have been entitled Manufacturer DEPARTMENT OF JUSTICE use of appropriate automated, of Controlled Substances. All other electronic, mechanical, or other information contained therein was Office of Justice Programs technological collection techniques or correctly stated. other forms of information technology, Agency Information Collection Dated: March 21, 2003. e.g., permitting electronic submission of Activities: Proposed Collection; responses. Laura M. Nagel, Comments Requested Deputy Assistant Administrator, Office of Overview of This Information Diversion Control, Drug Enforcement ACTION: 60-Day Emergency Notice of (1) Type of information collection: Administration. Information Collection Under Review: New Collection. [FR Doc. 03–8586 Filed 4–8–03; 8:45 am] New Collection; Project Safe (2) The title of the form/collection: BILLING CODE 4410–09–M Neighborhoods Semi-Annual Researcher Reporting Form. Project Safe Neighborhoods Semi- Annual Researcher Reporting Form. DEPARTMENT OF JUSTICE The Department of Justice; Office of (3) The agency form number, if any, Justice Programs, has submitted the and the applicable component of the Drug Enforcement Administration following information request to the department sponsoring the collection: Office of Management and Budget Form number: none. Office of Justice Manufacturer of Controlled (OMB) for review and clearance in Programs, Department of Justice. Substances; Notice of Application accordance with emergency review (4) Affected public who will be asked procedures of the Paperwork Reduction or required to respond, as well as a brief Pursuant to § 1301.33(a) of Title 21 of Act of 1995. OMB approval has been abstract: Primary: Individuals or the Code of Federal Regulations (CFR), requested by April 18, 2003. The Households. Other: Business or other this is notice that on March 29, 2002, proposed information collection is for-profit; not-for-profit institutions; Siegfried (USA) Inc., made application published to obtain comments from the Federal Governments; and state, local, by renewal to the Drug Enforcement public and affected agencies. If granted, or tribal government. The data, which Administration for registration as a bulk the emergency approval is only valid for will be submitted via the Semi-Annual manufacturer of the basic classes of 180 days. Comments should be directed Researcher Reporting Form in a timely controlled substance listed below: to OMB, Office of Information and fashion by the research for each of the Regulation Affairs, Attention: 94 judicial districts, is essential to Drug Schedule Department of Justice Desk Office (202) understanding gun violence at a 395–6466, Washington, DC 20503. national level. By collecting both Amphetamine (1100) ...... II During the first 60 days of this same outcome and intervention measures, the Methylphenidate (1724) ...... II review period, a regular review of this Amobarbital (2125) ...... II Department can identify programs that Pentobarbital (2270) ...... II information collection is also being demonstrate success in reducing Secobarbital (2315) ...... II undertaken. All comments and targeted gun crime. This information is Glutethimide (2550) ...... II suggestions, or questions regarding essential to evaluating the program and Codeine (9050) ...... II additional information, to include providing feedback at the national level Hydrocodone (9193) ...... II obtaining a copy of the proposed that can inform management decisions. Morphine (9300) ...... II information collection instrument with Additionally, this data will assist the Oxycodone (9143) ...... II instructions, should be directed to Department in discharging its Methadone (9250) ...... II Robyn Thiemann, Counsel, Domestic obligations under the Government Methadone-intermediate (9254) ... II Security Section, Department of Justice, Performance and Results Act (GPRA). Dextropropoxyphene, bulk (non II 601 D Street NW., Patrick Henry (5) An estimate of the number of dosage forms) (9273). Building, Suite 6500, Washington, DC respondents and the amount of time 20530, or facsimile (202) 305–4901. estimated for an average respondent to Any other such applicant and any Request written comments and respond/reply: It is estimated that 93 person who is presently registered with suggestions from the public and affected respondents will complete the form in DEA to manufacture such substance agencies concerning the proposed approximately one hour twice a year. may file comments or objections to the collection of information. Your (6) An estimate of the total public issuance of the proposed registration. comments should address one or more burden (in hours) associated with the Any such comments or objections of the following four points: collection: The estimated total public may be addressed, in quintuplicate, to (1) Evaluate whether the proposed burden associated with this application the Deputy Assistant Administrator, collection of information is necessary is 186 hours. Office of Diversion Control, Drug for the proper performance of the If additional information is required, Enforcement Administration, United functions of the agency, including please contact Brenda Dyer, Department States Department of Justice, whether the information will have Deputy Clearance Officer, Information Washington, DC 20537, Attention: DEA practical utility; Management and Security Staff, Justice Federal Register Representative (CCR), (2) Evaluate the accuracy of the Management Division, United States and must be filed no later than 60 days agency’s estimate of the burden of the Department of Justice, 601 D Street NW., from publication. proposed collection of information, Patrick Henry Building, Suite 1600, including the validity of the NW., Washington, DC 20530. Dated: March 21, 2003. methodology and assumptions used; Laura M. Nagel, (3) Enhance the quality, utility and Dated: April 3, 2003. Deputy Assistant Administrator, Office of clarity of the information to be Brenda Dyer, Diversion Control, Drug Enforcement collected; and Department Deputy Clearance Officer, United Administration. (4) Minimize the burden of the States Department of Justice. [FR Doc. 03–8582 Filed 4–8–03; 8:45 am] collection of information on those who [FR Doc. 03–8607 Filed 4–8–03; 8:45 am] BILLING CODE 4410–09–M are to respond, including through the BILLING CODE 4410–18–M

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DEPARTMENT OF JUSTICE implementation of the Violence Against Submitting Written Comments Women Act of 1994, the Violence Office of Justice Programs Against Women Act of 2000, and related Interested parties are invited to submit written comments to the [OJP(OVW)–1375] legislation. Committee, by September 30, 2003, Meeting Format Meeting of the National Advisory using one of the following methods: by Committee on Violence Against This meeting will be held according e-mail to [email protected]; by fax Women to the following schedule: on (202) 307–3911; or by U.S. mail to 1. Date: Thursday, April 24, 2003. The National Advisory Committee on AGENCY: Office on Violence Against Time: 9 a.m–12 p.m.; including Violence Against Women, 810 Seventh Women, Office of Justice Programs, Street, NW., Washington, DC 20531. Justice. breaks. 12 p.m.–5 p.m., the Committee will gather for lunch and subcommittee Due to delays in mail delivery caused by ACTION: Notice of meeting. meetings in sessions not open to the heightened security, please allow adequate time for the mail to be SUMMARY: This notice sets forth the public. schedule and proposed agenda of a 2. Date: Friday, April 25, 2003. Time: received (we recommend 3–4 weeks). forthcoming public meeting of the 9:30 a.m.–3 p.m., including breaks and Reserving Time for Public Comment National Advisory Committee on a working lunch. Violence Against Women (hereinafter The meeting schedule for April 24, If you are interested in participating ‘‘the Committee’’). 2003 will begin with presentations from during the public comment period of DATES: The meeting will take place on invited speakers and reports on the the meeting, on the implementation of April 24 from 9 a.m. to 5 p.m., and on work of the Committee’s subcommittees. the Violence Against Women Act of April 25 from 9:30 a.m. to 3 p.m. Time will be reserved for comments 1994, and the Violence Against Women ADDRESSES: The meeting will take place from the public, beginning at 10:30 a.m. Act of 2000, you are requested to reserve at the U.S. Department of Health and and ending at 11 a.m. See the section time on the agenda by contacting the Human Services, Hubert Humphrey below on Reserving Time for Public Office on Violence Against Women, Building 200 Independence Avenue, Comment, for information on how to Office of Justice Programs, U.S. NW., Washington, DC. reserve time on the agenda. Department of Justice, by e-mail or fax. FOR FURTHER INFORMATION CONTACT: The meeting scheduled for April 25, Please include your name, the Omar A. Vargas, Special Assistant, The 2003, will consist of briefings on organization you represent, if National Advisory Committee on Violence Against Women initiatives at appropriate, and a brief description of Violence Against Women, 810 Seventh the Department of Justice and the the issue you would like to present. Street, NW., Washington, DC 20531. Department of Health and Human Participants will be allowed Telephone: (202) 307–6026. E-mail: Services, and subcommittees will report approximately 3 to 5 minutes to present [email protected]. Fax: (202) 307– back on the previous day’s work. their comments, depending on the 3911. You may view the Committee’s Attending the Meeting number of individuals who reserve time Web site at: http://www.ojp.usdoj.gov/ on the agenda. Participants are also vawo/nac/welcome.html. The meeting on April 24, from 9 a.m. encouraged to submit two written SUPPLEMENTARY INFORMATION: The to 12 p.m., will be open to the public. copies of their comments at the meeting. (The Committee will convene for lunch Committee is chartered by the Attorney Given the expected number of General, and co-chaired by the Attorney and in closed subcommittee sessions from 12 p.m. to 5 p.m. pursuant to 41 individuals interested in providing General and the Secretary of Health and comments at the meetings, reservations Human Services (the Secretary), to CFR 102–3.160 of the Federal Advisory for presenting comments should be provide the Attorney General and the Committee Act.) Registrations for the made as soon as possible. Secretary with practical and general public sessions will be accepted on a policy advice concerning space-available basis. Members of the Persons who are unable to obtain implementation of the Violence Against public who wish to attend must register reservations to speak during the Women Act of 1994, the Violence at least six (6) days in advance of the meetings are encouraged to submit Against Women Act of 2000, and related meeting by contacting Omar A. Vargas, written comments, which will be laws, and will assist in the efforts of the Special Assistant, at the e-mail address accepted at the meeting site or may be Department of Justice and the or fax number listed above. Access to mailed to the Committee at the address Department of Health and Human the meeting will not be allowed without listed under the section on Submitting Services to combat violence against registration, and all attendees will be Written Comments. required to sign in at the meeting women, especially domestic violence, Notice of this meeting is required sexual assault, and stalking. registration desk. Please bring photo under section 10(a)(2) of the Federal In addition, because violence is identification and allow extra time prior Advisory Committee Act. increasingly recognized as a public to the meeting. health problem of staggering human Individuals who will need special Dated: April 4, 2003. cost, the Committee will bring national accommodations for a disability in order Diane M. Stuart, attention to the problem of violence to attend the meetings should notify Acting Director, Office on Violence Against against women and increase public Omar A. Vargas, Special Assistant, at Women. awareness of the need for prevention the above e-mail address or by fax, no [FR Doc. 03–8629 Filed 4–8–03; 8:45 am] and enhanced victim services. later than April 18, 2003. We will This meeting will primarily focus on attempt to meet requests after this date, BILLING CODE 4410–18–P the Committee’s work; there will, but cannot guarantee availability of the however, be an opportunity for public requested accommodation. The meeting comment on the Committee’s role in site is accessible to individuals with providing general policy guidance on disabilities.

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DEPARTMENT OF LABOR I. Background • Enhance the quality, utility, and clarity of the information to be Employment and Training The Employment and Training collected; and Administration Administration of the Department of • Minimize the burden of the Labor is requesting continuation of the collection of information on those who Proposed Collection; Comment current reporting and performance are to respond, including the use of Request standards system for Workforce appropriate automated, electronic, Investment Act (WIA), title I, section mechanical, or other technological AGENCY: Employment and Training 166, Indian and Native American collection techniques or other forms of Administration, Labor. grantees for one year (April 1, 2003 to information technology, e.g., permitting March 31, 2004), in part to coincide ACTION: Notice. electronic submissions of responses. with the expiration of the section 166 financial report (ETA–9080) which is III. Current Action SUMMARY: The Department of Labor, as currently approved through March 31, This ICR will be used by part of its continuing effort to reduce 2004 under OMB Control Number 1205– approximately 145 Workforce paperwork and respondent burden, 0423. In evaluating the last few years’ Investment Act (WIA) section 166 conducts a preclearance consultation reporting experience of the grantees grantees as the primary reporting and process to provide the general public who receive funding under WIA section performance measurement vehicle for and Federal agencies with an 166, including those receiving enrolled individuals, their opportunity to comment on proposed Supplemental Youth Services (SYS) characteristics, training and services and/or continuing collections of funds, and, in light of the continuing provided, outcomes, including job information in accordance with the statutory requirements of WIA placement and employability Paperwork Reduction Act of 1995 applicable to section 166 grantees, the enhancements, as well as detailed (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This Department has decided to extend the financial data on program expenditures. process helps to ensure that requested currently-approved reporting Grantees participating in the data can be provided in the desired requirements which it believes supports demonstration under Public Law 102– format, reporting burdens are the current statutory requirements 477 will not be affected by this minimized, collection instruments are under WIA as they relate to the Indian collection, and have not been included clearly understood, and the impact of and Native American Program. The only in the following burden estimates. collection requirements on respondents anticipated change(s) would be to Type of Review: Extension. can be properly assessed. Currently, the accommodate the information collection Agency: Employment and Training Employment and Training requirements of the Administration’s Administration. Administration (ETA) is soliciting proposed ‘‘Common Measures’’ for Title: Reporting and performance comments concerning the proposed evaluating all Federally-funded system for WIA, title I, section 166, continuation of a reporting and employment and training programs. Indian and Native American grantees. performance standards system for Further details of these possible changes OMB Number (current): 1205–0422. Indian and Native American programs are available on request. However, it Catalog of Federal Domestic under title I, section 166 of the should be noted that the Workforce Assistance Number: 17.265 (for PY 2002 Workforce Investment Act (WIA). A Investment Act comes up for and beyond). copy of the proposed Information reauthorization during 2003, which Recordkeeping: Grantees shall retain Collection Request (ICR) can be could result in additional, statutorily- supporting and other documents obtained by contacting the office listed mandated reporting changes which necessary for the compilation and below in the address section of this would need to be covered in this data submission of the subject reports for notice. collection. three years after submission of the final financial report for the grant in question DATES: Written comments must be II. Review Focus [29 CFR 97.42 and/or 29 CFR 95.53]. It submitted to the office listed in the The Department of Labor is should be noted that the burden addressee section below on or before estimates for this collection as originally June 9, 2003. particularly interested in comments which: approved by OMB in April of 2001 were for 27,795 responses totaling some ADDRESSES: James C. DeLuca, Chief, • Division of Indian and Native American Evaluate whether the proposed 78,615 hours. Programs, Employment and Training collection of information is necessary Affected Public: Federally-recognized Administration, U.S. Department of for the proper performance of the Indian tribes, bands, and groups; Labor, Room N–4641, 200 Constitution functions of the agency, including Alaskan Native entities; Hawaiian Avenue, NW., Washington, DC 20210. whether the information will have Native entities; private non-profit Telephone: (202) 693–3754 (VOICE) or practical utility; Indian-controlled organizations; State (202) 693–3818 (FAX) (these are not • Evaluate the accuracy of the Indian Commissions or Councils (Native toll-free numbers) or INTERNET: agency’s burden estimate for the American-controlled); consortia of any DeLuca,[email protected]. proposed collection of information, and/or all of the above. including the validity of the Cite/Reference/Form/etc.: ETA–9084 SUPPLEMENTARY INFORMATION: methodology and assumptions used; and ETA–9085.

Total Average time Total burden Form No. Respondents Frequency responses per response hours

ETA–9084 (Comprehensive services) ...... 145 semi-annual 290 9.67 2,804 ETA–9085 (Supplemental Youth Services) ...... 105 semi-annual 210 9.67 2,031 Recordkeeping ...... 145 (as needed).. 27,295 9.67 73,780

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Total Average time Total burden Form No. Respondents Frequency responses per response hours

Total ...... 250 semi-annual 27,795 9.67 78,615

Total Burden Cost (capital/startup): of Labor Statistics (BLS) is soliciting functions of the agency, including $0. comments concerning the proposed whether the information will have Total Burden Cost (operating/ reinstatement of the ‘‘Current practical utility; maintaining): Costs associated with this Population Survey (CPS) Volunteer • Evaluate the accuracy of the collection will vary widely among Supplement.’’ A copy of the proposed agency’s estimate of the burden of the grantees, from nearly no additional cost information collection request (ICR) can proposed collection of information, to some higher figure, depending on the be obtained by contacting the individual including the validity of the state of automation attained by each listed below in the ADDRESSES section of methodology and assumptions used; grantee and the wages paid to the staff this notice. • Enhance the quality, utility, and actually completing the various forms. DATES: Written comments must be However, because all expenditures clarity of the information to be submitted to the office listed in the collected; and associated with the preparation of these ADDRESSES section of this notice on or • reports will come from the Federal grant before June 9, 2003. Minimize the burden of the collection of information on those who funds themselves, there will be no costs ADDRESSES: Send comments to Amy A. to the grantees. The grantees will not be Hobby, BLS Clearance Officer, Division are to respond, including through the obligated to expend their own (i.e., non- of Management Systems, Bureau of use of appropriate automated, DOL) resources to fulfill these reporting Labor Statistics, Room 4080, 2 electronic, mechanical, or other requirements. All costs associated with Massachusetts Avenue, NE., technological collection techniques or the submission of these forms are Washington, DC 20212, telephone other forms of information technology, allowable grant expenses. Comments number 202–691–7628 (this is not a toll e.g., permitting electronic submissions submitted in response to this comment free number). of responses. request will be summarized and/or FOR FURTHER INFORMATION CONTACT: III. Current Action included in the request for Office of Amy A. Hobby, BLS Clearance Officer, Management and Budget approval of the telephone number 202–691–7628. (See Office of Management and Budget information collection request; they also ADDRESSES section). clearance is being sought for the CPS will become a matter of public record. Volunteer Supplement. SUPPLEMENTARY INFORMATION: Signed at Washington, DC, this 2nd day of Type of Review: Reinstatement, with April, 2003. I. Background change, of a previously approved Emily Stover DeRocco, The September 2003 CPS Volunteer collection for which approval has Assistant Secretary, Employment and Supplement will be conducted at the expired. Training Administration. request of the USA Freedom Corps. The Agency: Bureau of Labor Statistics. [FR Doc. 03–8637 Filed 4–8–03; 8:45 am] Volunteer Supplement will provide Title: CPS Volunteer Supplement. BILLING CODE 4510–30–P information on the total number of individuals in the U.S. involved in OMB Number: 1220–0176. unpaid volunteer activities, factors that Affected Public: Households. DEPARTMENT OF LABOR motivate volunteerism, measures of the Total Respondents: 58,000. frequency or intensity with which Bureau of Labor Statistics individuals volunteer, types of Frequency: Annually. Total Responses: 112,000 Proposed Collection; Comment organizations that facilitate Request volunteerism, and activities in which Average Time Per Response: 4 volunteers participate. minutes. Because the Volunteer Supplement is ACTION: Notice. Estimated Total Burden Hours: 7,467 part of the CPS, the same detailed hours. SUMMARY: The Department of Labor, as demographic information collected in part of its continuing effort to reduce the CPS will be available on Total Burden Cost (capital/startup): paperwork and respondent burden, respondents to the Supplement. $0. conducts a pre-clearance consultation Comparisons of volunteer activities will Total Burden Cost (operating/ program to provide the general public be possible across characteristics such maintenance): $0. and Federal agencies with an as sex, race, age, and educational Comments submitted in response to opportunity to comment on proposed attainment of the respondent. It is this notice will be summarized and/or and/or continuing collections of intended that the Supplement will be included in the request for Office of information in accordance with the conducted annually, if resources permit, Management and Budget approval of the Paperwork Reduction Act of 1995 in order to gauge changes in information collection request; they also (PRA95) [44 U.S.C. 3506(c) (2)(A)]. This volunteerism. will become a matter of public record. program helps to ensure that requested data can be provided in the desired II. Desired Focus of Comments Signed at Washington, DC, this 1st day of format, reporting burden (time and The Bureau of Labor Statistics is April, 2003. financial resources) is minimized, particularly interested in comments Jesu´ s Salinas, collection instruments are clearly that: Acting Chief, Division of Management understood, and the impact of collection • Evaluate whether the proposed Systems, Bureau of Labor Statistics. requirements on respondents can be collection of information is necessary [FR Doc. 03–8638 Filed 4–8–03; 8:45 am] properly assessed. Currently, the Bureau for the proper performance of the BILLING CODE 4510–24–P

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NATIONAL AERONAUTICS AND NATIONAL AERONAUTICS AND No. 3 (IP3). The license provides, among SPACE ADMINISTRATION SPACE ADMINISTRATION other things, that the facility is subject to all rules, regulations, and orders of [Notice (03–037)] [Notice (03–838)] the U.S. Nuclear Regulatory Notice of Prospective Patent License Commission (NRC, the Commission) Notice of Prospective Patent License now or hereafter in effect. AGENCY: National Aeronautics and The facility consists of a pressurized- AGENCY: National Aeronautics and Space Administration. water reactor located in Westchester Space Administration. ACTION: Notice of Prospective Patent County in the State of New York. License. ACTION: Notice of prospective patent 2.0 Request/Action license. SUMMARY: NASA hereby gives notice Title 10 of the Code of Federal that the Bombardier Motor Corporation Regulations (10 CFR), part 50.44, SUMMARY: NASA hereby gives notice of America, of Delaware, has applied for ‘‘Standards for combustible gas control that Automated Control Technologies, an exclusive license to practice the system in light-water-cooled power Inc. of 2009 Pleasant Valley Road, inventions disclosed in NASA Case Nos. reactors,’’ requires that each pressurized Fairmont, WV 26554, has applied for a MFS–31294–2–CIP2 entitled light-water nuclear power reactor fueled Partially Exclusive license to practice ‘‘Aluminum Alloy And Article Cast with oxide pellets within cylindrical the inventions described in NASA Case Therefrom,’’ MFS–31294–7–CIP entitled zircaloy or ZIRLO cladding must be Number LAR–13845 1–CU entitled ‘‘Process For Producing A Cast Article provided with the capability for controlling the combustible gas ‘‘Reactivation Of A Tin Oxide- From A Hypereutectic Aluminum- concentrations in the containment Containing Catalyst,’’ NASA Case Silicon Alloy’’ and MFS–31828–1 entitled ‘‘High Strength Aluminum following a postulated loss-of-coolant Number LAR–13741–1–SB entitled Alloy For High Temperature accident (LOCA). A combustible gas ‘‘Process for Making a Noble Metal on Applications,’’ for which U.S. Patent control system is defined by 10 CFR Tin Oxide Catalyst,’’ NASA Case Applications were filed and assigned to 50.44(h) as a system that operates after Number LAR–14155–1–SB entitled the United States of America as a LOCA to maintain the concentrations ‘‘Catalyst For Carbon Monoxide represented by the Administrator of the of combustible gases within the Oxidation,’’ NASA Case Number National Aeronautics and Space containment, such as hydrogen, below LAR14155–2–SB entitled ‘‘Catalyst For Administration. Written objections to flammability limits. Combustible gas Carbon Monoxide Oxidation,’’ NASA the prospective grant of a license should control systems are of two types: Case Number LAR–15351–1–CU be sent to James L. McGroary, Chief (1) Systems that allow controlled entitled ‘‘Catalytic Process For Patent Counsel/LS01, Marshall Space release from containment such as a Formaldehyde Oxidation,’’ NASA Case Flight Center, Huntsville, AL 35812. purge or vent system, and Number LAR–15652–1–CU entitled NASA has not yet made a determination (2) Systems that do not result in a ‘‘Catalyst For Oxidation Of Volatile to grant the requested license and may significant release from containment Organic Compounds’’ for which U.S. deny the requested license even if no such as hydrogen recombiners. The Patents were issued and assigned to the objections are submitted within the combustible gas control system at IP3 United States of America as represented comment period. consists of a hydrogen recombiner system and a backup purge system. by the Administrator of the National DATES: Responses to this notice must be When IP3 was initially licensed, the Aeronautics and Space Administration received by April 24, 2003. post accident containment ventilation and NASA Case Number LAR15851–1– FOR FURTHER INFORMATION CONTACT: (PACV) system was installed to meet the CU entitled ‘‘Process For Coating Sammy A. Nabors, Technology Transfer requirements of 10 CFR 50.44(f). Section Substrates With Catalyst Materials’’ for Department/CD30, Marshall Space 50.44(f) requires: which a U.S. Patent Application was Flight Center, Huntsville, AL 35812, filed and assigned to the United States (256) 544–5236. For facilities with respect to which the notice of hearing on the application for a of America as represented by the Dated: January 3, 2003. construction permit was published between Administrator of the National Robert M. Stephens, December 22, 1968, and November 5, 1970, Aeronautics and Space Administration. Deputy General Counsel. if the incremental radiation dose from Written objections to the prospective purging (and repressurization if a [FR Doc. 03–8639 Filed 4–8–03; 8:45 am] grant of a license should be sent to repressurization system is provided) BILLING CODE 7510–01–P Langley Research Center. occurring at all points beyond the exclusion area boundary after a postulated LOCA DATES: Responses to this notice must be calculated in accordance with § 100.11(a)(2) received by April 24, 2003. NUCLEAR REGULATORY of this chapter is less than 2.5 rem to the COMMISSION whole body and less than 30 rem to the FOR FURTHER INFORMATION CONTACT: thyroid, and if the combined radiation dose Helen M. Galus, Patent Attorney, [Docket No. 50–286] at the low population zone outer boundary Langley Research Center, Mail Stop 212, from purging and the postulated LOCA Hampton, VA 23681–2199. Telephone Entergy Nuclear Operations, Inc., calculated in accordance with § 100.11(a)(2) Indian Point Nuclear Generating Unit of this chapter is less than 25 rem to the 757–864–3227; Fax 757–864–9190. No. 3; Exemption whole body and less than 300 rem to the Dated: April 3, 2003. thyroid, only a purging system is necessary, Robert M. Stephens, 1.0 Background provided that the purging system and any filtration system associated with it are Deputy General Counsel. Entergy Nuclear Operations, Inc., designed to conform with the general [FR Doc. 03–8636 Filed 4–8–03; 8:45 am] (ENO or the licensee) is the holder of requirements of Criteria 41, 42, and 43 of Facility Operating License No. DPR–64 BILLING CODE 7510–01–P appendix A to this part. Otherwise the which authorizes operation of the facility shall be provided with another type Indian Point Nuclear Generating Unit of combustible gas control system (a

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repressurization system is acceptable) strategy. Specifically, Attachment 1 to PACV system is not necessary to meet designed to conform with the general SECY–02–0080 states: the intent of the rule. requirements of Criteria 41, 42, and 43 of appendix A to this part. If a purge system is The Commission continues to view severe In their January 16, 2003, letter, the used as part of the repressurization system, accident management guidelines as an licensee stated that even with the the purge system shall be designed to important part of the severe accident closure retirement of the PACV system, they process. Severe accident management conform with the general requirements of will be able to meet all their severe Criteria 41, 42, and 43 of appendix A to this guidelines are part of a voluntary industry initiative to address accidents beyond the accident management commitments. part. The containment shall not be design basis and emergency operating Their current Severe Accident repressurized beyond 50 percent of the instructions. In November 1994, the U.S. containment design pressure. Management Guidelines (SAMGs) nuclear industry committed to implement identify, in addition to the PACV When the Commission issued what is severe accident management at their plants system, three alternate methods of by December 31, 1998, using the guidance now paragraph c(3)(ii) of 10 CFR 50.44 containment depressurization and in 1981, a safety related hydrogen contained in NEI 91–04, Revision 1, ‘‘Severe Accident Issue Closure Guidelines.’’ Generic combustible gas control. These methods recombiner system was installed. severe accident management guidelines are backflow to the steam ejector line, Paragraph c(3)(ii) requires: developed by each nuclear steam system containment pressure relief line, and the By the end of the first scheduled outage supplier owners group includes either containment purge system. The licensee beginning after July 5, 1982 and of sufficient purging and venting or venting the stated that the decommissioning of the duration to permit required modifications, containment to address combustible gas PACV system will include a revision to each light-water nuclear power reactor that control. On the basis of the industry-wide commitment, the Commission is not the SAMGs that will include the three relies upon a purge/repressurization system alternative methods listed above. The as the primary means for controlling proposing to require such capabilities, but combustible gases following a LOCA shall be continues to view purging and/or controlled staff concludes that the licensee provided with either an internal recombiner venting of all containment types to be an continues to address the Commission’s or the capability to install an external important combustible gas control strategy concerns regarding the use of purging recombiner following the start of an accident. that should be considered in a plant’s severe and/or controlled venting of The internal or external recombiners must accident management guidelines. containment as an important meet the combustible gas control 3.0 Discussion combustible gas control strategy that requirements in paragraph (d) of this section. should be considered in the licensee’s [***] Pursuant to 10 CFR 50.12, the Commission may, upon application by severe accident management guidelines. As a result, the recombiner system any interested person or upon its own Based on the above, the staff became the primary method of initiative, grant exemptions from the determined that the requested combustible gas control while the PACV requirements of 10 CFR part 50 when (1) exemption from the requirements of 10 system became a backup method. the exemptions are authorized by law, CFR 50.44(f) meets the requirements of The purpose of this exemption will not present an undue risk to public 10 CFR 50.12. The staff finds the request for 10 CFR 50.44(f) is to remove health or safety, and are consistent with requested exemption acceptable. requirements for the PACV system from the common defense and security; and Therefore, the staff concludes that the IP3 licensing basis. The licensee is (2) when special circumstances are pursuant to 10 CFR 50.12(a)(2) the not requesting an exemption from GDC present. These circumstances include licensee’s requested exemption from the 41, ‘‘Containment Atmosphere the special circumstances that the PACV requirements of 10 CFR 50.44(f) for IP3 Cleanup,’’ or 10 CFR 50.44(c). The system is not needed to meet the as specified in a letter dated October 3, licensee is requesting this exemption in underlying purpose of 10 CFR 50.44. As 2002, and as supplemented by letters accordance with 10 CFR 50.12. Pursuant mentioned above, the underlying dated January 16 and March 11, 2003, to 10 CFR 50.12, the Commission may, purpose of 10 CFR 50.44 is to show that is acceptable. upon application by any interested following a LOCA, an uncontrolled person or upon its own initiative, grant hydrogen-oxygen recombination would 4.0 Conclusion exemptions from the requirements of 10 not take place, or that the plant could CFR part 50 when (1) the exemptions withstand the consequences of Accordingly, the Commission has are authorized by law, will not present uncontrolled hydrogen-oxygen determined that, pursuant to 10 CFR an undue risk to public health or safety, recombination without loss of safety 50.12(a), the exemption is authorized by and are consistent with the common function. law, will not present an undue risk to defense and security; and (2) when The staff examined the licensee’s the public health and safety, and is special circumstances are present. These rationale to support the exemption consistent with the common defense circumstances include the special request of eliminating the licensing and security. Also, special circumstances stated in 10 CFR basis requirements for the PACV system circumstances are present. Therefore, 50.12(a)(2)(ii), ‘‘Application of the and concluded that retaining the the Commission hereby grants ENO an regulation in the particular licensing basis requirements for the exemption from the requirement to circumstances would not serve the PACV system is not necessary to maintain a purge/repressurization underlying purpose of the rule or is not achieve the underlying purpose of 10 system of 10 CFR 50.44(f) for IP3. necessary to achieve the underlying CFR part 50.44. As mentioned above, Pursuant to 10 CFR 51.32, the purpose of the rule.’’ The PACV system the PACV system is the backup Commission has determined that the also has a role in severe accident combustible gas control system. The granting of this exemption will not have management. The Commission stated in primary system is the electric hydrogen a significant effect on the quality of the Attachment 1 to SECY–02–0080, recombiner system which meets the human environment (68 FR 15487). ‘‘Proposed Rulemaking—Risk-Informed requirements of 10 CFR 50.44 c(3)(ii). 10 CFR 50.44, Combustible Gas Control Each of the recombiner subsystems is This exemption is effective upon In Containment,’’ their position capable of maintaining the hydrogen issuance. concerning the ability to vent the concentration below the required limit Dated at Rockville, Maryland, this 2nd day containment as a severe accident following a design-basis LOCA. The of April, 2003.

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For the Nuclear Regulatory Commission Pursuant to § 2.1205(a), any person (4) The circumstances establishing John A. Zwolinski, whose interest may be affected by this that the request for a hearing is timely Director, Division of Licensing Project proceeding may file a request for a in accordance with § 2.1205(d). Management, Office of Nuclear Reactor hearing in accordance with § 2.1205(d). III. Further Information Regulation. A request for a hearing must be filed [FR Doc. 03–8628 Filed 4–8–03; 8:45 am] within 30 days of the publication of this For further details, the unclassified BILLING CODE 7590–01–P Federal Register notice. and non-proprietary portions of USEC’s The request for a hearing must be License application may be examined filed with the Office of the Secretary, and/or copied for a fee at the NRC’s NUCLEAR REGULATORY either: Public Document Room, located at One COMMISSION (1) By delivery to the Rulemaking and White Flint North, 11555 Rockville Adjudications Staff of the Office of the Pike, Rockville, MD 20852. The [Docket No. 70–7003] Secretary of the Commission at One references with ADAMS Accession Number ML030730232 may also be Notice of Opportunity To Request a White Flint North, 11555 Rockville viewed in the NRC’s Electronic Public Hearing Regarding the U.S. Pike, Rockville, MD 20852 between 7:45 Document Reading Room at http:// Enrichment Corporation Inc.’s a.m. and 4:15 p.m. on Federal workdays; www.nrc.gov/reading-rm/adams.html. Application for a License for the or (2) By mail or telegram addressed to Any questions with respect to this Possession and Use of Special Nuclear the Secretary, U.S. Nuclear Regulatory action should be referred to Mr. Yawar Material and Byproduct Material in Its Commission, Washington, DC 20555, Faraz, Project Manager, Special Projects American Centrifuge Lead Cascade Attention: Rulemaking and and Inspection Branch, Division of Fuel Facility in Piketon, OH Adjudications Staff. Because of Cycle Safety and Safeguards, U.S. I. Introduction continuing disruptions in the delivery Nuclear Regulatory Commission, Mail of mail to United States Government Stop T–8 A33, Washington, DC 20555– The U.S. Nuclear Regulatory offices, it is requested that requests for 0001. Telephone (301)415–8113 or e- Commission is considering an hearing also be transmitted to the mail [email protected]. application submitted by the U.S. Secretary of the Commission either by Enrichment Corporation Inc. (USEC), Dated at Rockville, Maryland, this 3rd day means of facsimile transmission to 301– dated February 11, 2003, for a license to of April 2003. 415–1101, or by e-mail to possess and use, for five years, special For the Nuclear Regulatory Commission. [email protected]. nuclear, source, and by-product material In accordance with 10 CFR 2.1205(f), Eric J. Leeds, in the American Centrifuge Lead each request for a hearing must also be Deputy Director, Division of Fuel Cycle Safety Cascade Facility (Lead Cascade). The served, by delivering it personally or by and Safeguards, Office of Nuclear Material Lead Cascade, which is to be located at mail, to: Safety and Safeguards. the Portsmouth Gaseous Diffusion Plant (1) The applicant, (U.S. Enrichment [FR Doc. 03–8627 Filed 4–8–03; 8:45 am] in Piketon, Ohio, will possess up to 250 Corporation Inc., 6903 Rockledge Drive, BILLING CODE 7590–01–P kilograms of uranium hexafluoride and Bethesda, MD 20817–1818); Attention will consist of up to 240 operating, full- Mr. Steven A. Toelle; and scale centrifuge machines. (2) The NRC staff, by delivery to the NUCLEAR REGULATORY By letter dated March 13, 2003, the General Counsel, One White Flint COMMISSION NRC informed USEC that based on an North, 11555 Rockville Pike, Rockville, Advisory Committee on Nuclear administrative review of the Lead MD 20852 between 7:45 a.m. and 4:15 Waste; Notice of Meeting Cascade license application, the NRC p.m. on Federal workdays, or by mail had found the application acceptable for addressed to the Office of the General The Advisory Committee on Nuclear technical review. However, before Counsel, U.S. Nuclear Regulatory Waste (ACNW) will hold its 141st approving the proposed license, NRC Commission, Washington, DC 20555. meeting on April 22–23, 2003, 11545 will need to make the findings required Because of continuing disruptions in the Rockville Pike, Rockville, Maryland. by the Atomic Energy Act of 1954, as delivery of mail to United States The entire meeting will be open to amended, and NRC regulations. The Government offices, it is requested that public attendance. NRC will document its technical requests for hearing be also transmitted The schedule for this meeting is as reviews related to radiological safety to the Office of the General Counsel, follows: and common defense and security in a either by means of facsimile Tuesday, April 22, 2003 Safety Evaluation Report and its transmission to 301–415–3725, or by e- environmental safety review in an mail to [email protected]. 10 a.m.–10:40 a.m.: Opening Environmental Assessment (EA). In the In addition to meeting other Statement (Open)—The Chairman will March 13, 2003, letter, the NRC also applicable requirements of 10 CFR part open the meeting with brief opening stated that it anticipates completing its 2 of the NRC’s regulations, a request for remarks, outline the topics to be technical reviews and issuing its a hearing filed by a person other than discussed, and indicate several items of decision by February 2004. an applicant must describe in detail: interest. 10:40 a.m.–12 Noon: One Step at a II. Opportunity To Request a Hearing (1) The interest of the requestor; (2) How that interest may be affected Time: The Staged Development of The NRC hereby provides notice that by the results of the proceeding, Geologic Repositories for High-Level this is a proceeding on an application including the reasons why the requestor Radioactive Waste (Open)—The for a license falling within the scope of should be permitted a hearing, with Committee will hear presentations by subpart L, ‘‘Informal Hearing Procedures particular reference to the factors set out and hold discussions with for Adjudications in Materials and in § 2.1205(h); representatives of the National Academy Operator Licensing Proceedings’’ of (3) The requestor’s areas of concern of Sciences on their recent report on NRC’s rules and practice for domestic about the licensing activity that is the staged development of a proposed HLW licensing proceedings in 10 CFR part 2. subject matter of the proceeding; and repository at Yucca Mountain, NV.

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1 p.m.–5:15 p.m.: Transportation by members of the public. Electronic Dated: April 3, 2003. Working Group Follow-On Session: recordings will be permitted only Andrew L. Bates, State of Nevada Technical Concerns during those portions of the meeting Advisory Committee Management Officer. with the Transporation of Spent Fuel that are open to the public. Persons [FR Doc. 03–8626 Filed 4–8–03; 8:45 am] and High-Level Waste (Open)—The desiring to make oral statements should BILLING CODE 7590–01–P Committee will hear presentations by notify Mr. Howard J. Larson, ACNW and hold discussions with (Telephone 301/415–6805), between representatives from the State of Nevada 7:30 a.m. and 4 p.m. ET, as far in RAILROAD RETIREMENT BOARD regarding the review of Yucca Mountain advance as practicable so that Systems Issues related to Transportation appropriate arrangements can be made Proposed Data Collection Available for Safety and Fuel Scale Testing issues to schedule the necessary time during Public Comment and including an Assessment of NUREG– the meeting for such statements. Use of Recommendations 1768. still, motion picture, and television 5:15 p.m.–5:30 p.m.: Committee SUMMARY: In accordance with the Discussion (Open)—The Committee will cameras during this meeting will be requirement of section 3506(c)(2)(A) of further discuss today’s topics. limited to selected portions of the the Paperwork Reduction Act of 1995 5:45 p.m.–7 p.m.: Preparation of meeting as determined by the ACNW which provides opportunity for public ACNW Reports (Open)—The Committee Chairman. Information regarding the comment on new or revised data will discuss the report of March 2003 time to be set aside for taking pictures collections, the Railroad Retirement Working Group Meeting on NRC and may be obtained by contacting the Board will publish periodic summaries DOE Performance Assessments: ACNW office, prior to the meeting. In of proposed data collections. Assumptions and Differences, and the view of the possibility that the schedule Comments are invited on: (a) Whether State of Nevada Technical Concerns for ACNW meetings may be adjusted by the proposed information collection is with the Transporation of Spent Fuel the Chairman as necessary to facilitate necessary for the proper performance of and HLW. the conduct of the meeting, persons the functions of the agency, including planning to attend should notify Mr. whether the information has practical Wednesday, April 23, 2003 utility; (b) the accuracy of the RRB’s Howard J. Larson as to their particular estimate of the burden of the collection 8:30 a.m.–8:35 a.m.: Opening needs. Statement (Open)—The Chairman will of the information; (c) ways to enhance make opening remarks regarding the Further information regarding topics the quality, utility, clarity of the conduct of today’s sessions. to be discussed, whether the meeting information to be collected; and (d) 8:35 a.m.–9:30 a.m.: Update on NRC has been canceled or rescheduled, the ways to minimize the burden related to Division of Waste Management Chairman’s ruling on requests for the the collection of information on Activities (Open)—The Committee will opportunity to present oral statements respondents, including the use of hear presentations by and hold and the time allotted therefore can be automated collection techniques or discussions with the Director, Division obtained by contacting Mr. Howard J. other forms of information technology. of Waste Management on recent DWM Larson. Title and Purpose of Information activities of interest. ACNW meeting agenda, meeting Collection 9:30 a.m.–12 Noon: DOE/NRC Key transcripts, and letter reports are Technical Issue (KTI) Agreement Status Repayment of Debt: OMB 3220–0169. available through the NRC Public (Open)—The Committee will hear When the Railroad Retirement Board Document Room at [email protected], or by presentations by and hold discussions (RRB) determines that an overpayment with representatives of DOE and the calling the PDR at 1–800–397–4209, or of Railroad Retirement Act (RRA) or NRC staff on the closure status of KTIs. from the Publicly Available Records Railroad Unemployment Insurance Act 1 p.m.–2 p.m.: Discussion of Self- System (PARS) component of NRC’s (RUIA) benefits has occurred, it initiates Assessment Survey Results (Open)—The document system (ADAMS) which is prompt action to notify the annuitant of Committee will discussion the results of accessible from the NRC Web site at the overpayment and to recover the the self-assessment survey. http://www.nrc.gov/reading-rm/ money owed the RRB. To effect 2 p.m.–3 p.m.: ACNW Action Plan adams.html or http://www.nrc.gov/ payment of a debt by credit card, the (Open)—The Committee members will reading-rm/doc-collections/(ACRS & RRB currently utilizes Form G–421f, discuss an update to the ACNW 2002– ACNW Mtg schedules/agendas). Repayment by Credit Card. The RRB is proposing the creation of 2003 Action Plan. Videoteleconferencing service is 3:15 p.m.–6:30 p.m.: Preparation of four additional forms to assist the RRB available for observing open sessions of in the debt collection process. Proposed ACNW Reports (Open)—The Committee ACNW meetings. Those wishing to use will discuss proposed ACNW reports on Form G–421g, Response to Notice of this service for observing ACNW matters considered during this meeting. Debt, will be released along with RRB 6:30 p.m.–6:45 p.m.: Miscellaneous meetings should contact Mr. Theron notices of overpayment under the RUIA. (Open)—The Committee will discuss Brown, ACNW Audiovisual Technician Proposed Form G–421h, Response to matters related to the conduct of (301/415–8066), between 7:30 a.m. and Notice of Debt, will be released along Committee activities and matters and 3:45 p.m. ET, at least 10 days before the with RRB notices of overpayment specific issues that were not completed meeting to ensure the availability of this caused by a failure to return RRA during previous meetings, as time and service. Individuals or organizations payments released after an annuitant’s availability of information permit. requesting this service will be death. Proposed Form G–421i, Response Procedures for the conduct of and responsible for telephone line charges to Notice of Debt, will be released with participation in ACNW meetings were and for providing the equipment and RRB notices of overpayment of RRA published in the Federal Register on facilities that they use to establish the annuities when the overpayment was October 11, 2002 (67 FR 63459). In videoteleconferencing link. The not caused by the withdrawal of funds accordance with these procedures, oral availability of videoteleconferencing deposited to an annuitant’s financial or written statements may be presented services is not guaranteed. institution account after his death and

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the debtor does not have current payment by check or money order, (2) overpayment determinations and the entitlement to an RRA annuity. the use of a credit card, or (3) monthly recovery of such benefits are prescribed Proposed Form, G–421j, Response to installment payments. The G–421g will in 20 CFR 255 and 340. Notice of Debt, will be released with also offer the option of having a current The estimate of annual respondent notices of delinquent debt under both benefit offset as a method of repayment. burden is as follows: the RRA and the RUIA. One form is completed by each All of the proposed forms will offer respondent. Completion is voluntary. the repayment options of (1) direct RRB procedures pertaining to benefit

ESTIMATE OF ANNUAL RESPONDENT BURDEN

Estimated comple- Forms Nos. Annual responses tion time (min) Burden hours

G–421f ...... 180 5 15 G–421g ...... 14,000 10 2,333 G–421h ...... 500 10 83 G–421i ...... 1,700 10 283 G–421j ...... 11,000 10 1,833

Total ...... 27,380 ...... 4,547

I. Additional Information or Rule 489 Under the Securities Act of information; (c) ways to enhance the Comments: To request more information 1933, Filing of Form by Foreign Banks quality, utility, and clarity of the or to obtain a copy of the information and Certain of Their Holding information collected; and (d) ways to collection justification, forms, and/or Companies and Finance Subsidiaries; minimize the burden of the collection of supporting material, please call the RRB and Form F–N, Appointment of Agent information on respondents, including Clearance Officer at (312) 751–3363. for Service of Process by Foreign Banks through the use of automated collection Comments regarding the information and Foreign Insurance Companies and techniques or other forms of information collection should be addressed to Certain of Their Holding Companies technology. Consideration will be given Ronald J. Hodapp, Railroad Retirement and Finance Subsidiaries Making to comments and suggestions submitted Board, 844 N. Rush Street, Chicago, Public Offerings of Securities in the in writing within 60 days of this Illinois 60611–2902. Written comments United States publication. should be recieved within 60 days of Rule 489 under the Securities Act of Please direct your written comments this notice. 1933 (17 CFR 230.489) requires foreign to Kenneth A. Fogash, Acting Associate Executive Director/CIO, Office of Chuck Mierzwa, banks and foreign insurance companies and holding companies and finance Information Technology, Securities and Clearance Officer. subsidiaries of foreign banks and foreign Exchange Commission, 450 Fifth Street, [FR Doc. 03–8603 Filed 4–8–03; 8:45 am] insurance companies that are excepted NW., Washington, DC, 20549. BILLING CODE 7905–01–M from the definition of ‘‘investment Dated: April 2, 2003. company’’ by virtue of rules 3a–1, 3a– Margaret H. McFarland, 5, and 3a–6 under the Investment Deputy Secretary. Company Act of 1940 to file Form F–N [FR Doc. 03–8633 Filed 4–8–03; 8:45 am] SECURITIES AND EXCHANGE to appoint an agent for service of BILLING CODE 8010–01–P COMMISSION process United States when making a public offering of securities. Proposed Collection; Comment Approximately four entities are required SECURITIES AND EXCHANGE Request by rule 489 to file Form F–N, which is COMMISSION Upon written request, copies available from: estimated to require an average of one hour to complete. The estimated annual [Release No. 34–47622; File No. SR–Amex– Securities and Exchange Commission, 2003–20] Office of Filings and Information burden of complying with the rule’s Services, 450 Fifth Street, NW., filing requirement is approximately five Self-Regulatory Organizations; Notice Washington, DC 20549. hours, as one of the entities has of Filing and Immediate Effectiveness Extension: submitted multiple filings. of Proposed Rule Change by the Rule 489 and Form F–N; SEC File No. 270– The estimates of average burden hours American Stock Exchange LLC to 361; OMB Control No. 3235–0411. are made solely for the purposes of the Extend a Pilot Program Relating to Act and are not derived from a Crossing Procedures on the Amex in Notice is hereby given that, pursuant comprehensive or even representative Nasdaq National Market Securities to the Paperwork Reduction Act of 1995 survey or study of the cost of (‘‘Act’’) (44 U.S.C. 3501 et seq.), the Commission rules and forms. April 2, 2003. Securities and Exchange Commission Written comments are invited on: (a) Pursuant to section 19(b)(1) of the (‘‘Commission’’) is soliciting comments Whether the proposed collection of Securities Exchange Act of 1934 on the collection of information information is necessary for the proper (‘‘Act’’),1 and rule 19b–4 thereunder,2 summarized below. The Commission performance of the functions of the notice is hereby given that on March 26, plans to submit this existing collection agency, including whether the 2003, the American Stock Exchange LLC of information to the Office of information will have practical utility; Management and Budget for extension (b) the accuracy of the agency’s estimate 1 15 U.S.C. 78s(b)(1). and approval. of the burden of the collection of 2 17 CFR 240.19b–4.

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(‘‘Amex’’ or ‘‘Exchange’’) filed with the extending until March 31, 2003.7 The C. Self-Regulatory Organization’s Securities and Exchange Commission Amex initially filed the pilot program in Statement on Comments on the (‘‘Commission’’) the proposed rule SR–Amex–2002–58.8 The Exchange Proposed Rule Change Received From change as described in items I, II and III now proposes to extend the pilot for a Members, Participants or Others below, which items have been prepared six-month period until September 30, The Exchange did not receive any by the Exchange. On March 31, 2003, 2003. Proposed Amex Rule 126(g), written comments on the proposed rule the Amex amended the proposed rule Commentary .06 provides that a floor change. change.3 The Exchange filed the broker is permitted to effect cross III. Date of Effectiveness of the proposal pursuant to section 19(b)(3)(A) transactions in Nasdaq National Market 4 Proposed Rule Change and Timing for of the Act, and rule 19b–4(f)(6) securities involving 5,000 shares or 5 Commission Action thereunder, which renders the proposal more without interference by the effective upon filing with the specialist or market makers if, prior to Because the foregoing proposed rule 6 Commission. The Commission is presenting the cross transaction, the change does not: publishing this notice to solicit floor broker first requests a quote for the (i) significantly affect the protection of investors or the public interest; comments on the proposed rule change, subject security. These requests place as amended, from interested persons. (ii) impose any significant burden on the specialist and market makers on competition; and I. Self-Regulatory Organization’s notice that the floor broker intends to (iii) become operative for 30 days Statement of the Terms of Substance of cross within the bid-offer spread. This from the date on which it was filed, or the Proposed Rule Change arrangement ensures that a specialist or such shorter time as the Commission market maker retains the opportunity to may designate, it has become effective The Amex proposes to extend until better the cross price by updating their September 30, 2003 its pilot program pursuant to section 19(b)(3)(A) of the quote, but precludes the specialist or 11 12 under Commentary .06 to Amex rule Act and rule 19b–4(f)(6) thereunder. market maker from breaking up a cross 126(g) relating to crossing procedures on At any time within 60 days of the filing transaction after the cross transaction is of the proposed rule change, the the Amex in Nasdaq National Market presented. The floor broker retains the Commission may summarily abrogate securities. The Amex proposes no such rule change if it appears to the substantive changes to the pilot, other ability to present both sides of the order Commission that such action is than extending its operation until at the post if the customers so desire. necessary or appropriate in the public September 30, 2003. The text of the The Amex is making no changes to interest, for the protection of investors, proposed rule change is available at the the pilot as filed with the Commission or otherwise in furtherance of the Amex and at the Commission. in SR–Amex–2002–58, other than to purposes of the Act. extend the pilot program until II. Self-Regulatory Organization’s The Amex has requested that the September 30, 2003. Statement of the Purpose of, and Commission accelerate the operative Statutory Basis for, the Proposed Rule 2. Statutory Basis date. The Commission believes waiving Change the 30-day operative delay is consistent The Exchange believes that the with the protection of investors and the In its filing with the Commission, the proposal is consistent with section 6(b) public interest. Acceleration of the Exchange included statements of the Act 9 in general, and furthers the operative date will allow the pilot to concerning the purpose of and basis for objectives of section 6(b)(5) 10 in operate without interruption until its proposal and discussed any particular in that it is designed to September 30, 2003. For these reasons, comments it received regarding the prevent fraudulent and manipulative the Commission designates the proposal proposal. The text of these statements acts and practices, to promote just and to be effective and operative upon filing may be examined at the places specified equitable principles of trade, to foster with the Commission.13 in item IV below. The Amex has cooperation and coordination with IV. Solicitation of Comments prepared summaries, set forth in persons engaged in facilitating sections A, B and C below, of the most transactions in securities, to remove Interested persons are invited to submit written data, views, and significant aspects of such statements. impediments to and perfect the arguments concerning the foregoing, mechanism of a free and open market A. Self-Regulatory Organization’s including whether the proposal is and a national market system, to protect Statement of the Purpose of, and consistent with the Act. Persons making investors and the public interest, and is Statutory Basis for, the Proposed Rule written submissions should file six not designed to permit unfair Change copies thereof with the Secretary, discrimination between customers, 1. Purpose Securities and Exchange Commission, issuers, brokers, or dealers. 450 Fifth Street, NW., Washington, DC The Amex has implemented crossing B. Self-Regulatory Organization’s 20549–0609. Copies of the submission, procedures under Amex rule 126(g), Statement on Burden on Competition all subsequent amendments, all written Commentary .06 on a pilot basis statements with respect to the proposed The Exchange does not believe that rule change that are filed with the 3 See March 28, 2003 letter from Geraldine the proposed rule change will impose Commission, and all written Brindisi, Vice President and Corporate Secretary, any burden on competition. communications relating to the Amex, to Nancy Sanow, Assistant Director, Division of Market Regulation, Commission and attachments proposed rule change between the (‘‘Amendment No. 1’’). Amendment No. 1 7 See Securities Exchange Act Release No. 46635 completely replaces and supersedes the original (October 10, 2002), 67 FR 64424 (October 18, 11 15 U.S.C. 78s(b)(3)(A). filing. 2003)(SR–Amex–2002–74). 12 17 CFR 240.19b–4(f)(6). 4 15 U.S.C. 78s(b)(3)(A). 8 See Securities Exchange Act Release No. 46309 13 For purposes only of accelerating the operative 5 17 CFR 240.19b–4(f)(6). (August 5, 2002), 67 FR 51902 (August 9, 2002)(SR– date of this proposal, the Commission has 6 The Exchange asked the Commission to waive Amex–2002–58) considered the proposed rule’s impact on the 30-day operative delay. See Rule 19b–4(f)(6)(iii). 9 15 U.S.C. 78f(b). efficiency, competition, and capital formation. 15 17 CFR 240.19b–4(f)(6)(iii). 10 15 U.S.C. 78f(b)(5). U.S.C. 78c(f).

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Commission and any person, other than SECURITIES AND EXCHANGE the self-regulatory organization under those that may be withheld from the COMMISSION section 19(b)(3)(A)(ii) of the Act 4 and rule 19b–4(f)(2) thereunder.5 The public in accordance with the [Release No. 34–47621; File No. SR–NASD– provisions of 5 U.S.C. 552, will be 2003–56] Commission is publishing this notice to available for inspection and copying in solicit comments on the proposed rule the Commission’s Public Reference Self-Regulatory Organizations; Notice change, as amended, from interested Room. Copies of such filing will also be of Filing and Immediate Effectiveness persons. available for inspection and copying at of Proposed Rule Change and I. Self-Regulatory Organization’s the principal office of the Amex. All Amendment No. 1 Thereto by the Statement of the Terms of Substance of submissions should refer to file number National Association of Securities the Proposed Rule Change SR–Amex–2003–20 and should be Dealers, Inc. Regarding Fees for the Nasdaq proposes to waive certain fees submitted by April 30, 2003. Reporting of SuperMontage Transactions Through the Automated for the reporting of SuperMontage For the Commission, by the Division of Confirmation Transaction Service transactions associated with the use of Market Regulation, pursuant to delegated (‘‘ACT’’) the ACT.6 Nasdaq proposes to authority.14 implement the proposed rule change on Margaret H. McFarland, April 2, 2003. April 1, 2003. Pursuant to section 19(b)(1) of the Deputy Secretary. Below is the text of the proposed rule Securities Exchange Act of 1934 7 [FR Doc. 03–8609 Filed 4–8–03; 8:45 am] change, as amended. Proposed new (‘‘Act’’),1 and rule 19b–4 2 thereunder, language is italicized; proposed deleted BILLING CODE 8010–01–P notice is hereby given that on March 24, language is [bracketed]. 2003, the National Association of * * * * * Securities Dealers, Inc. (‘‘NASD’’), through its subsidiary, The Nasdaq 7000. CHARGES FOR SERVICES AND Stock Market, Inc. (‘‘Nasdaq’’), EQUIPMENT submitted to the Securities and 7010. System Services Exchange Commission (‘‘Commission’’) the proposed rule change as described (a)–(f) No change. in items I, II, and III below, which items (g) Automated Confirmation have been prepared by Nasdaq. On Transaction Service March 27, 2003, Nasdaq filed (1) The following charges shall be Amendment No. 1 to the proposed rule paid by the participant for use of the change.3 Nasdaq has designated this Automated Confirmation Transaction proposal as one establishing or changing Service (ACT): a due, fee or other charge imposed by Transaction Related Charges:

Reporting of transactions through SuperMontage (or any other trans- $0.029/side (subject to waiver under paragraph (2) below). action execution system that makes use of SuperMontage’s functionality to report transactions). Reporting of all other transactions in Nasdaq National Market and SmallCap Market securities not subject to comparison through ACT (‘‘Covered Transactions’’) Average daily volume of media transaction reports for Covered Fee per side for reports of Covered Transactions to which such par- Transactions during the month in which a participant is the ticipant is a party: reporting party: 0 to 10,000 ...... $0.029. 10,001 to 50,000 ...... $0.029 for a number of reports equal to 10,000 times the number of trading days in the month $0.015 for all remaining reports. More than 50,000 ...... $0.029 for a number of reports equal to 10,000 times the number of trading days in the month $0.015 for a number of reports equal to 40,000 times the number of trading days in the month $0.00 for all remaining reports. Reporting of all other transactions not subject to comparison through $0.029/side. ACT. Comparison ...... $0.0144/side per 100 shares (minimum 400 shares; maximum 7,500 shares). Late Report—T+N ...... $0.288/side. Browse/query ...... $0.288/query*. Terminal fee ...... $57.00/month (ACT only terminals).

14 17 CFR 200.30–3(a)(12). activity associated with all of those MPIDs will be 5 17 CFR 240.19b–4(f)(2). 1 15 U.S.C. 78s(b)(1). aggregated; however, activity associated with 6 Nasdaq represents that this filing applies to 2 17 CFR 240.19b–4. MPIDs assigned to subsidiaries or other affiliates of usage of ACT by NASD members. The usage of ACT 3 See letter from John M. Yetter, Assistant General the market participant that have a different CRD by non-members is governed by NASD Rule 6120. number will not be aggregated. See SR–NASD– Counsel, Nasdaq, to Katherine A. England, 7 2003–17 (permitting market makers and ECNs to The proposed rule text is marked to show Assistant Director, Division of Market Regulation, changes from the language of the NASD Rule 7010 Commission, dated March 26, 2003 (‘‘Amendment receive a second identifier). For purposes of as amended by SR–NASD–2003–51 (filed March 24, No. 1’’). In Amendment No. 1, Nasdaq amended its determining the effective date of the filing and proposal to state that, for purposes of determining calculating the 60-day abrogation period, the 2003). That proposed rule change, which was eligibility for the fee waiver, if a market participant Commission considers the period to commence on effective immediately upon filing, introduced has more than one market participant identifier March 27, 2003, the date that Nasdaq filed volume discounts for reporting most non- (‘‘MPID’’) associated with the same Central Amendment No. 1. SuperMontage transactions in Nasdaq National Registration Depository (‘‘CRD’’) number, the 4 15 U.S.C. 78s(b)(3)(A)(ii). Market and SmallCap Market securities.

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CTCI fee ...... $575.00/month. WebLink ACT ...... $300/month (full functionality) or $150/month (up to an average of twenty transactions per day each month) **. Risk Management Charges ...... $0.035/side and $17.25/month per correspondent firm (maximum $10,000/month per correspondent firm). Corrective Transaction Charge ...... $0.25/Cancel, Error, Inhibit, Kill, or ‘‘No’’ portion of No/Was trans- action, paid by reporting side; $0.25/Break, Decline transaction, paid by each party. ACT Workstation ...... $525/logon/month ***.

(2) The $0.029 fee for reporting of Subsequent queries for more data on the executed through SuperMontage (or any transactions executed through same security will also be processed free. other transaction execution system, SuperMontage (and other transaction Any subsequent query on a different security such as Liquidity Tracker, that uses execution systems that make use of will incur the $0.288 query charge. SuperMontage’s functionality to report SuperMontage’s functionality to report ** For the purposes of this service only, a transaction is defined as an original trade transactions). Currently, Nasdaq transactions) will be waived for an ACT entry, either on trade date or as-of assesses a fee of $0.029 per side for the participant during any month in which transactions per month. reporting of such transactions, which the participant: (i) executed an average *** A firm that uses ACT risk management are reported to ACT automatically. daily volume of 10,000 or more through one or more NWII terminals when Under the proposed rule change, as transactions through SuperMontage or the ACT Workstation is introduced will be amended, however, this fee would be any other transaction execution system eligible to evaluate the ACT Workstation for waived for a participant during a month using SuperMontage’s functionality to a free, three-month trial period, provided that in which the participant: (i) Executed an report transactions; (ii) reported to ACT the firm continues to pay charges associated average daily volume of 10,000 or more with its NWII terminal(s) during that period. at least 98% of the internalized transactions through SuperMontage (or transactions in Nasdaq National Market (h)–(s) No change. any other system that uses and SmallCap Market securities * * * * * SuperMontage functionality to report executed by the participant during the trades); (ii) reported to ACT at least 98% month; and (iii) posted in II. Self-Regulatory Organization’s of the internalized transactions 8 in SuperMontage at least 70% of the bids, Statement of the Purpose of, and Nasdaq National Market and SmallCap offers, and non-marketable limit orders Statutory Basis for, the Proposed Rule market securities executed by the in Nasdaq National Market and Change participant during the month; and (iii) SmallCap Market securities In its filing with the Commission, posted in SuperMontage at least 70% of communicated by the participant to any Nasdaq included statements concerning the bids, offers, and non-marketable market center. Nasdaq may request that the purpose of and basis for the limit orders in Nasdaq National Market a participant provide data supporting proposed rule change and discussed any and SmallCap Market securities the participant’s certification that it is comments it received on the proposed communicated by the participant to any eligible for the foregoing waiver, and rule change. The text of these statements market center.9 A participant seeking to will deem a participant that fails to may be examined at the places specified qualify for the fee waiver would certify provide such data upon request to be in item IV below. Nasdaq has prepared its eligibility, and Nasdaq could request ineligible for the waiver. If a participant summaries, set forth in sections A, B, that the participant provide data to has more than one market participant and C below, of the most significant support its certification. If a participant identifier (‘‘MPID’’) associated with the aspects of such statements. has more than one MPID associated Central Registration Depository (‘‘CRD’’) with the CRD number under which it A. Self-Regulatory Organization’s number under which it conducts conducts business, eligibility will be Statement of the Purpose of, and business, eligibility will be determined determined by aggregating activity Statutory Basis for, the Proposed Rule by aggregating activity associated with associated with all of its MPIDs (but not Change all of its MPIDs (but not activity activity associated with MPIDs assigned associated with MPIDs assigned to 1. Purpose to subsidiaries or other affiliates with a subsidiaries or other affiliates with a different CRD number). different CRD number). ACT is an automated trade reporting The term ‘‘internalized transaction’’ and reconciliation service that speeds Nasdaq represents that it is currently refers to a transaction in which a the post-execution steps of price and facing competition from market centers customer order received by the volume reporting, comparison, and that are willing to offer market participant is executed against another clearing of trades completed in Nasdaq, participants free trade reporting customer order received by the OTC Bulletin Board, and other over-the- services,10 and from one market center participant, or against the account of counter securities. ACT handles the participant as principal, but that is transactions executed through Nasdaq’s 8 The Nasdaq proposal defines ‘‘internalized transactions’’ as a transaction in which a customer not facilitated or executed using a automated trading systems, as well as order received by the participant is executed against Nasdaq system or the system of any transactions negotiated over the another customer order received by the participant, market center other than the telephone and internalized transactions. or against the account of the participant as participant. The term ‘‘market center’’ It also manages post-execution principal, but that is not facilitated or executed using a Nasdaq system or the system of any market refers to any exchange market maker, procedures for transactions in exchange- center other than the participant. OTC market maker, alternative trading listed securities that are traded in the 9 The Nasdaq proposal defines ‘‘market center’’ as system, national securities exchange, or Nasdaq InterMarket. any exchange market maker, OTC market maker, national securities association. Nasdaq represents that, as part of an alternative trading system, national securities ongoing effort to reduce the costs exchange, or national securities association. * Each ACT query incurs the $0.288 fee; 10 See, e.g., Securities Exchange Act Release No. however, the first accept or decline processed incurred by market participants to use 47331 (February 10, 2003), 68 FR 7635 (February for a transaction is free, to insure that no Nasdaq services, it proposes to waive 14, 2003) (File No. SR–NASD–2003–09) more than $0.288 is charged per comparison. the ACT fees for transactions that are Continued

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that is effectively sharing market data operates or controls. Nasdaq believes communications relating to the revenue associated with transactions in that the proposal, as amended, will proposed rule change between the Nasdaq-listed securities by allow a reduction in the overall level of Commission and any person, other than ‘‘mutualizing’’ revenues with certain of ACT fees paid by market participants those that may be withheld from the its members,11 notwithstanding the while ensuring that each participant public in accordance with the Commission’s Order of Summary pays an equitable share of the costs provisions of 5 U.S.C. 552, will be Abrogation (the ‘‘Order’’) regarding associated with ACT. available for inspection and copying in market data revenue sharing the Commission’s Public Reference programs.12 Because Nasdaq is not B. Self-Regulatory Organization’s Room. Copies of such filing will also be permitted to share market information Statement on Burden on Competition available for inspection and copying at revenues from Nasdaq-listed securities, Nasdaq does not believe that the the principal office of Nasdaq. All and because it has too many market proposed rule change will result in any submissions should refer to File No. participants to effect a ‘‘mutualization’’ burden on competition that is not SR–NASD–2003–56 and should be ploy, Nasdaq believes that it is placed necessary and appropriate in submitted by April 30, 2003. in a fundamentally unfair competitive furtherance of the purposes of the Act. For the Commission, by the Division of position. Nasdaq is proposing wide- C. Self-Regulatory Organization’s Market Regulation, pursuant to delegated ranging price reductions across multiple 19 Statement on Comments on the authority. services,13 but Nasdaq represents that it Proposed Rule Change Received From Margaret H. McFarland, incurs substantial costs in order to Members, Participants, or Others Deputy Secretary. operate ACT and to support its [FR Doc. 03–8632 Filed 4–8–03; 8:45 am] regulatory function. Nasdaq believes Written comments were neither BILLING CODE 8010–01–P that the only way for it to compete with solicited nor received. an exchange that can single out firms to III. Date of Effectiveness of the ‘‘mutualize’’ with is to provide preferred Proposed Rule Change and Timing for SECURITIES AND EXCHANGE pricing to its members that continue to Commission Action COMMISSION support Nasdaq with their orders. Accordingly, Nasdaq believes that it is The foregoing rule change, as [Release No. 34–47615; File No. SR–PCX– reasonable to offer free reporting of amended, has become effective upon 2002–54] March 27, 2003, the date of filing of SuperMontage trades to a firm only if Self-Regulatory Organizations; Notice the firm’s use of ACT and Amendment No. 1 to the proposed rule change, pursuant to section of Filing of Proposed Rule Change by SuperMontage during a particular the Pacific Exchange, Inc. Relating to month is sufficiently consistent to allow 19(b)(3)(A)(ii) of the Act 16 and subparagraph (f)(2) of rule 19b–4 a One Tick Step Up Requirement for Nasdaq to conclude that the lost Auto-Ex in Certain Option Issues revenue will be partially offset by other thereunder,17 because it establishes or ACT revenue and transaction execution changes a due, fee, or other charge April 2, 2003. revenue. imposed by the self-regulatory Pursuant to section 19(b)(1) of the organization. At any time within 60 2. Statutory Basis Securities Exchange Act of 1934 days of the filing of the proposed rule (‘‘Act’’) 1 and rule 19b–4 thereunder,2 Nasdaq believes that the proposed change, the Commission may summarily notice is hereby given that on August rule change, as amended, is consistent abrogate such rule change if it appears 27, 2002, the Pacific Exchange, Inc. with the provisions of section 15A of to the Commission that such action is (‘‘PCX’’ or ‘‘Exchange’’) filed with the the Act,14 in general and with section necessary or appropriate in the public Securities and Exchange Commission 15A(b)(5) of the Act,15 in particular, in interest, for the protection of investors, (‘‘Commission’’ or ‘‘SEC’’) the proposed that it provides for the equitable or otherwise in furtherance of the rule change as described in items I, II allocation of reasonable dues, fees and purposes of the Act.18 and III below, which items have been other charges among members and IV. Solicitation of Comments prepared by the self-regulatory issuers and other persons using any organization. On March 19, 2003, the facility or system which the NASD Interested persons are invited to Exchange submitted Amendment No. 1 submit written data, views and to the proposed rule change. The (eliminating trade reporting fees associated with the arguments concerning the foregoing, Commission is publishing this notice to NASD’s Alternative Display Facility). including whether the proposed rule solicit comments on the proposed rule 11 Securities Exchange Act Release No. 46688 change, as amended, is consistent with (October 18, 2002), 67 FR 65816 (October 28, 2002) change from interested persons. (SR–CSE–2002–14) (describing the Cincinnati Stock the Act. Persons making written Exchange’s market data revenue sharing program submissions should file six copies I. Self-Regulatory Organization’s for Nasdaq securities). thereof with the Secretary, Securities Statement of the Terms of Substance of 12 Securities Exchange Act Release No. 46159 and Exchange Commission, 450 Fifth the Proposed Rule Change (July 2, 2002), 67 FR 45775 (July 10, 2002). Street, NW., Washington, DC 20549– The Exchange is proposing to amend 13 See File Nos. SR–NASD–2003–51 (filed March 24, 2003) (reporting of non-SuperMontage trades); 0609. Copies of the submission, all its rules by adopting a one tick step up SR–NASD–2003–53 (filed March 24, 2003) and SR– subsequent amendments, all written requirement for Market Makers who are NASD–2003–54 (filed March 24, 2003) (Nasdaq statements with respect to the proposed participating on the Exchange’s Testing Facility); SR–NASD–2003–47 (filed March rule change that are filed with the Automatic Execution System (‘‘Auto- 21, 2003) and SR–NASD–2003–48 (filed March 21, 2003) (NWII logons); SR–NASD–2003–43 (filed Commission, and all written Ex’’) in certain option issues. The text March 20, 2003) and SR–NASD–2003–46 (filed of the proposed rule change is below. March 20, 2003) (computer-to-computer interface 16 15 U.S.C. 78s(b)(3)(a)(ii). Additions are in italics. pricing); see also Securities Exchange Act Release 17 17 CFR 240.19b–4(f)(2). * * * * * No. 47300 (January 31, 2003), 68 FR 6234 (February 18 For purposes of determining the effective date 6, 2003) (SR–NASD–2003–10) (quotation update of the filing and calculating the 60-day abrogation fees). period, the Commission considers the period to 19 17 CFR 200.30–3(a)(12). 14 15 U.S.C. 78o–3. commence on March 27, 2003, the date that Nasdaq 1 15 U.S.C. 78s(b)(1). 15 15 U.S.C. 78o–3(b)(5). filed Amendment No. 1. 2 17 CFR 240.19b–4.

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5231 Automatic Execution System the proposed rule change and discussed increment away from the PCX market Rule 6.87(a)–(d)—No change. any comments it received on the price. (e) Market Maker Requirements and proposed rule change. The text of these Proposed PCX rule 6.87(e)(8) will Eligibility. Any Exchange Member who statements may be examined at the apply only to non-broker-dealer orders is registered as a Market Maker and who places specified in item IV below. The for ten contracts or less in option issues has obtained written authorization from Exchange has prepared summaries, set that are ranked in the 120 most actively a clearing member is eligible to forth in sections A, B and C below, of traded equity options based on the total participate on the Auto-Ex system, the most significant aspects of such number of contracts traded nationally subject to the following conditions and statements. for a specified month based on volume requirements: as reported by the Options Clearing A. Self-Regulatory Organization’s Corporation. In addition, the rule will (1)–(7)—No change. Statement of the Purpose of, and (8) Auto-Ex Tick Better Requirement only apply to orders in option series Statutory Basis for, the Proposed Rule that are not designated as LEAPS in Certain Issues. Change (A) Except as provided in subsection pursuant to PCX rule 6.4(e). (B), below, Lead Market Makers who are 1. Purpose The Exchange’s determination of participating on Auto-Ex must assure whether an equity option ranks in the The Exchange is proposing to adopt top 120 most active, nationally-traded that Exchange staff (i.e., the Order Book new PCX rule 6.87(e)(8) relating to the Official or Control Room staff) have set issues will be based on volume statistics Exchange’s Auto-Ex System for options reported by the Options Clearing the Auto-Ex System either: trading. Currently, Options Market (i) to execute incoming electronic Corporation. For each current month, Makers who are logged on to Auto-Ex orders at prices that are one trading the Exchange’s determination of are obligated to meet certain increment better than the Exchange’s whether an equity option ranks in the requirements as set forth in PCX rule disseminated bid or offering price when top 120 most active issues will be based 6.87(e)(1)–(7). The Exchange is another options exchange is on volume statistics for the three proposing to adopt a new rule requiring disseminating the national best bid or calendar months of trading activity Lead Market Makers (‘‘LMMs’’) on Auto- offer at a price that is one trading beginning four months prior to the Ex to ‘‘step up’’ and execute certain increment better than the price being current month. The Exchange intends to orders at better prices than the Exchange disseminated by the Exchange. The notify its Members of the issues that are is disseminating, if another options order will default for manual designated to be in the top 120 via a exchange is disseminating that better representation in the trading crowd regulatory bulletin that will be price. when another options exchange is published at the beginning of each disseminating a price that is more than Current PCX rule 6.87(i) allows Auto- month. one trading increment better than the Ex to be set to execute inbound 2. Basis price being disseminated by the electronic orders at prices reflecting the The Exchange believes that the Exchange, or national best bid or offer (‘‘NBBO’’) in selected issues, subject to the approval proposal is consistent with section (ii) to execute incoming electronic 3 orders at the NBBO pursuant to Rule of the Options Floor Trading Committee 6(b)(5) of the Act in that it designed to 6.87(i). (‘‘OFTC’’). Under the proposal, LMMs promote just and equitable principles of (B) Applicability. The requirements of who are participating on Auto-Ex must trade, to remove impediments and to subsection (A), above, will apply only to assure that Exchange staff (i.e., the perfect the mechanism of a free and non-broker-dealer orders for ten Order Book Official or Control Room open market and a national market contracts or less in option issues that staff) sets the Auto-Ex System in either system, and in general, to protect are ranked in the 120 most actively of two ways for the selected issues as investors and the public interest. traded equity options based on the total defined in PCX Rule 6.87(e)(8)(B). First, B. Self-Regulatory Organization’s number of contracts traded nationally when another options exchange is Statement on Burden on Competition disseminating a price at the NBBO and for a specified month based on volume The Exchange does not believe that as reported by the Options Clearing that price is one trading increment better than the price being disseminated the proposed rule change will impose Corporation. For each current month, any burden on competition that is not the Exchange’s determination of by the Exchange, the Exchange staff may set the Auto-Ex system may to execute necessary or appropriate in furtherance whether an equity option ranks in the of the purposes of the Act. top 120 most active issues will be based incoming electronic orders at prices that on volume statistics for the three are one trading increment better than C. Self-Regulatory Organization’s calendar months of trading activity the Exchange’s disseminated bid or Statement on Comments on the beginning four months prior to the offering price. Where the Exchange is Proposed Rule Change Received From current month. In addition, the disseminating a price that is more than Members, Participants, or Others one trading increment inferior to the requirements of Subsection (A), above, Written comments on the proposed price being disseminated by another will only apply to orders in option series rule change were neither solicited nor options exchange, the order will default that are not designated as LEAPS received. pursuant to Rule 6.4(e). for manual representation in the trading * * * * * crowd. III. Date of Effectiveness of the Alternatively, an LMM may have the Proposed Rule Change and Timing for II. Self-Regulatory Organization’s Exchange staff set the Auto-Ex system to Commission Action Statement of the Purpose of, and execute incoming electronic orders at Within 35 days of the date of Statutory Basis for, the Proposed Rule the NBBO pursuant to PCX rule 6.87(i). publication of this notice in the Federal Change Pursuant to PCX rule 6.87(i), any order Register or within such longer period (i) In its filing with the Commission, the that is not executed at the NBBO will be as the Commission may designate up to Exchange included statements manually presented in the trading concerning the purpose of and basis for crowd if it is more than one trading 3 15 U.S.C. 78s(b)(2).

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90 days of such date if it finds such ADDRESSES: Send all comments Annual Responses: 1. longer period to be appropriate and regarding whether these information Annual Burden: 1,244. publishes its reasons for so finding or collections are necessary for the proper ADDRESSES: Send all comments (ii) as to which the self-regulatory performance of the function of the regarding whether this information organization consents, the Commission agency, whether the burden estimates collection is necessary for the proper will: are accurate, and if there are ways to performance of the function of the (A) By order approve such proposed minimize the estimated burden and agency, whether the burden estimates rule change, or enhance the quality of the collections, to are accurate, and if there are ways to (B) Institute proceedings to determine Linda K. Waters, Program Analyst, minimize the estimated burden and whether the proposed rule change Office of Government Contracting, enhance the quality of the collection, to should be disapproved. Small Business Administration, 409 3rd Sandra L. Johnston, Program Analyst, IV. Solicitation of Comments Street SW., Suite 8800, Washington, DC Office of Financial Assistance, Small 20416. Business Administration, 409 3rd Street Interested persons are invited to SW., Suite 8300 Washington, DC 20416. submit written data, views and FOR FURTHER INFORMATION CONTACT: arguments concerning the foregoing, Linda K. Waters, Program Analyst, (202) FOR FURTHER INFORMATION CONTACT: including whether the proposed rule 205–7315 or Curtis B. Rich, Sandra L. Johnston, Program Analyst, change is consistent with the Act. Management Analyst, (202) 205–7030. (202) 205–7528 or Curtis B. Rich, Persons making written submissions SUPPLEMENTARY INFORMATION: Management Analyst, (202) 205–7030. should file six copies thereof with the Title: ‘‘Prime Contracts program SUPPLEMENTARY INFORMATION: Secretary, Securities and Exchange Quarterly Report Part A and B’’. Title: ‘‘CDC Annual Report Guide’’. Commission, 450 Fifth Street, NW., Form No’s: 843 A & B. Form No’s: 1253 & 1235A. Description of Respondents: Certified Washington, DC 20549–0609. Copies of Description of Respondents: Development Companies. Procurement Center Representatives. the submission, all subsequent Annual Responses: 270. amendments, all written statements Annual Responses: 63. Annual Burden: 7,560. with respect to the proposed rule Annual Burden: 1,020. ADDRESSES: Send all comments change that are filed with the SUPPLEMENTARY INFORMATION: regarding whether this information Commission, and all written Title: ‘‘Application for Certificate of collection is necessary for the proper communications relating to the Competency’’. performance of the function of the proposed rule change between the Form No: 1531. agency, whether the burden estimates Commission and any person, other than Description of Respondents: Small are accurate, and if there are ways to those that may be withheld from the Business Owners. minimize the estimated burden and public in accordance with the Annual Responses: 300. enhance the quality of the collection, to provisions of 5 U.S.C. 552, will be Annual Burden: 2,400. Marcia Pixley, Regulatory Fairness available for inspection and copying in SUPPLEMENTARY INFORMATION: Coordinator, Office of the National the Commission’s Public Reference Title: ‘‘7(j) Management and Ombudsman, Small Business Room. Copies of such filing will also be Technical Assistance Program Administration, 409 3rd Street SW., available for inspection and copying at Sponsored Training Impact and Suite 7125 Washington, DC 20416. the principal office of the PCX. All Longitudinal Studies’’. FOR FURTHER INFORMATION CONTACT: submissions should refer to File No. Form No’s: 2167, 2168, 2169, 2170, Marcia Pixley, Regulatory Fairness SR–PCX–2002–54 and should be 2171. Coordinator, (202) 619–1732 or Curtis B. submitted by April 30, 2003. Description of Respondents: Person Rich, Management Analyst, (202) 205– involved in the Executive Education For the Commission, by the Division of 7030. Market Regulation, pursuant to delegated Program (EEP). authority.4 Annual Responses: 500. SUPPLEMENTARY INFORMATION: Title: ‘‘Small Business and Margaret H. McFarland, Annual Burden: 250. Agriculture Regulatory Enforcement Deputy Secretary. ADDRESSES: Send all comments Form’’. [FR Doc. 03–8608 Filed 4–8–03; 8:45 am] regarding whether this information Form No: 1993. BILLING CODE 8010–01–P collection is necessary for the proper Description of Respondents: Small performance of the function of the Business Owners and Farmers. agency, whether the burden estimates Annual Responses: 1,000. SMALL BUSINESS ADMINISTRATION are accurate, and if there are ways to Annual Burden: 500. minimize the estimated burden and ADDRESSES: Send all comments Data Collection Available for Public enhance the quality of the collection, to regarding whether this information Comments and Recommendations Charles Ou, Economist, Office of collection is necessary for the proper Advocacy, Small Business performance of the function of the ACTION: Notice and request for Administration, 409 3rd Street SW., comments. agency, whether the burden estimates Suite 7800, Washington, DC 20416. are accurate, and if there are ways to SUMMARY: In accordance with the FOR FURTHER INFORMATION CONTACT: minimize the estimated burden and Paperwork Reduction Act of 1995, this Charles Ou, Economist, (202) 205–6966 enhance the quality of the collection, to notice announces the Small Business or Curtis B. Rich, Management Analyst, Cynthia G. Pitts, Program Analyst, Administration’s intentions to request (202) 205–7030. Office of Disaster Assistance, Small approval on a new and/or currently SUPPLEMENTARY INFORMATION: Business Administration, 409 3rd Street approved information collection. Title: ‘‘Value of Worker Training SW., Suite 6050 Washington, DC 20416. DATES: Submit comments on or before Programs to Small Business’’. FOR FURTHER INFORMATION CONTACT: June 9, 2003. Form No: N/A. Cynthia G. Pitts, Program Analyst, (202) Description of Respondents: Small 205–7570 or Curtis B. Rich, 4 17 CFR 200.30–3(a)(12). and Large Businesses. Management Analyst, (202) 205–7030.

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SUPPLEMENTARY INFORMATION: SOCIAL SECURITY ADMINISTRATION 9 a.m. to 5 p.m.; and Wednesday, May Title: ‘‘Pre-Disaster Mitigation Small 21, 2003 from 9 a.m. to 1 p.m. Business Loan Application’’. The Ticket to Work and Work Agenda: The Panel will hold a Form No: 5M. Incentives Advisory Panel Meeting quarterly meeting. Briefings, Description of Respondents: Business AGENCY: Social Security Administration presentations, full Panel deliberations Application for the Pre-Disaster (SSA). and other Panel business will be held mitigation loan program. ACTION: Notice of meetings. Monday, Tuesday and Wednesday, May Annual Responses: 2,500. 19, 20, and 21, 2003. Public testimony Annual Burden: 5,000. DATES: May 19, 2003, 10 a.m.—3 p.m.*; will be heard in person Monday, May 19, 2003 from 2:30 p.m. to 3 p.m. and Jacqueline White, May 20, 2003, 9 a.m.—5 p.m.; May 21, 2003, 9 a.m.—1 p.m. on Wednesday, May 21, 2003 from 9 Chief, Administrative Information Branch. a.m. to 9:30 a.m. Members of the public [FR Doc. 03–8663 Filed 4–8–03; 8:45 am] * The full deliberative panel meeting ends at 3. The standing committees of the Panel must schedule a timeslot in order to BILLING CODE 8025–01–P will meet from 3:15 p.m. until 6:15 p.m. comment. In the event that the public ADDRESSES: Embassy Suites Hotel at the comments do not take up the scheduled time period for public comment, the SMALL BUSINESS ADMINISTRATION Chevy Chase Pavilion, 4300 Military Road, NW., Washington DC, 20037, Panel will use that time to deliberate Phone: (202) 362–9300. and conduct other Panel business. [Declaration of Disaster #3483, Amdt #1] SUPPLEMENTARY INFORMATION: Individuals interested in providing testimony in person should contact the State of West Virginia Type of meeting: This is a quarterly meeting open to the public. The public Panel staff as outlined below to In accordance with notices received is invited to participate by coming to the schedule time slots. Each presenter will from the Department of Homeland address listed above. Public comment be called on by the Chair in the order Security—Federal Emergency will be taken during the quarterly in which they are scheduled to testify Management Agency, effective March meeting. The public is also invited to and is limited to a maximum five- 28, 2003 and April 2, 2003, the above submit comments in writing on the minute verbal presentation. Full written numbered declaration is hereby implementation of the Ticket to Work testimony on TWWIIA Implementation, amended to establish the incident and Work Incentives Improvement Act no longer than 5 pages, may be period for this disaster as beginning on (TWWIIA) of 1999 at any time. submitted in person or by mail, fax or February 16, 2003, and continuing Purpose: In accordance with section email on an on-going basis to the Panel through March 28, 2003. This 10(a)(2) of the Federal Advisory for consideration. declaration is also amended to include Committee Act, the Social Security Since seating may be limited, persons Calhoun, Fayette, Greenbrier, Mason, Administration (SSA) announces a interested in providing testimony at the McDowell, Mercer, Nicholas, Raleigh, meeting of the Ticket to Work and Work meeting should contact the Panel staff Upshur, Webster and Wyoming Incentives Advisory Panel (the Panel). by e-mailing Kristen M. Breland, at Counties in the State of West Virginia as Section 101(f) of Public Law 106–170 [email protected] or calling a disaster area due to damages caused establishes the Panel to advise the (202) 358–6423. by a severe winter storm, record snow, President, the Congress and the The full agenda for the meeting will heavy rains, flooding and landslides Commissioner of SSA, on issues related be posted on the Internet at http:// occurring on February 16, 2003, and to work incentives programs, planning www.ssa.gov/work/panel at least one continuing through March 28, 2003. and assistance for individuals with week before the meeting or can be In addition, applications for economic disabilities as provided under section received in advance electronically or by injury loans from small businesses 101(f)(2)(A) of the TWWIIA. The Panel fax upon request. is also to advise the Commissioner on located in the contiguous counties of Contact Information: Anyone matters specified in section 101(f)(2)(B) Barbour, Braxton, Gilmer, Harrison, requiring information regarding the of that Act, including certain issues Lewis, Monroe, Pocahontas, Randolph, Panel should contact the TWWIIA Panel related to the Ticket to Work and Self- Ritchie and Summers in the State of staff. Records are being kept of all Panel Sufficiency Program established under West Virginia; and Alleghany, Bath, proceedings and will be available for Bland, Giles and Tazewell Counties in section 101(a) of that Act. Interested parties are invited to attend public inspection by appointment at the the State of Virginia may be filed until Panel office. Anyone requiring the specified date at the previously the meeting. The Panel will use the meeting time to receive briefings, hear information regarding the Panel should designated location. All other counties contact the Panel staff by: contiguous to the above named primary presentations, conduct full Panel • Mail addressed to Social Security counties have been previously declared. deliberations on the implementation of Administration, Ticket to Work and All other information remains the TWWIIA and receive public testimony. The topics for the meeting will include Work Incentives Advisory Panel Staff, same, i.e., the deadline for filing 400 Virginia Avenue, SW., Suite 700, applications for physical damage is May presentations of briefing papers prepared for the Panel, SSA’s early Washington, DC 20024. 13, 2003, and for economic injury the • deadline is December 15, 2003. intervention demonstration project and Telephone contact with Kristen agency updates from SSA, the Breland at (202) 358–6423. (Catalog of Federal Domestic Assistance Department of Education and the • Fax at (202) 358–6440. Program Nos. 59002 and 59008) Department of Health and Human • E-mail to [email protected]. Dated: April 2, 2003. Services. Herbert L. Mitchell, The Panel will meet in person Dated: April 1, 2003. Associate Administrator for Disaster commencing on Monday, May 19, 2003 Carol Brenner, Assistance. from 10 a.m. to 3 p.m. (standing Designated Federal Officer. [FR Doc. 03–8662 Filed 4–8–03; 8:45 am] committee meetings from 3:15 p.m. to [FR Doc. 03–8580 Filed 4–8–03; 8:45 am] BILLING CODE 8025–01–P 6:15 p.m.); Tuesday, May 20, 2003 from BILLING CODE 4191–02–U

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DEPARTMENT OF THE TREASURY The following paragraph applies to all Public Law 104–13 (44 U.S.C. of the collections of information covered 3506(c)(2)(A)). Currently, the IRS is Internal Revenue Service by this notice: soliciting comments concerning an An agency may not conduct or existing final regulation, REG–107047– Proposed Collection; Comment sponsor, and a person is not required to 00 (TD 8985), Hedging Transactions Request for Form 8611 respond to, a collection of information (§ 1.1221–2). AGENCY: Internal Revenue Service (IRS), unless the collection of information DATES: Written comments should be Treasury. displays a valid OMB control number. received on or before June 9, 2003 to be Books or records relating to a collection ACTION: assured of consideration. Notice and request for of information must be retained as long ADDRESSES: Direct all written comments comments. as their contents may become material to Glenn P. Kirkland, Internal Revenue in the administration of any internal SUMMARY: The Department of the Service, room 6411, 1111 Constitution revenue law. Generally, tax returns and Treasury, as part of its continuing effort Avenue NW., Washington, DC 20224. to reduce paperwork and respondent tax return information are confidential, as required by 26 U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: burden, invites the general public and Requests for additional information or other Federal agencies to take this Request for Comments copies of the regulation should be opportunity to comment on proposed Comments submitted in response to directed to Carol Savage, (202) 622– and/or continuing information this notice will be summarized and/or 3945, or through the internet collections, as required by the included in the request for OMB [email protected]., Internal Paperwork Reduction Act of 1995, approval. All comments will become a Revenue Service, room 6407, 1111 Public Law 104–13 (44 U.S.C. matter of public record. Comments are Constitution Avenue NW., Washington, 3506(c)(2)(A)). Currently, the IRS is invited on: (a) Whether the collection of DC 20224. soliciting comments concerning Form information is necessary for the proper SUPPLEMENTARY INFORMATION: 8611, Recapture of Low-Income Housing performance of the functions of the Title: Hedging Transactions. Credit. agency, including whether the OMB Number: 1545–1480. DATES: Written comments should be information shall have practical utility; Regulation Project Number: REG– received on or before June 9, 2003 to be (b) the accuracy of the agency’s estimate 107047–00. assured of consideration. of the burden of the collection of Abstract: This regulation deals with ADDRESSES: Direct all written comments information; (c) ways to enhance the the character and timing of gain or loss to Glenn P. Kirkland, Internal Revenue quality, utility, and clarity of the from certain hedging transactions Service, room 6411, 1111 Constitution information to be collected; (d) ways to entered into by members of a Avenue NW., Washington, DC 20224. minimize the burden of the collection of consolidated group of corporations. The FOR FURTHER INFORMATION CONTACT: information on respondents, including regulation applies when one member of Requests for additional information or through the use of automated collection the group hedges its own risk, hedges copies of the form and instructions techniques or other forms of information the risk of another member, or enters should be directed to Carol Savage, technology; and (e) estimates of capital into a risk-shifting transaction with (202) 622–3945, or through the Internet or start-up costs and costs of operation, another member. Also, this regulation ([email protected].), Internal maintenance, and purchase of services clarifies the character of gain or loss Revenue Service, room 6407, 1111 to provide information. from the sale or exchange of property Constitution Avenue NW., Washington, Approved: April 1, 2003. that is a part of a business hedge. A DC 20224. Glenn P. Kirkland, taxpayer must identify the hedging transaction on its book and records SUPPLEMENTARY INFORMATION: IRS Reports Clearance Officer. before the close of the day on which the Title: Recapture of Low-Income [FR Doc. 03–8593 Filed 4–8–03; 8:45 am] Housing Credit. taxpayer enters into it and must also OMB Number: 1545–1035. BILLING CODE 4830–01–P identify the item, items, or aggregate Form Number: 8611. risk being hedged. The information will Abstract: IRC section 42 permits DEPARTMENT OF THE TREASURY be used to verify that a taxpayer is owners of residential rental projects properly reporting its business hedging providing low-income housing to claim Internal Revenue Service transactions. a credit against their income tax. If the Current Actions: There is no change to property is disposed of or if it fails to [REG–107047–00] this existing regulation. Type of Review: Extension of a meet certain requirements over a 15- Proposed Collection; Comment currently approved collection. year compliance period and a bond is Request for Regulation Project not posted, the owner must recapture on Affected Public: Business or other for- Form 8611 part of the credits taken in AGENCY: Internal Revenue Service (IRS), profit organizations. prior years. Treasury. Estimated Number of Respondents: Current Actions: There are no changes ACTION: Notice and request for 127,100. being made to the form at this time. comments. Estimated Time Per Respondent: 1 Type of Review: Extension of a hour, 20 minutes. currently approved collection. SUMMARY: The Department of the Estimated Total Annual Burden Affected Public: Business or other for- Treasury, as part of its continuing effort Hours: 171,050. profit organizations and individuals. to reduce paperwork and respondent The following paragraph applies to all Estimated Number of Respondents: burden, invites the general public and of the collections of information covered 1,200. other Federal agencies to take this by this notice: Estimated Time Per Respondent: 9 opportunity to comment on proposed An agency may not conduct or hrs., 2 min. and/or continuing information sponsor, and a person is not required to Estimated Total Annual Burden collections, as required by the respond to, a collection of information Hours: 10,841. Paperwork Reduction Act of 1995, unless the collection of information

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displays a valid OMB control number. Benefits; IA–140–86 (Temporary) Fringe institutions, farms and Federal, state, Books or records relating to a collection Benefits; Listed Property; and REG– local or tribal governments. of information must be retained as long 209785–95 (Final) Substantiation of Estimated Number of Respondents: as their contents may become material Business Expenses (§§ 1.61–2, 1.132–5, 28,582,150. in the administration of any internal and 1.274–5). Estimated Time Per Respondent: 1 hr., revenue law. Generally, tax returns and DATES: Written comments should be 20 min. tax return information are confidential, received on or before June 9, 2003, to be Estimated Total Annual Burden as required by 26 U.S.C. 6103. assured of consideration. Hours: 37,922,688. The following paragraph applies to all Request for Comments: Comments ADDRESSES: Direct all written comments of the collections of information covered submitted in response to this notice will to Glenn P. Kirkland, Internal Revenue be summarized and/or included in the by this notice: Service, room 6411, 1111 Constitution An agency may not conduct or request for OMB approval. All Avenue NW., Washington, DC 20224. comments will become a matter of sponsor, and a person is not required to FOR FURTHER INFORMATION CONTACT: public record. Comments are invited on: respond to, a collection of information Requests for additional information or (a) Whether the collection of unless the collection of information copies of regulation should be directed information is necessary for the proper displays a valid OMB control number. to Carol Savage, (202) 622–3945, or performance of the functions of the Books or records relating to a collection through the Internet at agency, including whether the of information must be retained as long [email protected]., Internal information shall have practical utility; as their contents may become material Revenue Service, room 6407, 1111 (b) the accuracy of the agency’s estimate in the administration of any internal Constitution Avenue NW., Washington, of the burden of the collection of revenue law. Generally, tax returns and DC 20224. information; (c) ways to enhance the tax return information are confidential, quality, utility, and clarity of the SUPPLEMENTARY INFORMATION: as required by 26 U.S.C. 6103. information to be collected; (d) ways to Title: EE–63–88 (Final and temporary Request for Comments: Comments minimize the burden of the collection of regulations) Taxation of Fringe Benefits submitted in response to this notice will information on respondents, including and Exclusions From Gross Income for be summarized and/or included in the through the use of automated collection Certain Fringe Benefits; IA–140–86 request for OMB approval. All techniques or other forms of information (Temporary) Fringe Benefits; Listed comments will become a matter of technology; and (e) estimates of capital Property; and REG–209785–95 (Final) public record. Comments are invited on: or start-up costs and costs of operation, Substantiation of Business Expenses. (a) Whether the collection of OMB Number: 1545–0771. maintenance, and purchase of services information is necessary for the proper Regulation Project Number: EE–63– to provide information. performance of the functions of the 88; IA–140–86; and REG–209785–95. agency, including whether the Approved: April 1, 2003. Abstract: information shall have practical utility; Glenn P. Kirkland, EE–63–88—This regulation provides (b) the accuracy of the agency’s estimate IRS Reports Clearance Officer. guidance on the tax treatment of taxable of the burden of the collection of [FR Doc. 03–8594 Filed 4–8–03; 8:45 am] and nontaxable fringe benefits and information; (c) ways to enhance the BILLING CODE 4830–01–P general and specific rules for the quality, utility, and clarity of the valuation of taxable fringe benefits in information to be collected; (d) ways to accordance with Code sections 61 and minimize the burden of the collection of DEPARTMENT OF THE TREASURY 132. The regulation also provides information on respondents, including guidance on exclusions from gross through the use of automated collection Internal Revenue Service income for certain fringe benefits. techniques or other forms of information IA–140–86—This regulation provides [EE–63–88; IA–140–86; REG–209785–95] technology; and (e) estimates of capital guidance relating to the requirement or start-up costs and costs of operation, Proposed Collection; Comment that any deduction or credit with maintenance, and purchase of services Request for Regulation Project respect to business travel, to provide information. entertainment, and gift expenses be AGENCY: Internal Revenue Service (IRS), substantiated with adequate records in Approved: April 1, 2003. Treasury. accordance with Code section 274(d). Glenn P. Kirkland, ACTION: Notice and request for The regulation also provides guidance IRS Reports Clearance Officer. comments. on the taxation of fringe benefits and [FR Doc. 03–8595 Filed 4–8–03; 8:45 am] clarifies the types of records that are BILLING CODE 4830–01–P SUMMARY: The Department of the generally necessary to substantiate any Treasury, as part of its continuing effort deduction or credit for listed property. to reduce paperwork and respondent REG–209785–95—This regulation DEPARTMENT OF THE TREASURY burden, invites the general public and provides that taxpayers who deduct, or other Federal agencies to take this reimburse employees for, business Internal Revenue Service opportunity to comment on proposed expenses for travel, entertainment, gifts, Request for Nominations to the and/or continuing information or listed property are required to Electronic Tax Administration collections, as required by the maintain certain records, including Advisory Committee Paperwork Reduction Act of 1995, receipts, for expenses of $75 or more. Public Law 104–13 (44 U.S.C. Current Actions: There are no changes AGENCY: Internal Revenue Service (IRS). 3506(c)(2)(A)). Currently, the IRS is to these existing regulations. ACTION: Notice. soliciting comments concerning existing Type of Review: Extension of a regulations, EE–63–88 (Final and currently approved collection. SUMMARY: The Electronic Tax temporary regulations) Taxation of Affected Public: Individuals or Administration Advisory Committee Fringe Benefits and Exclusions From households, business or other for-profit (ETAAC), was established to provide Gross Income for Certain Fringe organizations, not-for profits continued input into the development

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and implementation of the Internal conferred upon the Secretary of the $6.35 per barrel-of-oil equivalent of Revenue Service (IRS) strategy for Treasury by section 7802 of the Internal qualified fuels. electronic tax administration. The Revenue Code and delegated to the Reference Price: The reference price ETAAC provides an organized public Commissioner of the Internal Revenue. for calendar year 2002 is $22.51. forum for discussion of electronic tax The ETAAC will research, analyze, Because this reference price does not administration issues in support of the consider, and make recommendations exceed $23.50 multiplied by the overriding goal that paperless filing on a wide range of electronic tax inflation adjustment factor, the phaseout should be the preferred and most administration issues and will provide of credit provided for in section 29(b)(1) convenient method of filing tax and input into the development of the does not occur for any qualified fuels information returns. ETAAC members strategic plan for electronic tax sold during calendar year 2002. covey the public’s perception of IRS administration. FOR FURTHER INFORMATION CONTACT: For electronic tax administration activities, Nominations should describe and questions about how the inflation offer constructive observations about document the proposed member’s adjustment factor is calculated— current or proposed policies, programs, qualifications for membership to the Thomas A. Thompson, N:ADC:R:R:SMB, and procedures, and suggest Committee. Equal opportunity practices Internal Revenue Service, 1111 improvements. This document seeks will be followed in all appointments to Constitution Avenue, NW., Washington, nominations of individuals to be the Committee. To ensure that the DC 20224, Telephone Number (202) considered for selection as Committee recommendations of the Committee 874–0585 (not a toll-free number). members. have taken in the account the needs of For all other questions about the The Director, Electronic Tax the diverse groups served by the credit or the reference price—Jaime Administration (ETA) will assure that Department, membership will include, Park, CC:PSI:7, Internal Revenue the size and organizational to the extent practicable, individuals, Service, 1111 Constitution Avenue, representation of the ETAAC obtains with demonstrated ability to represent NW., Washington, DC 20224, Telephone balanced membership and includes minorities, women, and persons with Number (202) 622–3120 (not a toll-free representatives from various groups disabilities. number). including: (1) Tax practitioners and Dated: April 1, 2003. preparers, (2) transmitters of electronic Dated: March 31, 2003. returns, (3) tax software developers, (4) Terence H. Lutes, Heather Maloy, large and small businesses, (5) Director, Electronic Tax Administration. Associate Chief Counsel (Passthroughs and employers and payroll service [FR Doc. 03–8679 Filed 4–8–03; 8:45 am] Special Industries). providers, (6) individual taxpayers, (7) BILLING CODE 4830–01–P [FR Doc. 03–8680 Filed 4–8–03; 8:45 am] financial industry (payers, payment BILLING CODE 4830–01–P options and best practices), (8) system integrators (technology providers), (9) DEPARTMENT OF THE TREASURY academic (marketing, sales or technical DEPARTMENT OF THE TREASURY Internal Revenue Service perspectives), (10) trusts and estates, Internal Revenue Service (11) tax exempt organizations, and (12) Publication of Inflation Adjustment state and local governments. We are Factor, Nonconventional Source Fuel Open Meeting of the Small Business/ soliciting nominations from professional Credit, and Reference Price for Self Employed—Schedule C Non-Filers and public interest groups, IRS officials, Calendar Year 2002 Committee of the Taxpayer Advocacy the Department of Treasury, and Panel Congress. Members will be limited to AGENCY: Internal Revenue Service (IRS), serving one two-year term on the Treasury. ACTION: Notice. ETAAC to ensure that new perspectives ACTION: Notice. and ideas are generated by the members. SUMMARY: An open meeting of the Small All travel expenses within government SUMMARY: Publication of the inflation Business/Self Employed—Schedule C guidelines will be reimbursed. adjustment factor, nonconventional Non-Filers Committee of the Taxpayer DATES: Written nominations must be source fuel credit, and reference price Advocacy Panel will be conducted in received on or before May 1, 2003. for calendar year 2002 as required by Washington DC. ADDRESSES: Nominations should be sent section 29 of the Internal Revenue Code DATES: The meeting will be held to Kim Logan, W:E:S, C4–158, 5000 (26 U.S.C. section 29). The inflation Saturday, May 3, 2003 and Sunday, May Ellin Road, Lanham, Maryland 20706. adjustment factor, nonconventional 4, 2003. Application forms can be obtained from source fuel credit, and reference price FOR FURTHER INFORMATION CONTACT: Kim Logan, who can be reached on are used in determining the tax credit Mary O’Brien at 1–888–912–1227, or (202) 283–1947. allowable on the sale of fuel from 206 220–6096. nonconventional sources under section FOR FURTHER INFORMATION CONTACT: Kim SUPPLEMENTARY INFORMATION: Notice is 29 during calendar year 2002. Logan, (202) 283–1947. hereby given pursuant to section SUPPLEMENTARY INFORMATION: The DATES: The 2002 inflation adjustment 10(a)(2) of the Federal Advisory ETAAC will provide continued input factor, nonconventional source fuel Committee Act, 5 U.S.C. App. (1988) into the development and credit, and reference price apply to that an open meeting of the Small implementation of the IRS strategy for qualified fuels sold during calendar year Business/Self Employed—Schedule C electronic tax administration. The 2002. Non-Filers Committee of the Taxpayer ETAAC members will convey the SUPPLEMENTARY INFORMATION: Advocacy Panel will be held Saturday, public’s observations about current or Inflation Adjustment Factor: The May 3, 2003 from 3 p.m. EST to 5 p.m. proposed policies, programs, and inflation adjustment factor for calendar EST and on Sunday May 4, 2003 from procedures, and suggest improvements. year 2002 is 2.1169. 8 a.m. EST to 4 p.m. EST at the St. This activity is based on the authority Credit: The nonconventional source Gregory Hotel located at 2033 M Street, to administer the Internal Revenue laws fuel credit for calendar year 2002 is NW., Washington, DC. The public is

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invited to make oral comments on 98174. Due to limited space, notification Note: Last minute changes to the agenda Sunday May 4, 2003. Individual of intent to participate must be made are possible and could prevent effective comments will be limited to 5 minutes. with Mary O’Brien. Ms O’Brien can be advance notice. If you would like to have the TAP reached at 1–888–912–1227 or 206– Dated: April 1, 2003. consider a written statement, please call 220–6096. Deryle J. Temple, 1–888–912–1227 or 206–220–6096, or The agenda will include the following: Director, Taxpayer Advocacy Panel. write to Mary O’Brien, TAP Office, 915 Various IRS issues. [FR Doc. 03–8592 Filed 4–8–03; 8:45 am] 2nd Avenue, MS W–406, Seattle, WA BILLING CODE 4830–01–P

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Corrections Federal Register Vol. 68, No. 68

Wednesday, April 9, 2003

This section of the FEDERAL REGISTER DEPARTMENT OF THE INTERIOR April 1, 2003 make the following contains editorial corrections of previously corrections: published Presidential, Rule, Proposed Rule, Fish and Wildlife Service 1. On page 15864, in the table, in the and Notice documents. These corrections are second column heading, ‘‘Experimental prepared by the Office of the Federal 50 CFR Part 17 Populations Special Rules 50 CFR Register. Agency prepared corrections are 17.40(n):’’ should read ‘‘Experimental issued as signed documents and appear in RIN 1018–AF20 the appropriate document categories Populations Special Rules 50 CFR elsewhere in the issue. Endangered and Threatened Wildlife 17.84(i):’’. and Plants; Final Rule to Reclassify 2. On page 15875, in the third and Remove the Gray Wolf from the column, in the first paragraph, in the List of Endangered and Threatened 11th line, ‘‘paragraph (n)’’ should read Wildlife in Portions of the ‘‘paragraph (o)’’. Conterminous United States; [FR Doc. C3–7018 Filed 4–8–03; 8:45 am] Establishment of Two Special BILLING CODE 1505–01–D Regulations for Threatened Gray Wolves Correction In rule document 03–7018 beginning on page 15804 in the issue of Tuesday,

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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 the Kauai Cave Wolf Spider and Kauai Cave Amphipod; Final Rule

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DEPARTMENT OF THE INTERIOR Hawaii (Stearns 1985). Kauai is the in this family are characterized by a oldest of the main islands, with most of distinctive eye pattern, including two Fish and Wildlife Service its land mass being formed between 3.6 particularly large eyes located within and 5.6 million years ago (MYA) from the middle row of eight eyes (Foelix 50 CFR Part 17 a single, large shield volcano, now 1982). While wolf spiders are typically RIN 1018–AH01 represented by the Alakai Plateau and visual predators, the most conspicuous adjacent ridges. Younger, secondary physical character of the Kauai cave Endangered and Threatened Wildlife eruptions occurred over the eastern spider is its complete lack of eyes. This and Plants; Designation of Critical portion of the island as recently as the character is unique among wolf spiders Habitat for the Kauai Cave Wolf Spider Pleistocene era (approximately 0.6 and, in part, provides justification for and Kauai Cave Amphipod MYA). Due to the age of the island, the the recognition of a separate genus for terrain is heavily eroded, with steep this taxon (Gertsch 1973). A few species AGENCY: Fish and Wildlife Service, water-carved valleys and gulches of wolf spider have reduced eyes, Interior. characterizing the slopes of the Alakai including another cave-adapted species ACTION: Final rule. Plateau and other isolated ridges. The on the island of Hawaii, but only in the Alakai Plateau is one of the wettest Kauai cave wolf spider are the eyes SUMMARY: We, the U.S. Fish and places on earth, receiving an average of entirely absent. Adults of the Kauai cave Wildlife Service (Service), designate 1.3 meters (m) (444 inches (in)) of rain wolf spider are about 12.7 to 19.0 critical habitat for the Kauai cave wolf annually (Juvik and Juvik 1998). Rain is millimeters (mm) (0.5 to 0.75 in) in total spider (Adelocosa anops) and the Kauai delivered to the island by prevailing body length with a reddish-brown cave amphipod (Spelaeorchestia trade winds which come from the carapace, pale to silvery abdomen, and koloana) pursuant to the Endangered northeast. Southern and southwestern beige to pale orange legs. The hind Species Act of 1973, as amended (Act). portions of the island lie in the rain margin of each chelicera (biting jaw) The critical habitat designation consists shadow of the Alakai Plateau, ridges, or bears three large teeth, two situated of 14 units whose boundaries other uplands, and receive relatively basally, and the third at the outer end encompass an area of approximately 110 little rain (NOAA 1990–1999). of the chelicera. The tibiae (the fifth hectares (ha)(272 acres (ac)) on the The Koloa District lies in the segment of the leg) of the two front pairs island of Kauai, Hawaii. This critical southeast corner of Kauai and includes of legs have four pairs of ventral spines, habitat designation requires the Service the town of Koloa and the community and the tarsi (ultimate segments) and to consult under section 7 of the Act and resort area of Poipu. The area is dry metatarsi (penultimate segments) of all with regard to actions carried out, to mesic (moderate rainfall), receiving legs bear unusually long, silky, and funded, or authorized by a Federal an average of 107 to 223 centimeters shiny trichobothria (sensory hairs) agency. Section 4 of the Act requires us (cm) (42 to 88 in) of rain annually. (Gertsch 1973). to consider economic and other relevant Although the Koloa District includes Dr. Frank Howarth, of the Bishop impacts when specifying any particular upland areas such as ridge lines derived Museum, first discovered the Kauai cave area as critical habitat. We solicited data from the Alakai Plateau and Haupu wolf spider in Koloa in 1971, and it was and comments from the public on all ridge, most human-occupied areas lie formally described by Willis Gertsch of aspects of the proposed rule, including between sea level and about 183 m (600 the Bishop Museum (Gertsch 1973). The data on economic and other impacts of feet (ft)) in elevation. Kauai cave wolf spider is a predator, the designation. The Koloa area is composed of the and although blind, can detect the DATES: This rule becomes effective on youngest rock on Kauai, the Koloa presence of potential food items through May 9, 2003. Volcanics (MacDonald et al. 1960; chemo-tactile sensory organs and Langenheim and Clague 1987), with actively stalks its prey (Howarth 1983a). ADDRESSES: Comments and materials flows dating from between 0.6 and 1.4 Although predation has not been received, as well as supporting million years. Younger, consolidated observed in the field, the spider documentation, used in the preparation marine deposits and lithified sand probably feeds on the Kauai cave of this final rule will be available for dunes lie on top of some coastal amphipod, other cave-inhabiting public inspection, by appointment, portions of the older Koloa Volcanics. arthropods, and alien species of during normal business hours at U.S. The great age and subsequent arthropods that enter the cave system. Fish and Wildlife Service, Pacific weathering that has occurred on Kauai Compared to most wolf spiders, the Islands Office, 300 Ala Moana Blvd., has resulted in most lava tubes having reproductive capacity of the Kauai cave Room 3–122, Box 50088, Honolulu, HI been collapsed or filled with sediments wolf spider is extremely low, with only 96850–0001. (MacDonald et al. 1960; Howarth 1973; 15 to 30 eggs produced in each egg sac FOR FURTHER INFORMATION CONTACT: Paul Berger et al. 1981; Howarth 1987b), (Wells et al. 1983; Howarth 1991). Henson, Field Supervisor, Pacific relative to younger islands (e.g., Hawaii) Newly hatched spiderlings are Islands Office, at the above address where lava tubes are common features unusually large for wolf spiders, and are (telephone: 808/541–3441; facsimile: (Howarth 1983a). It is only in portions carried on the back of the female for 808/541–3470). of the Koloa District, with its younger, only a few days (Howarth 1991; SUPPLEMENTARY INFORMATION: cave-bearing rock, relative lack of Howarth and Mull 1992). Other species Background developed soils, and minimal rainfall of wolf spider may have in excess of 100 and subsequent sedimentation, that offspring per clutch and the newly The Hawaiian archipelago consists of caves are known to be relatively hatched spiderlings are relatively small eight main islands and the numerous common features on Kauai (Howarth (Foelix 1982; Howarth 1991; Howarth shoals and atolls of the northwestern 1981). and Mull 1992). Hawaiian Islands. The islands were formed sequentially by basaltic lava that Kauai Cave Wolf Spider Kauai Cave Amphipod emerged from a hot spot in the earth’s The Kauai cave wolf spider The Kauai cave amphipod crust located near the current (Adelocosa anops) is a member of the (Spelaeorchestia koloana) was southeastern coast of the island of wolf spider family (Lycosidae). Spiders discovered in some of the same caves as

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the Kauai cave wolf spider in 1971 decline. The third zone is referred to as and mesocaverns in limestone caves can (Bousfield and Howarth 1976). Because the ‘‘transition zone.’’ The transition form or be destroyed at almost anytime of the unusual attributes of a highly zone lacks light penetrance from the in the life of the cave, depending on the reduced pincher-like condition of the entrance, but other outside factors still chemical characteristics of the rock and first gnathopod (thoracic appendage) of greatly influence the cave habitat (e.g., normal geologic processes. Limestone the amphipod, and the second ample air movement and daily caves often become larger over time as gnathopod being mitten-like in both temperature fluctuations). All of the acidic waters from the surface dissolve sexes, this taxon is placed in its own above described zones (entrance, away the calcium carbonate bedrock. unique genus (Spelaeorchestia) within twilight, and transition) are typically Since water flow enlarges and creates the family Talitridae (Bousfield and influenced by surface conditions, daily caves in limestone by solution, Howarth 1976). This species is also cycles of warming and cooling, surface subterranean voids do not fill through distinctive in its lack of eye facets and humidity, and a fair degree of air erosion. If any do, the water quickly pigmentation, and extremely elongate, exchange occurring between these zones finds a different path and enlarges a spiny, post-cephalic appendages. Adult and surface habitats over relatively short new void. Limestone caves grow deeper cave amphipods are 7 to 10 mm (0.25 periods of time (daily). The fourth cave as the water table sinks and the surface to 0.4 in) in length with a slender, zone, the ‘‘dark zone,’’ typically exhibits over the caves dissolves away. laterally compressed body and a hyaline a sharp climatological change from the Limestone caves improve with age (nearly transparent) cuticle, giving it a three previously described zones. The because, although individual voids and shiny, translucent appearance. The dark zone largely lacks daily air passages may be short-lived, limestone second pair of antenna are slender and exchange with the surface and the three caves continuously reform so that elongate, with the flagellum (slender previously described zones. The habitat can remain suitable for very long outer part of the antenna) only slightly relatively constant conditions time spans. Caves derived from lava longer than the peduncle (narrow stalk encountered in the dark zone are often tube systems are fundamentally attaching to the body). Peraeopods the result of a narrowing cave passage different from limestone in that basalt is (abdominal walking legs) are very or low ceiling(s) that serve as physical not as readily soluble. Hence, lava tube elongate, with slender, attenuated barriers that restrict air exchange with passages and mesocaverns do not claws. All pleopods (swimming legs) are other cave zones, or may be due to an typically dissolve away and become reduced, with branches vestigial or up-slope orientation into a dead-end larger (formed), but are subject to filling lacking. Uropods (tail-like appendages) passage that traps warm, moist air. with sediments (destroyed). 1 and 2 have well-developed pre- While the dark zone may undergo The tendency for Hawaiian basalt to peduncles, and brood plates in the drastic changes in temperature and shrink and crack upon cooling results in mature female are vestigial or entirely relative humidity, this more often is younger lava flows having an absent (Bousfield and Howarth 1976). associated with seasonal rather than abundance of mesocaverns throughout The Kauai cave amphipod is a diurnal changes in air temperature. As their structure that may serve as habitat detritivore and has been observed a result of this, dark zones are or as corridors between habitats. feeding on the roots of Pithecellobium seasonally stable in their micro-climatic However, the cave-building process dulce (Manila tamarind) and Ficus sp. conditions, remaining warm and humid typically stops some time after cave and (fig), rotting roots, sticks, branches, and during warm seasons. The final crack formation, and is replaced by the cave-filling processes as weathering and other plant material washed into, or recognized cave zone is that of the otherwise carried into, the caves, as well sedimentation begin filling in ‘‘stagnant’’ zone (Howarth and Stone as the fecal material of other arthropods. mesocaverns and passages. On younger 1990). This zone lies deeper than the In large cave passages, most individuals islands, the abundance of mesocaverns dark zone, receiving significantly less are found in association with roots or may allow cave animals to move among air exchange. As a consequence, the rotting plant debris. When disturbed, and between larger, adjacent lava tubes composition of gasses within this last this cave amphipod typically moves (Berger et al. 1981; Howarth 1991). zone is often largely controlled by the slowly away rather than jumping like However, because these smaller voids decomposition of organic matter and other amphipods. Nothing is known of become filled with erosional sediment maintains high concentrations of carbon the reproductive biology of this in older flows like the Koloa Volcanics, dioxide and low concentrations of amphipod, but the vestigial brood plates and as a result of surface disturbance of the female suggest they give birth to oxygen. While considered inhospitable (Mueller-Dombois and Howarth 1981; a small number of large offspring by human standards, field observations Adam Asquith, Service, in litt., 1994a), (Poulson and White 1969; Bousfield and have indicated that obligate cave- it is less likely that the Kauai cave Howarth 1976). dwelling species are highly tolerant of animals can readily move among these conditions and many may, in fact, separate lava tubes or other cave Cave Habitat thrive in the stagnant air zone of caves systems. Cave habitats have a high degree of (Howarth and Stone 1990). Cave ecosystems are typically zonation which plays a major role in the Cave habitats almost always contain regarded as being food limited, and in distribution of cave-dwelling organisms. small voids, cracks, and passages most caves, the resident food-web Howarth and Stone (1990) recognize (mesocaverns) that cannot be accessed communities require food input which five distinct zones, not all of which are by researchers (Howarth 1983b), but is derived from surface systems based always present within any one cave. remain readily accessible (or preferred) upon a photo-autotrophic (i.e., The first zone, the ‘‘entrance zone,’’ by small troglobites (obligate cave- photosynthesizing plants) food base typically receives large amounts of solar dwelling animals). Although such voids (Culver 1986). Nutrients may enter radiation and is often vegetated with and cracks can occur in any zone and caves via subterranean streams or other surface plants. Within the second zone, possess characteristics of each of the surface runoff; as guano from bats, birds, the ‘‘twilight zone,’’ ambient light levels five zones, they frequently represent rodents, or other cave visitors or decrease as one moves away from the areas of reduced air flow and residents; or from plant roots that entrance and photosynthesizing plants consequently are most similar to the penetrate the cave (Culver 1986). Of that may be present in the entrance dark and stagnant air zones. Passages these methods, roots from surface plants

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are the primary means by which and Howarth 1978). However, on a inappropriate or damaging for Hawaiian caves receive nutrient input subsequent survey, the floor of a small, amphipod foraging. The Kauai cave wolf (Howarth 1973). Protection and dead end passage was saturated with 40 spider can be found in caves where the restoration of surface plant communities liters (10 gallons) of water, and 24 hours cave amphipod does not occur, but is, therefore, an extremely important later amphipods had moved into this other nonnative arthropods (e.g., consideration for cave conservation in area, presumably from the surrounding cockroaches, wood lice, small spiders) Hawaii, as it is elsewhere (Culver et al. mesocaverns (Howarth 1983a, 1983b). can be used as food for this generalist 2000). Factors or activities that impact The foraging activities of both the Kauai predator. or modify surface vegetation over caves cave wolf spider and the Kauai cave Prior to the publication of the (e.g., fire, replacement of native or other amphipod are restricted to dark, moist proposed rule to designate critical perennial vegetation with grasses or areas of large caverns and mesocaverns, habitat for the Kauai cave wolf spider some nonnative plants) can damage or and it is possible that the majority of (67 FR 14671, March 27, 2002), the destroy the underlying cave community. their time is spent within such spaces. spider had been observed in only five Both Howarth (1983a) and Huppop caves in the Koloa area since its Adaptations of Troglobitic Animals (1985) have postulated that troglobites discovery in 1971. Through mapping of As discussed in the species may be adapted to cope with low levels one of the caves, the Service considers descriptions of the Kauai cave wolf of oxygen and/or elevated two of the caves originally believed to spider and cave amphipod, troglobites concentrations of carbon dioxide, be separate to actually be one system typically possess specialized anatomical similar to conditions that would be with two entrances. Since 1996, Service characters that represent adaptations to encountered in the stagnant air zone of biologists have conducted annual life in the cave environment. Such caves. This ability has been surveys of the caves, and starting in anatomical adaptations include enlarged substantiated from observations in 1998, we have conducted biannual and/or elongate tactile-sensory known stagnant air zones (Howarth and monitoring visits to three of the known appendages (e.g., legs or other Stone 1990), as well as under controlled occupied caves. Observations recorded appendages, antennae), and the lack of, laboratory experiments. Hadley et al. in these visits include a total count of or reduced, pigmentation and/or eyes (1981) conducted experiments with animals within each cave, potential (Barr 1968). Less obvious adaptations Hawaiian wolf spiders, both troglobites threats to the listed cave organisms or are also present in the physiology of (Lycosa howarthi) and a related surface- their habitat, and the cave’s condition troglobites and this has the potential to dwelling species (Lycosa sp.). These (e.g., human disturbance, presence of restrict their distribution within various researchers found the surface-dwelling standing water). The following cave zones (Huppop 1985). Laboratory spider had a higher metabolic rate, information is based on these studies with Hawaiian crickets requiring 2.5 times more oxygen than its monitoring visits. (Caconemobius spp.) were conducted cave-dwelling relative. The reduced In two of the four known occupied that compared the abilities of closely need for oxygen would better allow caves, wolf spiders have been seen on related surface and cave-dwelling forms these spiders to survive in stagnant air only three occasions, but have been to cope with desiccation (Ahearn and cave zones. Given the ability of at least more often observed in two other caves. Howarth 1982). Surface-dwelling some troglobites to cope with reduced Of the two more frequently occupied species exhibited considerably lower oxygen and elevated carbon dioxide, as caves, in only one of these wolf spiders evaporation/desiccation rates than did well as their ability to inhabit have been encountered during every the troglobitic species, and in one case, inaccessible mesocaverns, it is assured monitoring visit with 14 to 28 the surface species became dehydrated that many troglobites will be able to individuals observed (USFWS data from at half the rate of its cave-inhabiting reside in areas not readily surveyed by January 18, 1996 to November 20, 2002). relative. This low desiccation threshold biologists. Hence, cave habitats will The second cave contained a smaller largely confines these troglobites to the extend well beyond those areas number of wolf spiders when they were high-humidity environment of the accessible by researchers (Howarth found there (one to four per monitoring deeper portions of caves, the dark and 1983a). visit). Since April 2000, no wolf spiders stagnant air zones. While such tests have been observed in this cave. The have not been conducted on the Kauai Species Distribution and Abundance decline of wolf spiders in this cave has cave species, a logical assumption is The Kauai cave wolf spider and Kauai been matched with a corresponding that they have similar humidity cave amphipod are generally restricted increase in the number of resident tolerances, and this has been supported to cave dark and stagnant air zones, or brown violin spiders, an alien, web- by field studies and observations other subterranean habitats such as building species that likely preys upon conducted in the Kauai caves (see cracks, voids, and other mesocaverns both the Kauai cave wolf spider and below). Similar adaptations in other containing microclimate conditions amphipod (A. Asquith, in litt. 1994b; troglobitic faunas (Vandel 1965; Barr similar to those zones. However, both David Hopper, Service, in litt. 1999). 1968; Huppop 1985) support the the cave wolf spider and amphipod may Although these data are not conclusive, universality of these traits in troglobitic be found in sub-optimal cave habitats the declining numbers of the Kauai cave animals. (e.g., cave transition zone) when wolf spider and their increased absence Given the great vulnerability of conditions are appropriate (e.g., in the second of the regularly occupied troglobites to desiccation, adjacent elevated humidity during periods of caves warrants concern with regard to mesocavern habitats will contain increased rainfall). All of the caves population persistence. appropriate microclimate conditions where the cave amphipod has been Since the publication of the proposed and provide habitat or serve as refugia located contain penetrating plant roots rule, more surveys have been conducted for troglobites when conditions in the and/or other decomposing plant and the spider has been verified to main cave passages become drier or material, which serves as a food source occur in two additional caves (Tom otherwise less accommodating. For for this detritivore. Plant material upon Shigemoto, Vice President, Alexander example, during a previous survey of which the amphipods feed need not be and Baldwin, pers. comm., 2002; one cave of the Koloa area, the Kauai from native plants, although nonnative Gordon Smith, Service, in litt. 2002), cave amphipod was not observed (Miura toxic or indigestible plants may be one of which was previously unknown

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and the other was known only to be loss of naturally occurring mesocavern island of Hawaii (Howarth and Moore occupied by amphipods. Therefore, the habitats and corridors has likely been 1983). This animal can live and spider has verified occurrences in six accelerated by development or other reproduce in caves and presumably feed caves. land uses that often require clearing of on any invertebrates, such as the Kauai The Kauai cave amphipod has been vegetation, blasting, and filling of cave wolf spider and the Kauai cave recorded from six caves in the Koloa trenches and construction sites. These amphipod. The impact on cave fauna is area but was only regularly encountered activities, as well as modern agricultural not known at this time (Howarth and in only three of these caves. In one of practices, exacerbate the rates of Moore 1983). If portions of the habitat these three caves, where the amphipod sediment mobilization (Kirch 1982; are more or less isolated and protected, was found with the wolf spider, their Cuddihy and Stone 1990), resulting in the chances are greater that any one numbers have ranged from 8 to 67 the filling of caves and mesocaverns threat would not affect all occupied during the biannual monitoring visits. (Howarth 1973; Mueller-Dombois and caves at the same time and animals that In another regularly occupied cave, Howarth 1981; Burney et al. 2001). survive may eventually re-colonize their amphipod numbers have increased Because distinct species can evolve in former habitat. This situation would steadily from 10 to 20 individuals per adjacent lava tubes even when cave also apply for other surface visit in pre-1998 counts to over 300 animals can move extensively through disturbances, such as oil spills, individuals during a visit in November mesocaverns (Hoch and Howarth 1993), pollution, and pesticide application. 2000 (Service, unpub. data). it is reasonable to consider the separate Human impacts in the Koloa caves, In the three caves less frequently localities of these animals as different and resulting impacts on the Kauai cave occupied by the amphipod, the lack of populations, even though intervening wolf spider and Kauai cave amphipod, observations of the species is probably areas of potential habitat cannot be are another concern. Caves are due to several factors. In one of these surveyed. Thus, we have currently frequently sought out by curiosity caves, relative humidity is often below verified a total of six spider populations seekers, and over-use of caves occurs 100 percent, which is a suboptimal and seven amphipod populations that readily due to their fragile nature condition for troglobites. Amphipods are distributed throughout the Koloa (Howarth 1982; Culver 1986). In have been found in this cave when district as follows: the Koloa Caves #1, addition, both natural and cultural humidity conditions are optimal, such #2, the newly discovered spider cave, features (e.g., human burials and as after heavy rains which saturate the and adjacent areas west of Waikomo associated artifacts) of caves are often soil and increase the relative humidity Stream are considered to harbor three damaged or destroyed by collectors or in the dark zone. In a second cave, populations of the spider and two vandals (Howarth 1982; N. McMahon, amphipods appear to be resident but populations of the amphipod; the Hawaii Dept. Historic Preservation, were only observed during two visits seaward Kiahuna Caves #267 and #276 pers. comm., 2001). Unauthorized that were conducted soon after the cave likely harbor two populations of the visitation and vandalism is such an had been exposed by heavy machinery, spider and one of the amphipod; the issue in caves that the Cave Resources and prior to the cave being re-closed for Kiahuna Cave #210 harbors a separate Protection Act (16 U.S.C. 4301 et seq.; road construction (A. Asquith, in litt. population each of the spider and 102 Stat. 4546) was passed with the 1999). The last of these three caves has amphipod; the Mahaulepu Cave harbors main intent of protecting cave- been visited infrequently and a separate population each of the cave associated natural and cultural amphipods have been observed during amphipod and the spider (Service, resources. Unauthorized entry and some, but not all, visits (Bousfield and unpublished data, 1998–1999; G. Smith vandalism of the Koloa caves has been Howarth 1976; D. Hopper, in litt. 1998a; in litt. 2002); a small cave near the St. documented (D. Hopper, in litt., 1998b, D. Hopper, in litt., 2000a). Raphael church harbors a population of 2000a), and public interest in visiting Since the publication of the proposed the cave amphipod; and a small cave caves is reflected in the publication of rule, the Service was notified of a near the Koloa bypass road harbors a the location of two of these caves in a seventh cave where the amphipod’s cave amphipod population. recent tourist guide (Doughty and occurrence was previously recorded Friedman 1998). (Bousfield and Howarth 1976). No Threats Human visitation to caves, even when additional information has been Small populations are also not intentionally destructive, often provided on this particular cave nor do demographically vulnerable to results in severe impacts to the resident we know the current status of the cave. extinction caused by random troglobites or other cave inhabitants. For Therefore, the amphipod has been fluctuations in population size and sex example, nicotine is a potent insecticide known from seven caves. ratio and to catastrophes such as that is easily introduced into the cave Despite the data obtained in our hurricanes (Soule 1983; Gilpin and environment through cigarette smoke or biannual monitoring counts, the Soule 1986). In addition, the low discarded cigarette butts. Given the quantities of animals reported do not reproductive potential of both cave confined space and poor air circulation represent sound population estimates. species (less than five percent of their in caves supporting suitable troglobite The methods needed to conduct non- surface relatives) means that they habitat, the effects of cigarette smoke are damaging, mark-recapture studies for require more time and space to recover far more pronounced in caves (Howarth accurate estimates of population size from a disturbance than would similar 1982; Howarth and Stone 1993). The have not been developed for these animals living on the surface (F. impacts of cigarette smoke are not animals, and no attempt to conduct Howarth, in litt. 2001). restricted to the main cavern; the smoke such studies have been undertaken. One of the major threats facing the will also impact mesocavern habitats, Cave systems may be separated by Kauai cave wolf spider and the Kauai where its effects cannot be seen. various physical barriers such as cave amphipod is the introduction of Although less toxic than cigarette subterranean streams, or areas with invasive alien species (F. Howarth, in smoke, wood fire smoke may be equally developed soils that have filled in the litt. 2001). For example, an alien damaging since far more smoke is mesocavern passages or habitats of these terrestrial nemertine worm produced and detrital food reserves may old caves (Mueller-Dombois and (Argonemertes dendyi) from Australia be burned. The use of cigarettes, as well Howarth 1981). The degradation and was discovered in the 1980s on the as fire activity, have been documented

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in the Koloa caves (D. Hopper, in litt., endangered species and the Kauai cave habitat for the Kauai cave wolf spider 1998b, 2000a). amphipod as threatened (43 FR 26084). and Kauai cave amphipod was not The narrow confines of most caves That proposal was withdrawn on prudent. Our concern was that often result in focusing human travel September 2, 1980 (45 FR 58171) as a publication of precise maps and and associated impacts to a small area, result of a provision in the 1978 descriptions of critical habitat in the and increase the likelihood of troglobite Amendments to the Endangered Species Federal Register could increase human mortality from unintentional trampling Act of 1973 that required withdrawal of visitation to these highly sensitive cave and the destruction or disturbance of all pending proposals that were not habitats, which could lead to incidents food resources (e.g., roots, detrital made final within 2 years of the of vandalism, destruction of habitat, and matter). In addition, human use of caves proposal or within one year after unintentional cases of take. Also, we frequently results in the importation of passage of the Amendments, which ever believed that critical habitat designation garbage, which encourages the invasion period was longer. An initial would not provide any additional of caves by potential competitors and comprehensive Notice of Review for benefit to these species beyond that predators such as cockroaches (F. invertebrate animals was published on provided through listing as endangered. Howarth, Bishop Museum, pers. comm., May 22, 1984 (49 FR 21664), in which However, in the final listing rule, we 1994; A. Asquith, in litt., 1994a). the Kauai cave wolf spider and Kauai determined that critical habitat The restricted area in which the Koloa cave amphipod were treated as category designation was prudent as we did not cave animals occur is rapidly 2 candidates for Federal listing. find specific evidence of taking, undergoing development (KBGM Peat Category 2 taxa were those for which vandalism, collection, or trade of these Marwick 1993). The shallow cave conclusive data on biological species or any other similarly situated habitat has been, and continues to be, vulnerability and threats were not species. Also, we found that there may degraded or destroyed through surface currently available to support proposed also be some educational or alterations such as the removal of rules to list the species as threatened or informational benefit to designating perennial vegetation, soil fill, grading, endangered. critical habitat. Therefore, we found that paving, collapsing and filling of caves, We published an updated Notice of the benefits of designating critical diversion of waste water into Review for animals on January 6, 1989 habitat for these two species outweighed subterranean voids and spaces, and (54 FR 554). In this notice, the Kauai the benefits of not designating critical other activities associated with cave wolf spider and Kauai cave habitat. development and agriculture. amphipod were treated as category 1 On June 2, 2000, we were ordered by The Kauai cave wolf spider and Kauai candidates for Federal listing. Category the U.S. District Court for the District of cave amphipod are also increasingly at 1 taxa were those for which we had on Hawaii (in Center for Biological risk from predation and competition for file substantial information on Diversity v. Babbitt and Clark, Civ. No. space, water, and nutrients by biological vulnerability and threats to 99–00603 (D. Haw.)) to publish the final introduced, nonnative animals support preparation of listing proposals. critical habitat designation for both cave (Howarth 1985, pers. comm., 1994; A. However, in the Notice of Review for all animals by February 1, 2002. The Asquith, in litt., 1994a, b; D. Hopper, in animal taxa published on November 21, plaintiffs and the Service entered into a litt., 1999), biological and chemical pest 1991 (56 FR 58804), the two Kauai cave consent decree in a separate action control activities associated with arthropods were listed as category 2 agreeing to jointly seek an extension of residential and golf course development candidates. In the November 15, 1994, this deadline (Center for Biological (Hawaii Office of State Planning 1992); Notice of Review for all animal taxa (59 Diversity v. Norton, Civ. No. 01–2063 and an increased likelihood of FR 58982), the two Kauai cave (D.D.C. October 2, 2001)). extinction from naturally occurring arthropods were again elevated to On February 14, 2001, we contacted events due to the small number of category 1 candidates. Upon publication landowners on the island of Kauai, remaining individuals, populations, and of the February 28, 1996, Notice of notifying them of our requirement to their limited distribution. Review (61 FR 7596), we ceased using designate critical habitat for the Kauai Due to the small number of known candidate category designations and cave wolf spider and Kauai cave caves inhabited by these animals, we included the two cave arthropods as amphipod. We included a copy of a fact remain concerned that these threats may candidate species. Candidate species are sheet describing the two species and be exacerbated by the publication of the those for which we have on file their habitat, and a map showing the exact locations of individual caves. sufficient information on biological presumed historic and current range Since publication of the proposed vulnerability and threats to support (based on occupied habitat and the listing rule for these animals in 1997 (62 proposals to list the species as distribution of similar geology and soils) FR 64340), we have found evidence of threatened or endangered. The two cave of one or both of these species. increased entry and vandalism in these arthropods were included as candidate On January 30, 2002, the U.S. District caves (D. Hopper, in litt. 1998b, 2000b). species in the September 19, 1997 (62 Court in Hawaii approved a joint While direct and intentional threats to FR 49398), Notice of Review. stipulation to modify the terms of the these species from human take and A proposed rule to list these two June 2 order to extend the deadline to collection are not documented, the species as endangered was published on August 10, 2002. Subsequently, the sensitive nature of these animals and December 5, 1997 (62 FR 64340), and Service determined that an additional their habitat to increased human the final rule to list them was published extension of time was needed to presence makes increased human on January 14, 2000 (65 FR 2348). Since complete this designation process. On awareness of these caves a potential that time, we have conducted August 21, 2002, the U.S. District Court direct threat to the Kauai cave wolf conservation efforts for the Kauai cave in Hawaii approved another joint spider and Kauai cave amphipod. wolf spider and Kauai cave amphipod stipulation extending the date for the through voluntary partnerships with final rule designating critical habitat for Previous Federal Action two private landowners in the Koloa both cave animals to March 31, 2003. On June 16, 1978, we published in the area. The proposed rule published March Federal Register a proposal to list the In the proposed listing rule, we 27, 2002, proposed to designate four Kauai cave wolf spider as an indicated that designation of critical critical habitat units which collectively

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amounted to approximately 1,697 ha due to workload or other constraints or size of appropriate habitat is likely to (4,193 ac) (67 FR 14671). The public simply did not respond. sustain the cave animals and is expected comment period closed on May 28, The four scientific review responses to provide the best type of habitat. In 2002. On November 15, 2002, we were generally positive and in support determining adequacy of size of critical announced the availability of the draft of the proposed designation on the basis habitat, we have reviewed the best economic analysis and reopened the of its technical merits. Reviewers scientific and commercial data available comment period until December 16, generally recognized the limitations on in making our final designation. Units 2002 (67 FR 69177). the extent of specific knowledge 1b and 3 have not been included in the regarding the cave species in terms of designation. A considerable amount of Summary of Comments and population sizes, population dynamics, new information was provided to the Recommendations and distribution of occupied habitat. Service regarding site-specific In the proposed rule published on However, a lack of knowledge is not conditions on lands that had previously March 27, 2002 (67 FR 14671), we unusual for troglobitic organisms that never been surveyed or had been requested that all interested parties only occur in areas where humans incompletely surveyed. This includes submit written comments on the rarely go and that may primarily inhabit new information regarding occupied proposal. We also contacted all mesocavern areas where humans are and unoccupied caves, and technical appropriate Federal, State, and local unable to enter at all. The reviewers information (e.g., drilling logs that agencies, scientific organizations, and were in agreement that the primary include cross-section/stratigraphy data other interested parties and invited constituent elements were identified of geologic core samples) regarding them to comment. We received no adequately. Three of the reviewers subsurface geology of surrounding areas. requests for a public hearing. commented that additional information, The total number of known occupied We received individually written particularly detailed mapping, was caves and caves with appropriate letters from 43 parties, including five needed regarding human activities that habitat has increased substantially, and designated peer reviewers. may have eliminated one or more some of the intervening areas between Approximately 417 additional letters primary constituent elements from the caves has been shown not to contain the were submitted as part of a mailing landscape, information which primary constituent elements required campaign that supported designation. presumably would allow some areas to to support adequate habitat for the Of the 43 commenters who were not be eliminated from consideration as species. The new information has part of the mailing campaign, 16 critical habitat. Comments received resulted in a reformulation of the supported the proposed designation, 26 from the peer reviewers are summarized number of caves (and amount of above- were opposed, and 1 expressed neither in the following section and were ground area) considered to be essential support nor opposition. Of the 26 considered in developing the final rule. to the conservation of the species. The commenters who opposed the proposal, new information has reduced, but not 17 commenters specifically opposed Issue 1: Biological Justification and Methodology eliminated, the need for establishing designation of critical habitat on lands critical habitat boundaries on the basis they own or manage, and requested that (1) Comment: One scientific reviewer of the underlying geology of a given these areas be excluded from critical commented that it was difficult to unit. Critical habitat boundaries have habitat designation. justify inclusion of Units 2 and 3 on been modified to encompass surface We reviewed all comments received geological grounds alone, considering areas above known caves and mesocave- for substantive issues and new that evidence of historical or current bearing geologic features. These information regarding critical habitat for occupation by the organisms was modifications and the rationale for the both cave animals. Similar comments lacking. However, another reviewer changes are described in detail in the were grouped into general issues and stated that the proposed designation on section ‘‘Summary of Changes from the are addressed in the following the basis of geology alone was indeed Proposed Rule.’’ summary. adequate, and pointed out the ‘‘plastic’’ (2) Comment: One scientific reviewer nature of the underlaying calcareous Peer Review stressed the importance of substrates of Unit 2 and 3 over geologic environmental requirements of obligate In accordance with our policy time. Another scientific reviewer did cave-dwelling species, noting that published on July 1, 1994 (59 FR not feel that enough information was appropriate conditions (100 percent 34270), we solicited, in writing, the available to evaluate the adequacy of the relative humidity) only occurs in larger, review of the proposed critical habitat large size of Unit 1a without more longer caves, and may be most designation from nine independent detailed maps of geology, cave commonly found in mesocavern spaces. experts affiliated with academic and locations, and past, present and future Mesocavern areas may be limited in research organizations or natural land use. Another commenter noted that Koloa because of the geologic age of the resource conservation agencies. We also the proposed designation does not lava flow series; however, where they put in a request to Sustainable provide enough connectivity between occur they are important. Ecosystems Institute. All of the units, and recommended that there Our Response: As the reviewer points individuals contacted are recognized should be continuity between Unit 1a out, a variety of data supports the leaders in the field of cave ecology and and Unit 1b and to accomplish this, all existence and occupation of mesocavern conservation, as demonstrated by a of Makahuena Point should be habitats. This includes the typically record of published peer reviewed designated. low, but variable, numbers of organisms results of past and current research in Our Response: Unit 2 has not been observed in cave surveys. Survey events this field. Four parties responded with included in the designation on geology that detect few individuals probably written reviews of the proposal, one alone. This unit lies only a short occur during conditions of reduced provided a letter citing his inability to distance from a known occupied site humidity whereby the organisms retreat participate due to the lack of and as mentioned by another reviewer into mesocaverns with suitable applicability to his state agency was likely connected at an earlier time. environmental conditions. Also, two position, and the remaining four parties Information provided during the known occupied caves that tend to either verbally declined to participate comment period shows that the large exhibit drier conditions have been

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surveyed numerous times with the wolf more reasonable approach would be to use patterns, have resulted in spider observed on only a few designate critical habitat around known modification of the boundaries of the occasions. This indicates that, despite population centers and known likely proposed critical habitat. These careful searches by trained observers, habitat. modified critical habitat boundaries are the organisms are able to move into Our Response: The proposed critical described in detail in the section areas of suitable habitat that are too habitat designation was developed using ‘‘Summary of Changes from the small for humans to enter. We note that the best technical information available Proposed Rule.’’ the ‘‘type locality’’ from where the to the Service at the time of preparation (6) Comment: One scientific reviewer initial specimens of the cave amphipod of the proposed rule. The majority of the noted that the concern regarding were collected for scientific description lands where these species are found is diseases and alien species invasions is (the ‘‘sand chamber’’ of the Mahaulepu privately owned, which severely limits warranted, but the reference to Bacillus Sinkhole cave) appears to have a drier and may prohibit the ability of the thuringinensis (Bt) toxin as a potential environmental regime than during Service to survey caves and analyze threat is weak. initial biological surveys there in the landforms exhibiting potential habitat in Our Response: The threat of profound 1970s. No amphipods have been seen in short timeframes. Through ongoing ecological disturbance, including that chamber in recent years, likely due outreach efforts and development of a species extinctions, due directly or to this alteration of conditions. The series of cooperative conservation indirectly to alien species introduction Service agrees with the scientific programs with certain landowners, a is a common theme in the conservation reviewer that maintenance (and possibly reasonable amount of scientific of virtually every native Hawaiian enhancement) of suitable environmental information had accumulated over time, ecosystem. In addition to calling conditions of caves and voids is an and it was this available information attention to this immediate threat, our important consideration in conservation that was used in the development of the use of the Bt example was to of the caves species. proposed critical habitat designation. In demonstrate: (1) That some disease and (3) Comment: Two scientific response to Service requests for alien species threats are intentional reviewers recommended that the size of additional relevant information, several ‘‘biocontrol’’ introductions that could the critical habitat areas should be parties, including landowners and land have unintended effects upon native sufficient to protect adequate managers, undertook surveys of their ecosystems (this has occurred and population numbers such that, in the lands to obtain and share new continues to occur in Hawaii and event of local extirpations of the species information with the Service. This elsewhere); and (2) the rationale behind due to natural disaster or disease, information has increased the level of protecting multiple, isolated portions of recolonization of these areas can occur. specific knowledge about the species in suitable occupied and unoccupied Our Response: We agree, and we terms of distribution of occupied and habitat in the event of a catastrophic consider the issue of population unoccupied caves, locations of event, such as a pesticide spill or other dynamics central to the concept of additional areas with geologic features surface disturbance. conservation of the species. The cave likely to contain habitat, and areas that, (7) Comment: Based upon existing species have characteristics that make because of natural processes or human- and new information, there appear to be estimates of population sizes and caused changes, do not contain the four distinct populations of the cave dispersal capabilities difficult. In primary constituent elements adequate invertebrates. They occur at: Kukuiula, addition, the species have naturally low for support of the species. In particular, Kiahuna, Bypass Road/Civil Defense reproductive potential. These the number of individual caves where caves, and the sinkhole area. Based characteristics highlight the importance one or both of the species are found has upon other cave conservation efforts of ensuring that the populations do not increased from six to nine. This has (including a proposed critical habitat slip towards extinction due to greatly influenced the technical analysis designation for cave organisms in Texas demographic stochasticity (natural leading to the ultimate conclusion of by the Service), recovery goals can be disaster, disease, invasive species which areas are necessary for the achieved by protecting in perpetuity interactions) or suffer from the effects of conservation of the species. As three discrete populations of organisms. loss of genetic variability (inbreeding, described elsewhere, the identification Considering the cooperative genetic drift). We feel that our revised of additional known occupied habitat conservation efforts of landowners at critical habitat boundaries, based upon has resulted in refocusing critical Kukuiula, Kiuahuna (for caves), and at the incorporation of new information habitat boundaries in consideration of the sinkhole (presently for archeological regarding the number and locations of our better understanding of the cave preservation), the requisite three faunal known occupied sites and sites highly species populations, their distribution, areas for each species has been likely to be occupied, encompass a wide the effects of habitat fragmentation, identified, which is sufficient for distribution across the Koloa Basin, protection of isolated populations, and species protection. which will provide adequate refugia potential for retaining areas of habitat Our Response: While the cave animals despite the possibility that unforeseen connectivity. in Hawaii share some similarities with events may eliminate the entire (5) Comment: A sand mining cave animals in Texas, it is population of a single cave or cave operation is located in Unit 2. inappropriate to assume recovery complex. These modified critical habitat Significant portions of this unit have standards would be the same just boundaries are described in detail in the been disturbed and should be excluded because both occur in caves. Caves in section ‘‘Summary of Changes from the from designation. Texas and caves in Hawaii are formed Proposed Rule.’’ Our Response: The sand mining through different processes, have (4) Comment: The proposed critical operation is not included in the different food resources, and face habitat designation is based upon little designation of critical habitat. As different specific threats. Recovery specific data regarding the distribution described above, new information standards need to be determined by of the cave invertebrates and the caves regarding the geology and modification evaluating individual species and their they inhabit; this has resulted in an of potential habitat due to human threats. Although there is no final overly broad ‘‘blanket’’ approach to the activities such as the sand-pit operation, recovery plan for either the Kauai cave proposed critical habitat boundaries. A agriculture, and past and current land amphipod or the Kauai cave wolf

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spider, we do not at this time believe Hawaii’s State Water Code (HRS Ch. extended until December 16, 2002, to the three areas mentioned above 174C); and implications for water allow interested and affected parties the adequately provide protection against quality standards under Hawaii opportunity to review the DEA in catastrophic events. Therefore, a Administrative Rules Ch. 11–54, Water conjunction with the proposed critical designation limited to these three areas Quality Standards. habitat rule. would not adequately provide for the Our Response: Possible costs resulting The Service determines whether conservation of either species. from interplay of the Federal critical habitat designation is prudent Endangered Species Act and Hawaii Issue 2: Legal and Regulatory Issues according to regulations found at 50 State laws were discussed in sections 3 CFR 424.12(a). In accordance with these (8) Comment: The Service has and 4 of the November 2002 Draft regulations, critical habitat designation misinterpreted the intent of the Act with Economic Analysis of Proposed Critical is not prudent only when one or both exclusion of areas under 3(5)(A)(i) of the Habitat Designation for the Kauai Cave of the following two situations exist: (1) Act. If a specific area of cave Wolf Spider and the Kauai Cave The species is threatened by taking or invertebrate habitat is recognized to be Amphipod Island of Kauai, Hawaii other human activity, and identification critical to the extent that management is (DEA) under direct and indirect costs as of critical habitat can be expected to already taking place, the notion that modified by the Addendum. They increase the degree of such threat to the such management renders designation consider the economic impacts of species; or, (2) such designation would unnecessary does not make sense. In section 7 consultations related to critical not be beneficial to the species. The fact, designation of these areas would habitat even if they are attributable co- economic analysis is generally seem more urgent. extensively to the listing status of the conducted after critical habitat has been Our Response: While we have not species. In addition, they examine any proposed in a given area, as set forth in excluded any areas from this rule indirect costs of critical habitat regulations found at 50 CFR 424.19. If because they are already sufficiently designation, such as where critical we find that economic or other impacts managed, we still believe this habitat triggers the applicability of a outweigh the benefit of designating interpretation of the definition is State or local statute. The addendum to critical habitat in a given area, that area reasonable. Pursuant to the definition of the DEA also fully considered this issue. will be excluded under section 4(b)(2) of critical habitat in section 3 of the Act, (11) Comment: The proposal violates the Act. the primary constituent elements as the ‘‘commerce clause’’ because the (13) Comment: Existing protections found in any area so designated must spider and the amphipod are not related are adequate to conserve the species. also require ‘‘special management to interstate commerce. considerations or protections.’’ Our Response: The Federal The additional action of designating (9) Comment: Areas that are merely government has the authority under the critical habitat is unnecessary. capable of supporting the species are Commerce Clause of the U.S. Our Response: We are required to proposed for designation, as opposed to Constitution to protect these species, for designate critical habitat to the areas that are essential for the the reasons given in Judge Wald’s maximum extent prudent. Designation conservation of the species. opinion and Judge Henderson’s is not prudent only when the species is Our Response: Based on new concurring opinion in Nat’l Ass’n of threatened by taking or other human information received during the public Home Builders v. Babbitt, 130 F.3d 1041 activity and designation would increase comment period we have refined the (D.C. Cir. 1997), cert. denied, 1185 S. Ct. that threat or designation would not be proposed designation. All areas 2340 (1998). See also Gibbs v. Babbitt, beneficial. designated as critical habitat are deemed No.99–1218 (4th Cir. 2000). The Home (14) Comment: Because the DEA essential to the conservation of the Builders case involved a challenge to indicates that there will be substantial species. Areas designated provide for application of ESA prohibitions to adverse impacts on small landowners, areas known to be occupied by the protect the listed Delhi Sands flower- such as KG Kauai Development, LLC, animals or provide for protection loving fly. As with the species at issue there should be a Regulatory Flexibility against catastrophic events by here, the Delhi Sands flower-loving fly Analysis performed on the designation contributing to a wide distribution is endemic to only one State. Judge of critical habitat. throughout the Koloa Basin. Wald held that application of the ESA Our Response: Small landowners and (10) Comment: The Service failed to to this fly was a proper exercise of other entities potentially impacted by consider the cascading impacts resulting Commerce Clause power because it the designation of critical habitat for the from the State-led regulatory activities prevented loss of biodiversity and Kauai cave arthropods were identified that must, by law, be implemented as a destructive interstate competition. and discussed in section 5 of the result of critical habitat designation. (12) Comment: The Service must take November 2002 DEA and February 2003 These include the broad interpretation into consideration the completed addendum. As summarized in the of ‘‘take’’ under Hawaii’s Endangered economic analysis prior to designation addendum, there are no small entities, Species Act (HRS Ch. 195D); mandatory of critical habitat. Currently, the as defined under the Regulatory ‘‘downzoning’’ of private lands under proposed critical habitat boundaries are Flexibility Act (as amended by the Hawaii’s Land Use Law (HRS Ch. 205); proposed prior to the completion of the Small Business Regulatory Enforcement unreasonably frequent requirements for economic analysis. This runs counter to Fairness Act) (RFA/SBREFA) that may full environmental impact statements the requirement for determination of be impacted by implementation of the for minor actions under Hawaii’s prudency under the ESA. section 7 provisions of the Act for the Environmental Impact Statement Law Our Response: We did not designate cave animals. Therefore, we concluded (HRS Ch. 343); unreasonable permit critical habitat before conducting an that the designation of critical habitat delays for county-regulated Special economic analysis. The DEA was for the cave species is not likely to Management Area permits under published and made available for significantly impact a substantial Hawaii’s Coastal Zone Management Law review on November 15, 2002 (67 FR number of small entities. The final (HRS Ch. 205A); uncertainty of 69177). The comment period on the determination is much smaller than that interpretation of the reach and extent of proposed rule to designate critical which was initially proposed, and the State regulatory authority under habitat for these two species was addendum discusses impacts to

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landowners but also concludes that no Our Response: The Service provided violation; the action must actually kill small entities will be impacted. a total of 90 days of public comment or injure the species. Take of a listed (15) Comment: In the context of following publication of the proposed wildlife species may occur inside or Hawaii law, the designation constitutes critical habitat rule and draft economic outside of critical habitat if it causes taking as it results in the loss of value analysis. The Service was unable to death or injury to the species. to the property. accomodate further requests for an (19) Comment: A cost benefit and Our Response: To a property owner, extension of the public comment period economic analysis pursuant to the designation of critical habitat due to the court-ordered deadline Executive Order 12866 is required becomes important when viewed in the mandating completion of this final because the DEA indicates that there context of section 7 of the Act, which critical habitat rule. However, the may be an annual effect on the economy requires all Federal agencies to ensure, Service would be happy to receive and of over $100 million per year. in consultation with the Service, that review any new information, and if Our Response: While the DEA any action that these aagencies warranted will consider this estimated potential costs greater than authorize, fund, or carry out is not likely information in possible future revisions $100 million, this was based on the to result in the destruction or adverse of this rule (see 16 U.S.C. 1533(a)(3)(B)). proposed critical habitat acreage of modification of designated critical In addition, interested parties may approximately 1,697 ha (4,193 ac). The habitat. If, after consultation, our petition to revise a critical habitat final economic analysis evaluated the biological opinion concludes that a designation based on new information revised acreage of 110 ha (272 ac) and proposed action is likely to result in the (16 U.S.C. 1533(b)(3)(D). concluded that costs did not exceed destruction or adverse modification of (17) Comment: The DEA lists $100 million. critical habitat, we are required to economic impacts; however, there is no (20) Comment: Portions of Unit 2 and suggest reasonable and prudent indication that the Service has the eastern portion of Unit 1 are alternatives to the action that would identified appropriate critical habitat planned but not permitted for major avoid the destruction or adverse boundaries or modified the critical resort development; the southern modification of the critical habitat. If we habitat boundaries in consideration of portion of Unit 1 is planned but not cannot suggest acceptable reasonable these economic impacts. permitted for subdivision into over 50 and prudent alternatives, the agency (or Our Response: We considered the ‘‘upscale’’ houselots; a portion of Unit 3 the applicant) may apply for an economic impacts that were analyzed is planned and permitted for a future exemption, in accordance with section and summarized in the DEA and final limestone and basalt quarry; the area 7(e) through (p) of the Act. addendum, and no critical habitat units The mere promulgation of a in the proposed rule were excluded or surrounding the old Koloa sugar mill regulation, like the enactment of a modified due to economic impacts (see will be expanded into an industrial area; statute, does not take private property section ‘‘Analysis of Impacts Under several water wells are located in Unit unless the regulation on its face denies Section 4(b)(2)’’). However, several areas 1 and additional water wells are the property owners all economically were excluded or modified because they expected. This development will create beneficial or productive use of their lacked primary constituent elements, or residential and employment land (Agins v. City of Tiburon, 447 U.S. were more degraded than other essential opportunities for over a thousand island 255, 260–263 (1980); Hodel v. Virginia habitat areas, and therefore were not residents. In view of their economic Surface Mining and Reclamation Ass’n, considered essential to the conservation importance, these areas should be 452 U.S. 264, 195 (1981); Lucas v. South of the species (see ‘‘Summary of excluded from consideration. Carolina Coastal Council, 505 U.S. Changes from the Proposed Rule’’ Our Response: As indicated in the 1003, 1014 (1992)). The designation of section). ‘‘Summary of Changes from the critical habitat alone does not deny (18) Comment: The incremental Proposed Rule’’ section, large portions anyone economically viable use of their impact of designating critical habitat, of the proposed critical habitat Units 1 property. The Act does not over and above the original listing, is and 2 have been excluded in the final automatically restrict all uses of critical that it creates a presumption that designation of critical habitat due to habitat; it only imposes restrictions modification of the land will ‘‘take’’ biological, rather than economic, under section 7(a)(2) of the Act on members of the species. The Service is considerations. Unit 3 has been Federal agency actions that may result obliged to calculate the impact of completely removed from critical in destruction or adverse modification deterring landowners’ use of their lands. habitat designation for biological of designated critical habitat. If any economic use of the land is reasons, as well. Furthermore, as discussed above, if a prevented, the Service is liable to (21) Comment: The Eric A. Knudsen biological opinion concludes that a compensate the private landowner for Trust is seeking to subdivide or proposed action is likely to result in losses. otherwise participate in the destruction or modification of critical Our Response: Under federal law, development of at least 741 lots/resorts habitat, we are required to suggest while critical habitat may provide units on 202 acres of trust-controlled reasonable and prudent alternatives. information to help a landowner lands [Tax Map Keys (TMKs): (4) 2–8– (16) Comment: Several commenters identify where take through habitat 015:082; (4) 2–8–013:01; (4) 2–8–014:01, requested an extension of the public modification may occur, the take 02, 03, 04, 19, 30 {in part}; (4) 2–8– comment period to enable more time for prohibition applies whether or not 09:09; (4) 2–8–011:01, 18, 20, 35]. preparing and submitting comments to critical habitat has actually been Because critical habitat designation may the Service. This request was made in designated. The Act defines ‘‘take’’ to impact these plans, the trust asks that part to enable the completion of include ‘‘harm.’’ 16 U.S.C. 1532 (19). the lands be excluded from designation. scientific surveys of certain lands ‘‘Harm is defined by regulation to Certain Eric A. Knudsen Trust lands within proposed critical habitat and to include significant habitat modification may not be suitable as critical habitat allow more time to develop voluntary or degradation where it actually kills or because of prior urban and resort conservation agreements on some of injures wildlife. 50 CFR 17.3. However, development [TMKs: (4) 2–8–01421, these lands that might obviate the need just because an action occurs in critical 26], and the trust asks that these lands for critical habitat. habitat would not demonstrate a take be excluded from designation.

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Our Response: With the revised Our Response: The resort/residential revised based on new information from critical habitat boundaries, only two development planned in Units 2 and 4 the Service, resulting in a reduction in critical habitat units fall within the and the residential development these estimates. For the larger projects TMKs listed. Both units (unit 6 and 8) planned in Unit 10 is consistent with affected by the intended designation, fall within TMK (4) 2–8–014:01. All the 2000 Kaua’i General Plan (General the revised figures represent a small other proposed areas were excluded Plan), current State land use districts, percentage of the total development from final critical habitat designation for and current county zoning. The resort/ costs and profits. biological reasons, as described in the residential development planned in (26) Comment: Direct costs are ‘‘Summary of Changes from the Units 6 and 8 requires minor summed with indirect costs to derive a Proposed Rule’’ section. modifications in the State land use total impact estimate. Yet, direct costs (22) Comment: The DEA districts and county zoning, but it is are associated with development put in acknowledges that the proposed critical consistent with the General Plan. All of place, while indirect costs are habitat boundaries will change with the this development is likely to occur associated with development foregone. final designation; however, the process within the proposed critical habitat The benefits of the former should be by which final boundary determinations between 2003 and 2020 if no offset against the costs of the latter, not are made is not clear. The lack of consideration is given to the indirect summed. Also, direct cost estimates do definitive boundaries under impacts of the intended designation. not include multiplier effects of these consideration makes it impossible for The commercial development expenditures, yet indirect costs do anyone commenting on the economic planned in Unit 10 is not in the General include multiplier effects. So we see the impacts to be precise. Plan and is not included in the State full impact of development foregone, Our Response: The proposed critical Urban District. As mentioned in the but only partial impacts of development habitat units were described and Indirect Costs section of the Addendum, actually implemented. Our Response: Since the DEA was depicted in the proposed rule (67 FR this development may not occur for published, the direct costs and indirect 14671), as were the methods and criteria reasons unrelated to the intended costs have been modified to reflect new used in determining the proposed areas. designation. However, since the General information gained since the We have described our methods and Plan is updated every 10 years or so, the commercial development may be added publication of the DEA and based on the criteria for designating final critical to the General Plan before 2020. The intended critical habitat designation. habitat boundaries within this final rule. property values used in the Addendum Direct costs include expenditures, on (23) Comment: The DEA fails to reflect the fact that the development is section 7 consultations and project distinguish potential costs due to not fully entitled, but that the land has modifications for assumed designation from costs due to listing the development potential. development. Indirect costs include cave animals as endangered. Nowhere Barring a hurricane or a major additional expenditures as well as lost does the draft provide any analysis of recession that disrupts tourism and income benefits associated with lost what impacts, if any, designating critical resort/residential property sales, it is development. The direct and indirect habitat for the cave animals would expected that, without the intended costs are no longer summed; also, the impose above and beyond those designation, all or nearly all of the direct costs are not benefits—they do associated with the species’ listing. planned development in the intended not offset indirect costs. Because the draft economic analysis designation would occur by 2020. Indirect costs that reflect the does not distinguish between these (25) Comment: Most development can multiplier effects of lost development costs, it cannot exclude proposed proceed with reasonable project are no longer included in the analysis critical habitat from a final critical modifications that will reduce or because they would be generated in any habitat designation pursuant to section eliminate damage to the cave case; to the extent that development is 4(b)(2). ecosystems, therefore the economic displaced from the intended designation Our Response: The court, as per New impacts are greatly overstated. The due to the implementation of section 7 Mexico Cattlegrowers Association v. economic analysis indicates that $1.9 for the cave animals, that development U.S. Fish and Wildlife Service, requires billion of development may occur in the would still be expected to occur but in us to look at co-extensive costs region and that project modifications another location of Koloa outside the (consideration of the impact of all would cost $61.6 million. This critical habitat. This is now expected section 7 effects that could be a result represents 3.2 percent of the cost of because of the smaller area intended for of the designation, even if they are the development, not an unreasonable designation. same as those that arise from the amount considering these species and (27) Comment: Total impact is based listing). This is the approach the their habitats are highly endangered. on a guess that between 25 percent (low) economic analysis and addendum take. Another commenter stated that direct and 50 percent (high) of all proposed The Service recognizes that if an area is costs of consultation must actually be development will not proceed due to excluded under 4(b)(2), not all of the divided by the profits from the sales, habitat restrictions. [Sec 4.c] Also, Table economic impacts may be avoided. rentals, jobs, etc., produced by all the VI–3 indicates that the ‘‘Low units of resort, residential, commercial Projection’’ actually assumes a 33 Issue 3: Economic Issues and light industrial development which percent loss, not 25 percent as claimed (24) Comment: Elements of the are likely to be built. Figured per in the text (pg. VI–57). Thus, the ‘‘Low’’ economic analysis are based upon saleable and rental unit and calculated impact should be 25 percent lower than unsubstantiated and speculative over time, the cost is not likely to be as reported, or about $330 million in Net development scenarios that greatly staggering as portrayed. Present Value terms. exceed foreseeable, sustainable growth Our Response: The estimates of direct Our Response: Due to the Service’s for the Koloa/Po’ipu region as set by and indirect costs in the Draft Economic intended modifications to the critical existing county zoning and State land Analysis of Proposed Critical Habitat habitat designation, the cost estimates use designations, as well as other Deisgnation for the Kaua’i Cave Wolf presented have been revised. In legally-binding planning guidelines Spider and the Kaua’i Cave Amphipod, particular, the indirect impacts on such as the Kaua’i County General Plan. Island of Kaua’i, Hawai’i (DEA) were remaining parcels are considered on a

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parcel-by-parcel basis whereby the Our Response: As a result of the ‘‘low’’ value represents the low end of change in the likelihood of Service’s intended modifications to the possible worst-case scenario, not the development, if any, associated with the critical habitat, the DEA’s estimates of low end of all likely scenarios. intended designation is identified. The loss of resort/residential development in Our Response: The impact estimates costs associated with these impacts are the Po‘ipu area and reduction in the have been revised in the Addendum to presented in the Indirect Costs section amount of islandwide development no include expected impacts for a number of the Addendum. longer reflect the impacts associated of possible scenarios and the Service’s (28) Comment: The State of Hawaii with the intended designation. As intended modifications to critical Department of Business, Economic discussed in the Indirect Costs section habitat. As such, the high and low Development and Tourism (DBEDT) of the Addendum, even if some of the estimates in Table Add-3 represent the population and tourism growth development planned in critical habitat range of reasonably foreseeable direct projections were used for this study. does not take place, it is assumed that costs associated with section 7 These estimates are higher than the other development projects in the implementation for the cave animals 2000 Kaua‘i’s General Plan projections. Koloa/Po‘ipu area will be able to be and the indirect costs associated with DBEDT’s projections are controversial increased in density or area to satisfy the intended designation. and contested. unmet demand for residential or resort/ (32) Comment: The DEA fails to Our Response: The DBEDT residential development. recognize that the costs to investigate projections are presented in Table II–1 (30) Comment: The costs of public the implications of critical habitat are of the DEA, although both the DBEDT support of residential and tourism sunk costs associated with the and General Plan projections are development is not adequately designation process, not additional costs discussed in Chapter II of the DEA. The identified or calculated. These costs that final designations would impose. Any concerned party investigating the General Plan projections and should be considered avoided costs for proposed designation of critical habitat information from developers are used to reductions in growth. Among the on their lands have already hired their determine the amount of development missing estimates for the taxpayers lawyers and consultants, and incurred that is planned in the intended critical ‘‘growth subsidies’’ are the following: the costs associated with figuring out habitat designation. (1) Public expenditures for more schools or expansion of existing schools, the implications of designation on their While the DBEDT projections are used including teachers, staff and lands. Even were the private in comparisons of lost economic activity administrators; for police, fire, landowners’ lands ultimately excluded to projected island-wide economic ambulance, lifeguard personnel and from the final critical habitat activity in the DEA, neither the DBEDT equipment; solid waste; recycling; designation, the landowners would still projections nor the General Plan governmental administrative services; not recoup those costs; the money has projections are directly used in the etc. Public subsidies of each unit of already been spent. These costs should calculation of updated cost estimates residential and of tourism development not be included in the analysis of future presented in the Addendum. are substantial; (2) Most of these costs, potential costs from designation since (29) Comment: It is erroneous to as well as those for water, sewage, and they have already been incurred and assume hotel and resort development roads (which the study states will not be were incurred regardless of the final displaced at Po‘ipu is not likely to be affected by habitat designation and do designation decision. replaced by equivalent projects require consultations etc.), are increased Our Response: For completeness, elsewhere on Kauai. (V–57). In fact, when development is sprawling rather estimated expenditures by landowners there is island-wide competition for the than contiguous. Development of to investigate the implications of the resort market, and new areas such as Maha‘ulepu and the Sugar Mill area proposed critical habitat were included Kapalawai have received Kauais General would leap beyond current developed in the DEA and Addendum, even if the Plan resort designation. Also, visitor areas; (3) Another avoided cost would funds have already been expended and accommodations on Kauai are be the cost to attain permits for projects are not recoverable. In estimating costs, diversified with significant uncounted and project design costs, etc. To get a distinction is not made between the numbers of people staying in vacation permits needed to develop, Grove Farm designation process and the final rental homes, bed and breakfasts and has previously estimated costs of over designation. camping outside of planned visitor $5 million, higher than numbers in the (33) Comment: Project modification destination areas. According to the study. costs are underestimated, particularly Kauai General Plan analysis, the total Our Response: As discussed in the the cascading effect of project number of resort and residential units Indirect Costs section of the Addendum, realignment with the purpose of already permitted, as opposed to those a reduction in islandwide development avoiding critical habitat. Also, the costs desired, is 5,836. (Appendices, Tables C attributable to the intended designation of avoiding subsurface impacts to sewer and D). If the density allotted to is no longer anticipated. Similarly, it is lines, buried cables, etc., in addition to Kukui‘ula is cut in half, that total assumed there will be no impacts to the roads, is underestimated. number is 4,036. Taking the HIGH Maha‘ulepu development since the Our Response: The project number of baseline development (2,253, areas planned for development are no modification cost estimates take into which includes not permitted units longer in critical habitat. As such, any account a variety of projects, locations, desired by Grove Farm), it appears that avoided public-support costs for and contingencies, and are based on (1) there must be 1,783 permitted units reductions in development are not discussions with the Service and outside of the proposed critical habitat anticipated. construction contractors, and (2) an area. Future growth opportunities in (31) Comment: Table ES–1 appears to examination of the historical record of Koloa, not requiring cave species present both the low and high ends of project modifications regarding the cave mitigation construction, do exist in both the economic impacts estimated, animals. The one historical case of a the resort and residential categories. implying that the low-end value reflects road realignment due to the cave Growth opportunities in the Koloa area the likely least cost that critical habitat animals involved the Koloa Bypass are not foreclosed by habitat designation would impose. In fact, Road. In this case, the realignment was designation. review of the DEA reveals that the minor and was completed quickly at

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relatively low cost. The Service As discussed in the Indirect Costs Federal HCP but is unable to obtain a indicates that if a realignment is too section of the Addendum and in State HCP. costly for a particular project, other responses to other comments, a Our Response: None of the alternatives are possible. These include reduction in islandwide development landowners and developers remaining using post-tension concrete to bridge attributable to the intended designation in the intended designation are caves and mesocaverns, or placing is no longer anticipated. As such, any anticipated to seek an HCP as a result sewer lines and cables above ground. If changes in the public revenues of critical habitat designation. Section 4 none of these options is economically or associated with reduced economic of the Addendum discusses the indirect technically feasible, the Service activity are expected to be minimal. impacts of the intended designation in indicates that a portion of a cave could No disproportionate economic or greater detail. be sealed off and filled in, as long as social impacts on specific ethnic groups (38) Comment: The narrative precautions are taken to minimize the were identified. exclusion of areas underlying currently impact to any cave animals that may be (35) Comment: The DEA developed areas such as buildings and present. The costs associated with these acknowledges that some or all lands driveways (‘‘unmapped holes’’) is too various scenarios are considered in the designated as critical habitat may be vague considering the cryptic nature of project modification cost calculations in redistricted/rezoned at the State or the organisms and their habitats. The the Addendum. county level to preclude further DEA fails to fully consider the economic In situations where development is development, and the actual economic impacts of landowners costs to properly displaced because of critical habitat, the costs of redistricting could be very high demarcate ‘‘unmapped holes’’ in the cascading effect of project realignment ($1.54 billion to $3.1 billion). These process of obtaining necessary permits is taken into account (e.g., a school estimates are mentioned in the text but for development projects. Our Response: The intended critical planned for a location in critical habitat not in the summaries of the economic habitat designation contains few would be relocated to an area planned impacts. Our Response: Due to the Service’s unmapped holes or developed areas. for residential development, thereby intended modifications to critical The costs to landowners to demarcate resulting in a loss of planned housing). habitat, economic impacts on the order these sites is expected to be minimal. (34) Comment: The DEA only of $1.54 billion to $3.1 billion are no (39) Comment: The DEA does not take partially considers the ‘‘indirect longer anticipated. The Indirect Costs into account the loss of income by Jas impacts’’ of critical habitat designation, section of the Addendum considers the W. Glover Ltd., the operators of the and instead focuses on ‘‘direct impacts’’ potential indirect impact of the quarry. The DEA should use a figure of due primarily to consultations under intended designation on each parcel in $31–35/ton for shipping of limestone to section 7 of the Act. Due to precedent the intended designation to determine Kauai, not the $13 to $16 per ton due set by New Mexico Cattle Growers, the an estimate of development impacts to costs of wharfage fees loading and Service must fully consider both types (including any associated with potential unloading costs, trucking, insurance, of impacts, and the DEA must present redistricting, as applicable). and other costs. In addition, the loss of a thorough analysis of these economic (36) Comment: The DEA does not quarry materials will have impacts effects. Another commenter stated that account for investments and other throughout the construction industry on the DEA overemphasizes the direct costs expenditures already made on lands Kauai. Another commenter stated the attributable to critical habitat with the expectation that rezoning and siting of an additional quarry in the area designation, which are relatively minor, redistricting will allow future is no longer necessary because market and ignores or omits many indirect development and hence a return on conditions have changed and products impacts, such as: Impacts to housing investment, nor does it account for the produced by the expanded quarry are supply, especially affordable housing potential lost recapture of investment not needed by the local economy. required by State and local governments yields that may be foregone due to lost Another commenter stated that the as permit conditions associated with development potential for lands that operator of the quarry on Grove Farm development of ‘‘market-priced’’ have successfully been rezoned and lands (Jas W. Glover Ltd.) is a small housing, upscale housing, and resort permitted for development at a very entity, and it is woman-owned and development; impacts to public high cost. Native Hawiian-owned. Because this infrastructure such as schools, parks, Our Response: The Indirect Costs firm is one of only two aggregate and roads, and decreases in public section of the Addendum presents an producers on the island the impacts to revenues as a result of reduced estimate of the loss in property values this economic sector should be economic activity; disproportionate due to the cave animals listing and considered under ‘‘Impacts to Small impacts to specific ethnic groups, and critical habitat designation. The Entities.’’ other social impacts. property values used in the analysis Our Response: The site planned for Our Response: Both direct and reflect the current market value of the the future expansion of the limestone indirect impacts are analyzed in Chapter land, which consists of real returns from quarry is no longer included in the VI and in the Addendum, and both are existing uses and improvements as well intended critical habitat designation, so summarized in Table Add-2. as any anticipated improvements or the associated direct costs, indirect Regarding affordable housing, uses. costs, and impacts to small entities schools, parks and roads, the developers (37) Comment: The DEA fails to attributable to the intended designation are obligated to provide them regardless consider the more restrictive Habitat are zero. of critical habitat. But if they cannot Conservation Plan (HCP) guidelines (40) Comment: The DEA incorrectly build them in critical habitat, then they under the Hawaii Endangered Species lists Kobayashi Group LLC as the owner could be moved elsewhere within a Law (HRS 195D–4, HRS 195D–21) of Kiahuna Golf Course and surrounding project site, displacing market housing which require that the State HCP lands. The golf course (225.063 acres) is or other project components. This permittee show a net benefit to the owned by Kiahuna Golf Club, LLC; the displacement was assumed in analyzing species. The DEA fails to analyze adjacent lands (95.412 acres) are owned the economic impacts of the section 7 impacts due to the circumstance in by KG Kauai Development, LLC. These implementation for the cave animals. which a landowner qualifies for a are distinct entities and not subsidiaries

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of Kobayashi Group LLC, although there of economic benefits due to designation The net present value of the are common elements of ownership of critical habitat. undeveloped land is $456.9 million (at between various individuals. Kiahuna Our Response: See response to the UH lower estimate of $76,146 per Golf Club, LLC, and KG Kau’i comment 42 below. acre). Degradation scenarios combining Development, LLC believe they qualify (42) Comment: The benefits of species urban creep, invasive species, and as small businesses. Because the DEA protection are overstated and human/animal disruption resulting in indicates that there will be substantial speculative. The DEA does not present recharge loss could cost another $3.6 adverse impacts on small landowners the expected circumstances or timeline million annually (at $600 per acre), or such as KG Kaua’i Development, LLC for delisting the species, nor is there a a total of $65 million. That is only a and Kiahuna Golf Club, LLC there quantifiable estimate of the economic start at estimating the ecological benefits should be a Regulatory Flexibility benefits of delisting. In addition, one and savings associated with preserving Analysis performed on the designation commenter states the species this undeveloped land, and we are at of critical habitat. themselves have no economic value; $1.225 billion already. Our Response: The Addendum lists any estimate of economic benefit Our Response: The suggested benefits KG Kaua’i Development, LLC (KGKD) as derived from not fully developing lands analysis would yield inaccurate results the owner of the land that is planned for proposed for critical habitat are for several reasons. First, the proposed the Kiahuna Golf Village Expansion and speculative and unquantifiable. critical habitat for the cave animals as the Kiahuna Golf Course Expansion. No Our Response: This responds to described in the proposed rule covers impacts are anticipated for the comments 41 and 42 above: Even 4,193 acres. Since the publication of the continued operation of the existing though the material presented in the proposed rule, the Service has identified Kiahuna Golf Course by Kiahuna Golf DEA and in the Addendum regarding several areas of the proposed critical Club, LLC. benefits is not as extensive as the habitat that it intends to remove for RFA/SBREFA regulations state that material on costs, this does not result in biological reasons, which would reduce the Small Business Administration overestimated costs and underestimated the critical habitat to 272 acres. Basing (SBA) counts the receipts or employees benefits. The less extensive analysis of the benefits analysis on 6,000 acres of the business whose size is at issue the benefits is due to (1) a lack of would overstate the economic benefits and those of all its affiliates in scientific studies on environmental and attributable to the implementation of determining the business’ size. biological changes that would be section 7 for the cave animals. Businesses are affiliates of each other attributable to the section 7 Second, the commenter uses an when one concern controls or has the implementation for the cave animals, incorrect value of open space. As stated power to control the other, or a third and (2) the lack of existing economic in the University of Hawaii study, a party or parties controls or has the studies on the economic value of these recent survey found that Oahu residents power to control both. The SBA changes. However, the Addendum are willing to pay $0.0023 per acre (0.23 considers factors such as ownership, presents an expanded discussion of cent per acre) for the preservation of management, previous relationships benefits, including the estimated value open agricultural land on O’ahu. The with or ties to another business, and of retaining land in open space due to commenter’s use of $0.23 (23 cents) per contractual relationships, in critical habitat. acre overstates the benefits associated determining whether affiliation exists. The expected circumstances and the with open space by a factor of 100. The Finally, RFA/SBREFA regulations state potential timeline of delisting the cave Benefits section of the Addendum uses that a firm will not be treated as a animals will be presented in the the 0.23 cent per acre figure, corrected separate business concern if a Service’s final recovery plan for the cave for (1) inflation; (2) the income levels on substantial portion of its assets and/or animals. The DEA does discuss the Kauai; and (3) the amount of existing liabilities are the same as those of a reduced costs due to successful open space on Kauai compared to Oahu. predecessor entity. In such a case, the preservation and the existence value of To calculate the value of additional annual receipts and employees of the the cave animals in the Benefits section open space, the corrected figure is then predecessor will be taken into account of Chapter VI; however, these benefits applied to the amount of land that may in determining size (13 CFR part 121). are not quantified given the lack of no longer be developed due to critical KGKD states that it is affiliated with information as described above. habitat. Kobayashi Group LLC through common (43) Comment: Based on 6,000 acres Third, the University of Hawa’i (UH) ownership by certain individuals. In of undeveloped land bounded by Haupu study on the Koolau Range on Oahu addition, KGKD was recently ridge, and using pro rata estimates of focuses on the economic benefits established by the Kobayashi Group LLC ecological values from a University of provided by a mountainous region for the purpose of acquiring the Hawaii study of the value of the Koolau covered by dense forests and many properties surrounding the golf course. Range on Oahu (http:// native Hawaiian plants. The proposed As such, Kobayashi may be considered www2.hawaii.edu/∼uhero/ critical habitat is in a gradually sloping a predecessor entity of KGKD. Due to its workingpaper/HawaiiEnviro and relatively dry area that contains affiliation with Kobayashi Group LLC, Evaluation.pdf Environmental many nonnative plant species. Since the KGKD is not considered separately in Valuation and the Hawaiian Economy, ecosystems of these two areas are vastly the RFA/SBREFA analysis in the by Brooks Kaiser, Nancy Krause, and different, the ecosystem services Addendum. Jim Roumasset), the Koloa/Poipu provided by these areas will also be (41) Comment: The level of effort to viewscape is worth $29 million per year different. As such, the economic document and analyze the potential (at $0.23 per acre per household for valuation of the ecosystem services economic impacts resulting from critical Kauai’s 21,000 households). Over 18 provided by the Koolau Mountains is habitat designation greatly exceeded the years (comparable to FWS estimates), generally not transferrable to the level of effort to document and analyze this sums to $521 million. The annual proposed or intended critical habitat. potential economic benefits due to stream of benefits from the conservation For example, the value of water recharge designation, resulting in an unbalanced district is $10.1 million annually (at in the UH study reflects projected water overestimation of detrimental economic $1,690 per acre), summing to another supply and demand conditions on impacts, and an unfair underestimation $182.5 million on a comparable basis. Oahu—an island which is nine percent

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larger than Kauai but has a population The reduction of development and Our Response: With the intended of more than twelve times that of Kauai. grazing in critical habitat could reduce reduction in critical habitat, it is now Furthermore, neither the proposed nor soil runoff thereby protecting the coastal assumed that any loss in development the intended designation is in an area of marine waters and fisheries off the due to the intended designation will be high rainfall. Also, the UH benefit south shore of Kauai. However, as replaced by development elsewhere in analysis of reducing soil runoff is mentioned in the DEA, this benefit is Koloa (see the Indirect Costs section of unique to three valleys that drain likely to be small because the affected the Addendum). Thus, critical habitat through partially channelized streams in marine ecosystem has already been designation for the cave animals, as urban areas into the manmade Ala Wai altered by over 150 years of sugarcane intended by the Service, is expected to Canal. Since this canal was designed cultivation in the area. Also, Koloa has result in little or no change to future with inadequate flushing from stream or an open coastline that is exposed to surf traffic, emergency services, water ocean currents, it functions as an and strong ocean currents that requirements, etc. unintended settling basin so must be continually flush the near-shore (47) Comment: Portions of Unit 2 and dredged periodically. The proposed environment. Finally, any displaced the eastern portion of Unit 1 are critical habitat drains into a portion of development is likely to occur planned but not permitted for major the ocean that has strong currents and elsewhere in Koloa. Thus, the net resort development; the southern adequate flushing. And unlike the environmental benefit to Kauai is likely portion of Unit 1 is planned but not Koolaus, none of the proposed critical to be small. permitted for subdivision into over 50 habitat contains streams and aquatic Additional environmental benefits, ‘‘upscale’’ houselots; a portion of Unit 3 life, and none of the units are suitable such as the preservation of open space, is planned and permitted for a future for hunting wild pigs. changes to traffic congestion, and the limestone and basalt quarry; the area Finally, the commenter’s summation promotion of native plants, are surrounding the old Koloa sugar mill of benefits to $1.225 billion is flawed discussed in the Benefits section of will be expanded into an industrial area; due to double-counting. For example, Chapter VI in the DEA and in the several water wells are located in Unit the $1,690 per acre figure in the UH Addendum. 1 and additional water wells are study includes the benefits of open (45) Comment: There was no attempt expected. This development will create space. So adding the estimated open to quantify the value of open space residential and employment space benefit of $521 million to the (parks, preserves, even golf courses) opportunities for over a thousand island residents. ecosystem services estimate of $182.5 surrounding real estate. Such increased million double-counts the benefits of Our Response: Most of the property values are acknowledged, but open space. Similarly, the two per-acre development projects and associated there was no attempt to estimate the figures taken from the UH study ($1,690 water well projects mentioned by the corresponding increases in property per acre and $76,146 per acre) are two commenter are no longer in the values. Understanding of this principle different measures of the same intended critical habitat designation. is a large driver in the DMB ecosystem benefits. The first figure Development Company’s decision to Summary of Changes From the refers to the annual stream of benefits, halve the density of their joint project Proposed Rule while the second figure refers to the net with A&B at Kukuiula. present value. Multiplying both of these Based on a review of public figures by 6,000 acres and adding them Our Response: The Indirect Costs comments received on critical habitat, together clearly double-counts the section of the Addendum discusses the we have reevaluated our proposed ecosystem benefits. possibility that the land planned for designations and included several (44) Comment: Assigning an development in certain critical habitat changes to the final designations of economic value to preservation of units will remain open as a result of the critical habitat. No specific information ecosystem functions that may result intended designation. If this land is on habitat conditions or species from the designation of critical habitat managed as a park or preserve, it could occurrence was provided. At the time of (such as groundwater recharge, increase the selling values of the home the publication of the proposed rule, we protection of coastal marine waters and lots that are directly adjacent to critical were aware of only six known cave fisheries, and other ecosystem services) habitat. An estimate of the number of locations where the animals occurred is now an acceptable method of homes or lots adjacent to the critical and did not know the precise locations economic analysis. The dollar value of habitat units, as well as the potential of other caves with suitable habitat. In these services is high. However, this increase in selling values, is discussed addition, in the proposed rule, we analysis was done in a qualitative, for critical habitat Units 2, 6, and 8. acknowledged two theories with regard narrative manner in the draft economic (46) Comment: Development in the to intercave dispersal corridors (67 FR analysis. Why was it not done Koloa/Poipu area is already progressing 14673 and 67 FR 14674). One theory is quantitatively? at unsustainable levels, and future that very limited, if any dispersal was Our Response: Quantitative estimates traffic, emergency services, and possibly occurring between the cave systems, of the economic benefits of the listed water supply are sources of uncertainty. and the other that dispersal corridors ecosystem services provided by critical It is good that the critical habitat needed to be protected if these species habitat are not presented in the DEA or designation places additional are to be conserved. Because of the in the Addendum because studies mechanisms to undertake reasonable limited verified occupied areas and the estimating the change in the ecosystem slow-growth planning for the region. absence of other known suitable cave associated with critical habitat Also, some tourists prefer less locations, we believed it necessary to designation and the value of that change developed areas. The potential loss of include areas in the proposal that would are not available. revenues due to people seeking less provide for intercave dispersal However, such benefits are likely to overbuilt resort area would be corridors. In the absence of more be small. For example, the proposed conjectural, but no more so than the specific data, we proposed those areas critical habitat is near the coast in an assumption that critical habitat that were most likely to contain the area of low rainfall, and thus contributes designation for cave species will reduce primary constituent elements based on little to groundwater recharge. the number of visitors to Kauai. the best available information at the

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time. In our request for peer review and mesocaverns connected to the caves. the caves in close proximity to one public comments on the proposed rule, Areas not identified in Dr. Howarth’s another. A designation such as this we asked for specific information on the survey were excluded from the would leave the species vulnerable to number and/or distribution of both designation. This information also extinction due to a single catastrophic animals and what areas were essential assisted us in refining the amount of event and therefore not provide for the for the conservation of the species. needed habitat surrounding other caves. conservation of the species. As During the comment periods on the (5) We received substantial data from previously discussed in this rule under proposed rule, a significant amount of various parties such as drilling records, ‘‘Adaptations of troglobitic animals,’’ specific information was received on the photographs, archeological surveys, and given the great vulnerability of these presence or absence of primary biological surveys indicating the lack of species to desiccation, adjacent constituent elements, verified occupied primary constituent elements in certain mesocavern habitats that contain cave locations, and other locations of portions of proposed critical habitat. appropriate microclimate conditions suitable caves. No additional These data provided information as to will provide habitat or serve as refugia information was provided on either the the current depths of dirt, clay, and for both animals when conditions in the location or importance of intercave other soils. Soil deposits greater than a main cave passages become drier or dispersal corridors. Although our peer foot deep begin to degrade and fill the otherwise less accommodating. It is review confirmed the importance of meoscaverns and caves necessary for the protecting caves and surrounding cave animals’ survival and indicate a within these mesocaverns where it is mesocaverns for local dispersal, there lack of the primary constituent likely that the majority of their time is was no consensus or scientific clarity elements, or at a minimum the primary spent. Therefore, designating provided on intercave dispersal constituent elements are likely to be surrounding mesocaverns incorporates corridors. severely degraded (Dr. F. Howarth, pers. the area where the majority of the We only designate areas as final comm., 2002). These areas have been animals are likely to occur and provides critical habitat if they contain the removed from the designation. for refugia from fluctuating conditions physical and biological features (6) We received additional in caves which makes them essential to essential to the conservation of the information from Dr. Frank Howarth on the conservation of the species. The species, and if unoccupied, they are areas of higher quality habitat with a remaining areas designated where essential to the conservation of the high likelihood of containing occupied occupancy by either species has not species. In the case of the intercave caves on Grove Farm property and a been verified are essential to the dispersal corridors, we suspect Civil Defense map indicating a large conservation of the species for the connectivity may be important, but we cave previously used as a fall-out following reasons. The areas chosen, are do not know where they are, to what shelter. These areas have been mapped known to contain caves or mesocaverns degree they are used, or how to map and retained in the designation. where the animals are most likely to these corridors to be consistent with the (7) We received information from occur. The designated spatter cones are legal requirements in designating various parties on surveys done on their the type of volcanic formations that critical habitat. Therefore, we have not properties indicating the likelihood of produce rock with mesocaverns and included such areas in the final rule. suitable cave habitat. Areas found to likely produce cave structures as well. Based on a review of the public have a low likelihood of suitability have If animals do no currently occupy these comments received on the proposed been removed from the designation. areas, if dispersal is occurring, it can critical habitat, we have reevaluated our (8) We made revisions to the unit allow for areas for the species to proposed designations and included boundaries based on information disperse into, and if dispersal is not several changes to the final designations supplied by commenters, as well as occurring, it can allow for of critical habitat. These changes information gained from field visits to reintroduction. These areas are deemed include the following: some of the sites, that indicated that the essential to the conservation of the (1) The final designation went from primary constituent elements were not species because they provide for a three proposed units encompassing an present in certain portions of the widely distributed pattern throughout area of approximately 1,697 ha (4,193 proposed unit, that certain changes in the highest quality habitat available in ac) to 14 units encompassing a total of land use had occurred on lands within the Koloa Basin. This wide distribution 110 ha (272 ac). the proposed critical habitat that would will protect the species from extinction (2) We received new information on preclude those areas from supporting from a single catastrophic event and the presence of the Kauai cave wolf the primary constituent elements, or therefore is essential to the conservation spider in two caves in the Koloa region that the areas may not be essential to the of the species. If new and additional conservation of the species in question. and updated their verified occurrence scientific information shows that these This final critical habitat designation from four caves to six caves. areas are not essential, the critical (3) We received information addresses the conservation of the habitat designation can then be revised. indicating we missed a cave from which species by protecting a number of the Kauai cave amphipod was discrete cave systems (i.e., eight caves Intervening areas between identified previously recorded and updated their occupied by one or both species and units of critical habitat may still be verified occurrence from six caves to associated mesocaverns, six caves where important to the recovery of the species seven caves. occupancy status is unknown with although at this time we do not have (4) We received information from a associated mesocaverns, and three areas information to identify them as essential survey conducted by Dr. Frank Howarth containing higher quality habitat likely to the conservation of the species. which identified areas required to to be occupied by one or both species) However, because either animal may be maintain the persistence of both animals that represent a widely distributed present at any given time in these on Alexander and Baldwin property. pattern throughout the highest quality intervening areas with suitable habitat, The information contained numbers of habitat in the Koloa Basin. Designating section 7 consultation requirements to caves discovered and the amount of only the known occupied caves ensure Federal actions are not likely to areas surrounding them to incorporate themselves would only provide jeopardize the species and section 9 sufficient protection and inclusion of extremely small areas with several of prohibitions, which preclude the

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unauthorized taking of listed animals, development that may occur outside the familiar with the Kauai cave animals, may apply. buffer area comprise Unit 4. we do not know whether they are Absent any scientific data on the issue The northern cave which occurs on occupied by either species. However, of intercave dispersal corridors, we the Kiahuna golf course has been gated, given that many of the caves found in applied a basic conservation strategy informational signs have been posted, the same area contain the animals, if all that protects all of the known cave and the area above the cave has been the primary constituent elements are locations and surrounding mesocaverns planted with native vegetation that is present, it is highly likely that the and identified high quality habitat likely to provide food for the Kauai cave animals will be present in these caves. where the animals are most likely to be amphipod. This cave was mapped and Therefore, the area mapped for these found in a pattern that maximizes a 30 m (100 ft) buffer placed around to caves including a 61 m (200 ft) buffer distribution across the basin. This wide capture the mesocaverns surrounding around them to include surrounding distribution of cave systems should the cave. The golf course has been fully mesocaverns and protection from provide for the long term conservation developed, therefore an additional potential development are included in of these two species if they are buffer to protect against additional this designation as Units 6 and 8. Other adequately protected and managed by development is not believed to be archaeological finds indicate an reducing the vulnerability to diseases necessary. The cave located within the extensive irrigation system, and it is and other catastrophic events. golf course and the buffer area comprise likely that the rest of Eric Knudsen We are currently working on a draft Unit 5. Trust property was used as terraced recovery plan for the cave animals Additional information was provided agricultural land that would have been which will identify the need for genetic indicating large soil deposits on the routinely flooded. The use of land in studies to determine the relationships southern end of the property owned by this manner is likely to have caused a Kiahuna Golf Club, LLC and KG Kauai between animals in verified occupied buildup of silt and other deposits that Development LLC. In addition, caves and continued study into ways to would either eliminate any primary archaeological information was determine the importance and location constituent elements or degrade them. provided indicating a large portion of of intercave dispersal corridors. In the These areas have been deemed not the property was once used as fish event that new information is made essential to the conservation of the ponds and terraced agricultural fields available and indicates the necessity, we species and removed from the that were routinely left flooded. The use will consider amending the critical designation. of land in this manner is likely to have Unit 7 comprises an area that has not habitat designation. caused a buildup of silt and other been surveyed recently, but the cave A brief summary of the modifications deposits that would either eliminate any located on the property had a verified made to each unit is given below. primary constituent elements or degrade occurrence of the Kauai cave amphipod. Former Unit 1 Waikomo—subunit 1a them. Therefore, these areas have been The property is owned by the Roman removed from the designation. Catholic Church, and no new This unit has been redesignated into Drilling information obtained near information was provided on it. Since 13 separate units. All of Alexander and areas proposed on the south side of we did not have information on the Baldwin property has been surveyed by Poipu Road near Koloa Landing and exact location of the cave, we viewed Dr. Frank Howarth, the recognized Poipu Beach Park indicate large satellite imagery and designated the area expert on Hawaiian caves. Along with deposits of sand and therefore no where the cave is most likely located. If data that a significant portion of their appropriate primary constituent new information on the exact location of land has been dynamited and therefore elements. It is unlikely that the three the cave is gathered in the future, we highly unlikely to contain the primary small areas proposed south of Poipu will consider it in possible future constituent elements, Dr. Howarth has Road, which likely contain similar revisions of this rule. indicated where the primary cave deposits, contain the primary The Koloa bypass cave which is now habitats are and the surrounding buffer constituent elements. In addition, a park and has a verified occurrence of area (61 m) (200 ft) necessary to drilling information provided just north the Kauai cave amphipod has been maintain the species in this area. Units of Poipu Road, next to Poipu Village retained in the designation as Unit 9. 1, 2, and 3 represent the areas identified Shopping Center indicate a settling This cave is completely surrounded by by Dr. Howarth. All other areas basin where large deposits of silt, clay, previously disturbed areas. The area surveyed either do not contain the and soil have accumulated, indicating a above the cave was planted with plants primary constituent elements or are not lack of primary constituent elements. to provide food for the Kauai cave believed to be necessary to the These areas have been removed from the amphipod and the entrance sealed over conservation of the species because they designation. to prevent human intrusion. This unit were not identified by Dr. Howarth as Information obtained on the area comprises the open field of the park, necessary to maintain the species in the north of the private road above which incorporates the cave and area and have been removed from the Alexander and Baldwin property and mesocaverns surrounding the cave. designation. east of Waikomo Stream indicates that Unit 10 includes the area containing Areas above the Old Railroad Grade far more homes and other structures the cave indicated on the civil defense have been surveyed and the caves found have been built than previously map. The civil defense map does not to contain these animal species have believed. It is unlikely that primary outline the extent of the cave, but gives been retained in the designation. constituent elements will be found in a general location. The entrance to the Service biologists have mapped these this area, and therefore it has been cave has also been sealed making it caves. removed from the designation. difficult to locate its exact location. This The southern cave found in this area Additional information provided by unit also includes the surrounding areas is one of the caves where the spider’s the Eric Knudsen Trust shows two caves containing mesocaverns. In addition, occurrence has been verified. This cave located within their property. These further refinement was made by and a 61 m (200 ft) buffer area to capture caves were identified during an reviewing drilling records provided the surrounding mesocaverns to provide archeological survey. Because the caves during the comment period. These for a protective area from the have not been surveyed by anyone records showed large deposits of clay

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north of Mahaulepu Road, along Former Unit 1 Waikomo—subunit 1b features (I) essential to the conservation Kaluahono Road, and below Waita No new information specific to of the species and (II) that may require Reservoir. These areas are unlikely to proposed Unit 1b was provided during special management considerations or contain the primary constituent the comment period. However, when protection; and, (ii) specific areas elements and have been removed from this was evaluated in light of the outside the geographic area occupied by the designation. information provided on the proposed a species at the time it is listed, upon Site visits by Service biologists and rule, this unit was found to be of lower a determination that such areas are Dr. Frank Howarth were made in the quality habitat due to its small size and essential for the conservation of the remaining areas of proposed Unit 1a. greater isolation from occupied areas, species. ‘‘Conservation,’’ as defined by Units 11 and 12 represent Puu and because of the identification of the Act, means the use of all methods Wanawana and Puu Hunihuni, areas suitable caves and likely higher quality and procedures that are necessary to that are most likely to contain suitable habitat in other areas, this unit was bring an endangered or a threatened cave habitat where animals are likely to deemed not essential to the species to the point at which listing be present. Both are spatter cones which conservation of either species. under the Act is no longer necessary. are volcanic formations that are Critical habitat receives protection comprised of exposed barren rock that Former Unit 2—Haula under section 7 of the Act through the contain mesocaverns, limited soil Additional information was provided prohibition against destruction or deposits, and limited prior disturbance, in and adjacent to Unit 2 in the form of adverse modification of critical habitat and are likely to contain larger voids or survey information indicating a lack of with regard to actions carried out, caves. Information was provided by primary constituent elements in parts of funded, or authorized by a Federal consultants hired by Grove Farm who the unit. Areas less likely to contain the agency. Section 7 also requires were able to further investigate the area appropriate habitat were excluded and conferences on Federal actions that are and have indicated it is the place most the remaining area is included in the likely to result in the destruction or likely to be occupied by either species. designation. This unit lies only a short adverse modification of proposed Since we do not know of an exact cave distance (approximately 350 m (1,100 critical habitat. In our regulations at 50 location, the entire area of barren rock ft)) from Unit 13 which is occupied, and CFR 402.02, we define destruction or has been included in the designation. it was likely once connected to that unit adverse modification as ‘‘* * * the Areas surrounding the barren rock are in the geologic past (Pleistocene Era) by direct or indirect alteration that appreciably diminishes the value of less likely to contain the primary deposits that have since eroded away or critical habitat for both the survival and constituent elements and were deemed have been covered by unconsolidated recovery of a listed species. Such not essential to the conservation of sediments. The large size of appropriate alterations include, but are not limited either species. Puu Hi Reservoir is less habitat in this area is most likely to be to, alterations adversely modifying any likely to contain suitable habitat since able to sustain a population of either the of those physical or biological features these areas have a greater build up of Kauai cave amphipod or the Kauai cave that were the basis for determining the soil and water does not seem to spider. Information provided by Grove habitat to be critical.’’ The relationship percolate through the rock, suggesting a Farm confirms a large drainage system between a speciessurvival and its lack of unfilled mesocaverns and caves that empties into the limestone formation expected to provide the best recovery has been a source of confusion (Dr. F. Howarth, pers. comm., 2002). to some in the past. We believe that a Unit 13 incorporates the limestone type of habitat for the cave animals. Inclusion of this area with Units 1 species’ ability to recover depends on its cave with verified occurrences of the ability to survive into the future when Kauai cave amphipod. A recent visit to through 13 provides a diverse geographic distribution that will its recovery can be achieved; thus, the the cave by Service biologist Gordon increase the likelihood the species will concepts of long-term survival and Smith, Dr. Frank Howarth, and Grove survive stochastic or catastrophic recovery are intricately linked. Farm consultants Dr. Steven Carothers impacts. This unit has been renamed However, in the March 15, 2001, and Kemble White verified the presence Unit 14 of the designation and includes decision of the United States Court of of the Kauai cave wolf spider in the cave all the limestone bench area most likely Appeals for the Fifth Circuit (Sierra (G. Smith in litt., 2002). This record is to contain the primary constituent Club v. U.S. Fish and Wildlife Service et the first of the Kauai cave wolf spider elements and therefore the animals al., 245 F.3d 434) regarding a not occurring in limestone caves. Although themselves. prudent finding, the Court found our the cave has been extensively surveyed, definition of destruction or adverse the remaining limestone bearing rock Former Unit 3—Puu Keke modification as currently contained in has not been surveyed. Dr. Howarth did Drilling logs were provided around 50 CFR 402.02 to be invalid. In response look at the area near Makawehi and and in the proposed Unit 3 which to this decision, we are reviewing the indicated that the area north of the showed a mixture of limestone, rock, regulatory definition of adverse limestone bench, outside of the dirt, and mud. Based on the number of modification in relation to the conservation zoned area, was not likely areas elsewhere verified to be occupied conservation of the species. to contain the primary constituent or found to be highly likely to contain In order to be included in a critical elements as little barren rock was seen the animals, this area was deemed not habitat designation, the habitat or its and the soil layer appeared to be essential to the conservation of either physical or biological features must first significant. Unit 13 incorporates the species. be ‘‘essential to the conservation of the limestone cave with verified species.’’ Critical habitat designations occurrences of both the Kauai cave wolf Critical Habitat identify, to the extent known, using the spider and the Kauai cave amphipod as Critical habitat is defined in section 3 best scientific and commercial data well as adjoining limestone bench area of the Act as: (i) The specific areas available, habitat areas that provide that is most likely to contain suitable within the geographic area occupied by essential life cycle needs of the species habitat. All other surrounding areas a species, at the time it is listed in (i.e., areas on which are found the were deemed not essential to the accordance with the Act, on which are primary constituent elements, as conservation of either species. found those physical or biological defined at 50 CFR 424.12(b)).

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Section 4 requires that we designate time of the action. We specifically The final rule listing the Kauai cave critical habitat for a species, to the anticipate that federally funded or wolf spider and Kauai cave amphipod extent such habitat is determinable, at assisted projects affecting listed species stressed that these animals were at the time of listing. When we designate outside their designated critical habitat increasing risk from ‘‘predation and critical habitat at the time of listing or areas may still result in jeopardy competition for space, water, and under short court-ordered deadlines, we findings in some cases. Similarly, nutrients by introduced, alien animals; may not have sufficient information to critical habitat designations made on the biological and chemical pesticide identify all the areas essential for the basis of the best available information at control activities associated with conservation of the species or, the time of designation will not control residential and golf course alternatively, we may inadvertently the direction and substance of future development; and an increased include areas that later will be shown to recovery plans, habitat conservation likelihood of extinction from naturally be nonessential. Nevertheless, we are plans, or other species conservation occurring events due to the small required to designate those areas we planning efforts if new information number of remaining individuals and determine to be critical habitat, using available to these planning efforts calls populations and their limited the best information available to us. for a different outcome. Furthermore, distribution’’ (65 FR 2348). Recovery Our regulations state that ‘‘The we recognize that designation of critical may require augmentation or Secretary shall designate critical habitat habitat may not include all of the enhancement of suitable cave habitat outside the geographic areas presently habitat areas that may eventually be and the surrounding mesocaverns. occupied by the species only when a determined to be necessary for the The primary goal of this critical designation limited to its present range recovery of the species. habitat designation effort is to identify would be inadequate to ensure the and designate a sufficient amount of conservation of the species’’ (50 CFR Methods suitable habitat to provide for the 424.12(e)). Accordingly, when the best As required by the Act and conservation of these two species. The available scientific and commercial data regulations (section 4(b)(2) and 50 CFR Service has been challenged in this do not demonstrate that the 424.12), we used the best scientific effort by the lack of scientific conservation needs of the species information available to determine areas information on the distribution of the require designation of critical habitat that contain the physical and biological species and their suitable cave habitat outside of occupied areas, we will not features that are essential for the within the Koloa basin, and a lack of designate critical habitat in areas conservation of the Kauai cave wolf understanding of the physical and outside the geographic area occupied by spider and the Kauai cave amphipod. genetic relationship between the species. This information included: peer- populations located in the various cave Our Policy on Information Standards reviewed scientific publications, the systems that are scattered throughout Under the Endangered Species Act, final listing rule for the Kauai cave wolf the basin. published in the Federal Register on To address these questions, the spider and Kauai cave amphipod (65 FR July 1, 1994 (59 FR 34271), provides Service requested and received 2348), the Hawaii Natural Heritage criteria, establishes procedures, and information in response to the Program database, unpublished field provides guidance to ensure that our publication of the proposed critical decisions represent the best scientific data collected by Service biologists, and habitat designation. This information, and commercial data available. It unpublished field notes and which is detailed in the Summary of requires our biologists, to the extent communications with other qualified Changes from the Proposed Rule, consistent with the Act and with the use biologists or experts, archeological provided new data on the location of of the best scientific and commercial surveys, drilling records, photographs, occupied cave systems and also data available, to use primary and and published descriptions of the indicated areas of relatively higher original sources of information as the regional geology and soils (MacDonald quality habitat that are more likely to be basis for recommendations to designate et. al. 1960; Foote et. al. 1972), and the occupied by these species. This new critical habitat. When determining Recovery Outline for Two Cave information allowed us to refine an which areas are critical habitat, a Arthropods from Kauai, Hawaii original proposal by more precisely primary source of information should be (Service, 2000). identifying areas essential to the the listing package for the species. Section 3(5)(A)(ii) of the Act provides conservation of these species. Additional information may be obtained that areas outside the geographical area However, there are still significant from recovery plans, articles in peer- currently occupied by the species may gaps in our current understanding of reviewed journals, conservation plans meet the definition of critical habitat these species and their habitat needs, developed by States and counties, upon determination that they are especially concerning the degree to scientific status surveys and studies, essential for the conservation of these which individual cave systems are or and biological assessments or other species. Although we do not know are not connected to one another. We unpublished materials. whether the entire area is currently did not receive any additional It is important to clearly understand occupied, to date all caves that have information as to the extent of the that critical habitat designations do not been surveyed within the Koloa basin importance of intercave dispersal signal that habitat outside the that contain all of the primary corridors or any information that would designation is unimportant or may not constituent elements have contained the allow us to identify where these be required for recovery. Areas outside Kauai cave amphipod and/or cave wolf corridors are specifically located. the critical habitat designation will spider. Hence, where appropriate Absent this information, we are unable continue to be subject to conservation habitat occurs within the Koloa basin, to designate as critical habitat any areas actions that may be implemented under we fully expect it will be occupied by that may provide connectivity between section 7(a)(1) and to the regulatory one or both of these species. cave systems. First of all, we do not protections afforded by the Act’s 7(a)(2) Surrounding areas of the known have data to show that such jeopardy standard and section 9 occupied caves that are comprised of connectivity is occurring and if it is, to prohibitions, as determined on the basis cave-bearing rock also will likely what extent and what importance does of the best available information at the contain occupied habitat. it play in the continued existence of the

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species. Second, we are not able to from disturbance that may take place in required to consider those physical and precisely identify, map, and designate and around identified caves. We did not biological features essential to the the underground corridors that would feel that with the additional known species’ conservation that may require provide this connectivity. activities that may be occurring in the special management considerations and Therefore, this final critical habitat Koloa Basin, a 100 ft. buffer would be protection. Such features are termed designation is based on what we are at adequate to protect against impacts from primary constituent elements, and this time able to identify as essential to adjacent development. Dr. Howarth’s include but are not limited to: Space for the conservation of these two species: information on what he believed was a individual and population growth and multiple cave systems (i.e., eight caves necessary buffer to maintain the for normal behavior; food, water, air, occupied by one or both species, six existence of the species in a given area minerals and other nutritional or unknown occupied caves, their assisted us in refining what we believe physiological requirements; cover or associated mesocaverns, and three areas to be an adequate buffer. In cases where shelter; and habitats that are protected containing higher quality habitat likely development around the cave has been from disturbance and represent the to contain one or more occupied caves) completed, a 30 meter (100 ft) buffer historic geographical and ecological known to be occupied or that have around caves was included. A smaller distributions of the species. relatively higher quality habitat and buffer zone was used for these areas The habitat requirements of the Kauai most likely to be occupied, and that are which include habitat most likely cave wolf spider and Kauai cave located in a wide distributional pattern occupied and allow for local intracave amphipod may differ slightly, as the within the basin. As discussed below, dispersal. Because all development and wolf spider can feed on other this approach of multiple populations ground disturbance has already arthropods that become trapped in caves that are distributed throughout the basin occurred in these areas, less refugia is or reside in caves facultatively. provides the best protections against needed and therefore a smaller buffer However, as observed elsewhere in extinction of the species due to area was needed. Hawaii, the presence of a healthy, intact catastrophic events as well as the For those areas where surveys showed cave ecosystem, which includes roots or highest likelihood of long-term they were highly likely to contain other sources of naturally occurring conservation of these species. suitable habitat and the animals were detritus and an associated detritivore or In determining critical habitat for likely to occur, we designated the entire herbivore fauna, contains larger these species, we started with lands area to be sure we would capture any numbers of healthy troglobitic predators within the region containing geologic caves and the surrounding mesocaverns. (A. Asquith, pers. comm., 2001). While and soil characters similar or identical The addition of these areas is essential native, troglobitic predators, to those of known, occupied, accessible to the conservation of the species detritivores, and herbivores may be caves. This area includes the Waikomo- because they create a widely distributed present in caves lacking naturally Kalihi-Koloa soil association (Foote et pattern of protected areas across the best occurring plant biomass, this situation al. 1972) where it overlays the Koloa habitat throughout the Koloa basin. This represents an unhealthy cave ecosystem. Volcanic Series flows (MacDonald et al. wide distribution protects the species Native troglobitic assemblages occurring 1960). In addition, karst outcrops of from a single catastrophic event and in ‘‘sterile’’ caves (those lacking roots or calcified marine deposits are part of the therefore is essential to the conservation other sources of active nutrient input) same geologic deposits that contain the of both species. probably represent declining cave at Mahulepu that is occupied by Because a recovery plan has not been populations that will be extirpated as the Kauai cave amphipod. Solution completed for either of these species, in the existing plant biomass is consumed pockets and voids are abundant in this making this determination, we looked to unless efforts are made to enhance rock type and, like the cave at areas where the Kauai cave wolf spider condititions. Mahulepu, lay on top of old, lava-tube- and the Kauai cave amphipod have been As with most troglobites, both the bearing pahoehoe flows. verified and also included those areas Kauai cave wolf spider and Kauai cave Within these areas, we designated that are highly likely to contain these amphipod require dark or stagnant air sites where either the Kauai cave animals. We looked for a distribution zone habitats in caves. These zones amphipod or the Kauai cave wolf spider across geologically suitable habitat and typically have atmospheres with have been verified as occurring. We set conferred with the recognized expert on humidity at saturation levels (greater or out the following buffers to capture the the necessary distribution of caves equal to 100 percent), which is adjacent mesocaverns where the within the Koloa area to maintain both necessary to prevent desiccation and animals are likely to spend the majority species (Dr. F. Howarth, pers. comm., death of the troglobites. of their time as previously discussed in 2002). This approach is consistent with A sustainable food base, such as the this rule. In cases where development the recovery outline for the Kauai cave roots of living perennial plants or other was not complete, whenever possible, a wolf spider and the Kauai cave sources of detritus, is necessary to 61 meter (200 ft) buffer was included amphipod. If, after critical habitat for support a breeding population and for around caves. Information provided the Kauai cave wolf spider and the the long-term survival of the Kauai cave during the comment period showed that Kauai cave amphipod is designated, a amphipod and other herbivorous or a previous archeological and biological final approved recovery plan for these detritivorous troglobites. In turn, cave survey was done (Hammatt et.al., animals calls for a different approach to healthy populations of herbivores or 1978) that recommended a 30 meter the conservation of the Kauai cave wolf detritivores will help ensure that co- (100 ft) buffer be placed around known spider and the Kauai cave amphipod, evolved predators, such as the Kauai caves. We believe that these buffers are we will consider amending the critical cave wolf spider, will also persist as essential to the conservation of the habitat designation. viable populations. species because they reduce the There is little information on what, if vulnerability of the species to diseases Primary Constituent Elements any, species of food plants are preferred and other catastrophic events by In accordance with section 3(5)(A)(i) by the Kauai cave amphipod. Since the providing habitat that is most likely of the Act and regulations at 50 CFR amphipod is regarded as a detritivore, occupied, area for local intracave 424.12 in determining which areas to there may be little or no food dispersal, as well as refugia from effects propose as critical habitat, we are specialization by these animals.

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However, plant species containing Criteria Used To Identify Critical with soils less than a foot deep. These naturally occurring toxic compounds, Habitat places are where intact mesocaverns such as tannins or alkaloids, might be of We used several criteria to identify and caves with appropriate humidity low food value, inhibit feeding, or result and select lands for designation as levels necessary exist therefore, these in the direct mortality of cave critical habitat. First, we selected areas are the places most likely to be organisms. For this reason, plant species critical habitat areas based on the occupied. Areas within the appropriate geologic and their potential toxicity must be verified distributions of the Kauai cave formations that have had long term or considered as well. Likely candidates wolf spider and the Kauai cave extensive surface disturbance, soil for suitable plants would be native amphipod (known occupied habitat). deposits greater than a foot deep, lack of species like ohia (Metrosideros Then we included additional areas native vegetation, or lack exposed polymorpha), maiapilo (Capparis containing mesocaverns surrounding barren basalt or limestone benches may sandwichiana), and aalii (Dodonea the known occupied caves to capture still provide suitable habitat and viscosa). habitat likely to be occupied and to animals may still occur there. However, The primary constituent elements allow for refugia. it is more likely that the habitat will be The known occupied cave required by the Kauai cave wolf spider relatively degraded, and thus the distribution is not sufficient to expect a and the Kauai cave amphipod consist of probability is lower that animals will be reasonable probability of conservation the presence of subterranean spaces found there. However, if new of either species by protecting against from 5 to 25 cm (0.2 in to 10 in) at the information shows the discovery of threats including but not limited to, narrowest dimension (collectively additional caves and animals in the human intrusion, fluctuating humidity termed ‘‘mesocaverns’’), or caves or areas, and if warranted, we will levels in caves, and loss through consider this information in possible passages (spaces greater than 25 cm (10 catastrophic events (e.g., hurricanes, oil in)), dark and/or stagnant air zones that future revisions of this rule as time and spills and nonnative species available resources allow. maintain microclimates with humidity introductions). Therefore, we looked to at saturation levels, and the presence of For the purpose of this determination, those areas where suitable habitat had critical habitat units have been roots from living, non-toxic plants such been identified through survey work. as, but not limited to, ohia (Metrosideros described using Universal Transverse This included both biological surveys Mercator (UTM) North American Datum polymorpha), maiapilo (Capparis and archeological surveys. The suitable of 1983 (NAD83) coordinates using a sandwichiana), and aalii (Dodonea caves identified, and their surrounding scale of 1:85,000. Soil series was viscosa) in these types of mesocaverns appropriate mesocavern areas, were determined using information and maps or caves. included in this final designation. from soil surveys (Foote et al. 1972). The areas designated as critical The inclusion of these identified Geologic and soil features that appear to habitat for the Kauai cave wolf spider caves, some of which were newly limit the distribution of cave and and the Kauai cave amphipod are discovered, and their surrounding areas mesocavern habitats were determined designed to incorporate what is still did not provide for a wide enough using information and maps from essential for their conservation. Habitat distribution to protect against MacDonald et al. (1960) and Foote et al. components that are essential for these catastrophic events. Therefore, we (1972). two species include the primary looked to those areas within the Koloa We were unable to map the critical biological needs of foraging, basin where site visits indicated the habitat unit boundaries in sufficient reproduction, intraspecific presence of suitable habitat and detail to exclude all existing developed communication, intracave dispersal and therefore a high likelihood of the lands that do not contain the primary presence of the animals. We looked for intracave genetic exchange, or constituent elements. However, as areas with exposed barren basalt, nonrestricted movement to appropriate specified in the final rule language, proximity to the areas that were known microclimates in mesocaverns, and existing features and structures within to contain animals, soils less than a foot refugia from human-induced or other the boundaries of the mapped units that deep, native vegetation, and areas that have resulted in below-surface environmental threats. Caves and had received the least known surface modification or alteration are excluded mesocaverns containing actively disturbance. These areas represent from critical habitat designation. growing tree roots or other sources of habitat likely to be occupied by one or Existing human-constructed structures detritus provide a food source for both species and contain the greatest and features, such as large buildings, herbivorous or detritivorous troglobites, amount of intact mesocaverns with the homes, major roads, and other activities which in turn provide food for required humidity levels necessary for or projects that involve trenching, predators. Such caves will be necessary the cave animals. These types of areas filling, and/or excavation, which likely for the long-term persistence of viable have been identified by Dr. Howarth as resulted in loss or degradation of the populations of the endangered the ones most likely to be occupied by primary constituent elements, are troglobites by providing areas for the Kauai cave amphipod and the Kauai therefore not included within this foraging and reproduction. Caves and or cave wolf spider (Dr. F. Howarth, pers. critical habitat designation. Such mesocaverns lacking food resources but comm., 2002). human-constructed structures and containing appropriate microclimates To provide for the conservation of features would include homes and may provide intracave corridors which both species, a sufficient amount of buildings for which the underlying facilitate movement and genetic limestone habitat needs to be present to bedrock has been altered for their exchange within populations. In provide refugia in case of a catastrophic construction through incorporation of or addition, these areas may also provide event for those animals known to be connection to buried structural refugia from areas impacted by human- existing in limestone habitat. We looked foundations, septic tanks, city sewage induced or other environmental threats, to areas closest to the known occupied and drainage systems, or water and such as when main cave passages limestone cave, with exposed limestone underground electrical supply corridors become temporarily drier or otherwise bench and native vegetation, with little and conduits. Additional areas that are less accomodating. or no prior surface disturbance, and also excluded from critical habitat

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include existing paved roads, quarries, amphipod, including, but not limited to, predators, detritivores, and herbivores and sewage treatment facilities. the presence of subterranean spaces may be present in caves lacking Included in critical habitat are areas that from 5 to 25 cm (0.2 in to 10 in) at the naturally occurring plant biomass, this have been modified on the surface, but narrowest dimension (collectively situation represents an unhealthy cave for which below-surface modifications termed ‘‘mesocaverns’’), or caves or ecosystem. Native troglobitic have not altered the underlying bedrock passages (spaces greater than 25 cm (10 assemblages occurring in ‘‘sterile’’ caves and subterranean habitat. These land in)), dark and/or stagnant air zones that (those lacking roots or other sources of uses include but are not limited to maintain microclimates with humidity active nutrient input) probably agriculture (e.g., sugar cane, corn, at saturation levels, and the presence of represent declining populations that coffee), range land, golf courses, county roots from living, non-toxic plants such will be extirpated as the existing plant as, but not limited to, ohia (Metrosideros and city parks, unimproved roads, and biomass is consumed unless efforts are polymorpha), maiapilo (Capparis undeveloped lands. These areas may lie made to enhance condititions. adjacent to areas that have undergone sandwichiana), and aalii (Dodonea extensive below-surface modification. viscosa) in these types of mesocaverns Lands designated as critical habitat or caves. As discussed previously in this for the Kauai cave wolf spider and Critical Habitat Designation rule under ‘‘Primary Constituent Kauai cave amphipod occur in 14 Lands designated as critical habitat Elements,’’ the presence of a healthy, separate units. The approximate area provide at least one of the primary intact cave ecosystem, includes roots or encompassing the designation of critical constituent elements needed by the other sources of naturally occurring habitat by land ownership is shown in Kauai cave wolf spider and Kauai cave detritus. While native, troglobitic Table 1.

TABLE 1.—APPROXIMATE DESIGNATED CRITICAL HABITAT IN HECTARES (HA) (ACRES (AC)) BY LAND OWNERSHIP. [Area estimates reflect critical habitat unit boundaries, not the primary constituent elements within.]

Unit State/local Private Total

New Unit 01 ...... 0 ha ...... <1 ha ...... <1 ha 0 ac ...... 1 ac ...... 1 ac New Unit 02 ...... 0 ha ...... 7 ha ...... 7 ha 0 ac ...... 16 ac ...... 16 ac New Unit 03 ...... 0 ha ...... 6 ha ...... 6 ha 0 ac ...... 16 ac ...... 16 ac New Unit 04 ...... 0 ha ...... 2 ha ...... 2 ha 0 ac ...... 6 ac ...... 6 ac New Unit 05 ...... 0 ha ...... <1 ha ...... <1 ha 0 ac ...... 2 ac ...... 2 ac New Unit 06 ...... 0 ha ...... 2 ha ...... 2 ha 0 ac ...... 4 ac ...... 4 ac New Unit 07 ...... 0 ha ...... 3 ha ...... 3 ha 0 ac ...... 9 ac ...... 9 ac New Unit 08 ...... <1 ha ...... 2 ha ...... 2 ha 1 ac ...... 6 ac ...... 7 ac New Unit 09 ...... 1 ha ...... <1 ha ...... 1 ha 3 ac ...... <1 ac ...... 4 ac New Unit 10 ...... 0 ha ...... 14 ha ...... 14 ha 0 ac ...... 35 ac ...... 35 ac New Unit 11 ...... 0 ha ...... 4 ha ...... 4 ha 0 ac ...... 10 ac ...... 10 ac New Unit 12 ...... 0 ha ...... 6 ha ...... 6 ha 0 ac ...... 16 ac ...... 16 ac New Unit 13 ...... 0 ha ...... 21 ha ...... 21 ha 0 ac ...... 51 ac ...... 51 ac New Unit 14 ...... 0 ha ...... 39 ha ...... 39 ha 0 ac ...... 96 ac ...... 96 ac

Total ...... 1 ha ...... 109 ha ...... 110 ha 4 ac ...... 268 ac ...... 272 ac

Designated critical habitat includes including it as critical habitat are primary constituent elements essential land under private, county, and State presented below. to these species and which may require ownership. Designated lands include Unit 1: Unit 1 incorporates a newly protection. areas known to be occupied by the found cave and associated mesocaverns Unit 2: Unit 2 incorporates four caves Kauai cave wolf spider and the Kauai with the verified occurrence of the and surrounding mesocaverns with two cave amphipod and include habitat with Kauai cave wolf spider. It is one of only of the caves having verified occurrences similar distribution of geologic and soil six caves with a verified occurrence of of both the Kauai cave wolf spider and characteristics of known occupied the spider. It is highly likely that given the Kauai cave amphipod. This unit habitat and that contain the most the spider’s presence, the amphipod is contains three of the primary probable distribution of appropriate likely to be found there when constituent elements essential to these caves and mesocaverns. A brief conditions are appropriate. This unit species and which may require description of each unit and reasons for contains a minimum of two of the protection.

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Unit 3: Unit 3 consists of a cave and essential to the conservation of the Unit 11: Unit 11 consists of habitat surrounding mesocaverns with suitable species. that has been identified as an area most habitat for both cave animals. It was Unit 9: Unit 9 consists of a cave with likely to be occupied by one or both of identified by Dr. Frank Howarth, an the verified occurrence of the cave the species. The area within Unit 11 expert in this field, as important to amphipod and surrounding available contains barren exposed rock, minimal maintaining the presence of these mesocaverns. It is only one of seven prior surface disturbance, and minimal animals in this area. This unit contains verified occurrences of the amphipod. It soil deposits, all of which provide at minimum two of the primary contains three of the primary higher quality caves and mesocaverns. constituent elements and is one of only constituent elements considered This unit adds to the wide distribution three sites west of Waikomo Stream. essential to the conservation of both across the Koloa Basin that will protect This unit adds to a wide distribution species. the species from extinction from a single across the Koloa Basin which will Unit 10: Unit 10 is located in the catastrophic event and therefore is protect the species from extinction from Koloa district, an area with cave-bearing essential to the conservation of the a single catastrophic event and therefore rock containing an abundance of species. is essential to the conservation of the mesocaverns (small voids, cracks and Unit 12: Unit 12 consists of habitat species. passages). As previously discussed in that has been identified as an area most Unit 4: Unit 4 consists of a cave with the Background section of the rule, the likely to be occupied by one or both of verified occurrences of both the Hawaiian basalt, found in this area, the species. The area within Unit 12 amphipod and the spider and the shrinks and cracks upon cooling contains barren exposed rock, minimal surrounding mesocaverns. It is one of creating the mesocaverns. In addition, prior surface disturbance, and minimal only six caves with a verified this unit contains a cave that was used soil deposits, all of which provide occurrence of the spider, and one of as a Civil Defense shelter. The entrance higher quality caves and mesocaverns. only seven verified occurrence of the to the cave was sealed and has not been This unit adds to the wide distribution amphipod. It contains at minimum two subsequently relocated. Therefore, the across the Koloa Basin that will protect of the primary constituent elements, current occupancy status for these the species from extinction from a single essential to the these species and which species is unknown. Although human catastrophic event and therefore is may require protection. use can detrimentally impact cave essential to the conservation of the systems (see discussion under threats), Unit 5: Unit 5 consists of a cave with species. they do not necessarily make the cave Unit 13: Unit 13 consists of the only verified occurrences of both the permanently unsuitable. For example, known occupied limestone cave and amphipod and the spider mapped by one of the cave systems included in surrounding mesocaverns. The cave is the Service and the surrounding critical habitat on Alexander and occupied by both arthropods and is one mesocaverns. It is one of only seven Baldwin (A&B) property (Unit 2) was of only seven verified locations of the verified occurrences of the amphipod, also previously used as a civil defense amphipod, and one of six verified and one of only six verified occurrences shelter and is currently occupied by locations of the spider. This unit for the spider. This unit contains three these species. Since the cave in Unit 10 contains three of the primary of the primary constituent elements was so large and long, it is unlikely that constituent elements considered essential to these species and which it has been completely filled in and the essential to the conservation of both may require protection. sealing of the entrance likely increased species. Unit 6: Unit 6 consists of a cave and the humidity levels available in the Unit 14: Unit 14 is composed of surrounding mesocaverns identified in cave. As discussed in the Cave Habitat uplifted coral and algal reefs and an archaeological survey and is likely to section of the rule, cave systems for consolidated calcareous deposits be occupied by one or both of the these species include one or more caves (MacDonald et al. 1960). Exposed species. At this time, its occupancy comprised of five zones (entrance, basaltic flows are not believed to be status is unknown. This unit adds to the twilight, transition, dark and stagnant) present within this unit. This unit lies wide distribution across the Koloa Basin and mesocaverns. While these only a short distance (approximately that will protect the species from mesocaverns can possess characteristics 350 m (1,100 ft)) from Unit 13, which extinction from a single catastrophic of each of the five zones, they frequently is occupied, and was likely once event and therefore is essential to the represent conditions of the stagnant connected to that unit in the geologic conservation of the species. zone. These mesocaverns are believed to past (Pleistocene Era) by deposits that Unit 7: Unit 7 consists of a cave with provide refugia for these species when have since eroded away or have been a verified occurrence of the amphipod impacts make the caves uninhabitable covered by unconsolidated sediments. It and surrounding available mesocaverns. for them. Unit 10 is believed to contain is not known if this unit is currently It is one of only seven verified at least three PCEs (cave, mesocaverns, occupied by the Kauai cave wolf spider, occurrences of the amphipod. This unit and appropriate microclimate [i.e., high Kauai cave amphipod, or other endemic contains at minimum two of the primary levels of humidity]). Information troglobites. constituent elements essential to the provided during the comment period Recent visits to this unit have found conservation of the species. (drilling records) show that the other that the area is composed of exposed Unit 8: Unit 8 contains a lava tube areas surrounding Unit 10 have large calcareous deposits containing cracks identified through an archaelogical deposits of clay or housing and other and solution pockets, which are survey and the surrounding structures have been built in the area. indicative of the presence of underlying mesocaverns associated with the tube. It The presence of clay and housing cave and mesocavern habitats. While is an area that is most likely to harbor developments make it unlikely that accessible caves have not been located, the animals and contains at least two of additional areas adjacent to Unit 10 air-passages, holes, and fissures visible the primary constituent elements. This contain any remaining PCEs. Unit 10 is above ground strongly suggest the unit adds to the wide distribution across necessary to maintain continuity of the presence of underlying caves or the Koloa Basin that will protect the distribution of areas throughout the mesocaverns. Critical habitat is species from extinction from a single Koloa Basin making it essential to the designated in this unit because of the catastrophic event and therefore is conservation of the species. cave-bearing nature of the geology, and

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because of the occurrence of occupied responsible Federal agency (action funded or permitted do not require habitat in adjacent areas with similar agency) must enter into consultation section 7 consultation. geologic features. Because the types of with us. Through this consultation, the Section 4(b)(8) of the Act requires us voids that occur in these calcareous Federal agency would ensure that the to evaluate briefly in any proposed or formations continuously reform, thereby permitted actions do not destroy or final regulation that designates critical providing suitable habitat for very long adversely modify critical habitat. habitat those activities involving a time spans, this area is essential to Regulations at 50 CFR 402.16 require Federal action that may adversely provide for population expansion and Federal agencies to reinitiate formal modify such habitat or that may be refuge from human and catastrophic consultation on previously reviewed affected by such designation. Activities environmental threats. This unit actions in instances where critical that may result in the destruction or currently has minimal human presence habitat is subsequently designated and adverse modification of critical habitat in the area, and there are no known the Federal agency has retained include those that alter the primary current plans for development. discretionary involvement or control constituent elements to an extent that Inclusion of this area with Units 1 over the action or such discretionary the value of critical habitat for the through 13 provides a diverse involvement or control is authorized by conservation of the Kauai cave wolf geographic distribution that will law. Consequently, some Federal spider and Kauai cave amphipod is increase the likelihood the species will agencies may request reinitiation of appreciably reduced. We note that such survive stochastic or catastrophic consultation with us on actions for activities also may jeopardize the impacts and is therefore considered which formal consultation has been continued existence of the species. essential to the conservation of both completed if those actions may affect Activities that may directly or indirectly species. designated critical habitat or adversely adversely affect critical habitat for these cave animals include, but are not Effects of Critical Habitat Designation modify or destroy proposed critical habitat. limited to: (1) Removing, thinning, or destroying Section 7 Consultation If we issue a biological opinion perennial surface vegetation occurring concluding that a project is likely to Section 7(a)(2) of the Act requires directly above or adjacent to the cave or result in the destruction or adverse Federal agencies, including the Service, within the cave (roots) or mesocaverns to ensure that actions they fund, modification of critical habitat, we also (as defined in the primary constituent authorize, or carry out are not likely to provide ‘‘reasonable and prudent elements discussion), whether by destroy or adversely modify critical alternatives’’ to the project, if any are burning, or by mechanical, chemical, or habitat. Destruction or adverse identifiable. Reasonable and prudent other means (e.g., wood cutting, grading, modification occurs when a Federal alternatives are defined at 50 CFR overgrazing, construction, road action directly or indirectly alters 402.02 as alternative actions identified building, mining, herbicide application, critical habitat to the extent it during formal consultation that can be etc.); appreciably diminishes the value of the implemented in a manner consistent (2) Activities within or outside of the critical habitat for the conservation of with the intended purpose of the action, cave or other mesocavern (i.e., all cave- the species. Individuals, organizations, that are consistent with the scope of the bearing rock) that promotes prolonged States, local governments, and other Federal agency’s legal authority and soil-disturbance, resulting in the filling non-Federal entities are affected by the jurisdiction, that are economically and of caves, voids, and mesocaverns, with designation of critical habitat when technologically feasible, and that the sediments or other materials, or alters their actions occur on Federal lands, Director believes would avoid the airflow, and/or light penetration such require a Federal permit, license, or likelihood of the destruction or adverse that habitat microclimates are exposed other authorization, or involve Federal modification of critical habitat. to conditions of desiccation. These funding. Reasonable and prudent alternatives can activities include, but are not limited to: Section 7(a)(1) of the Act requires vary from slight project modifications to Utilizing caves for the disposal of Federal agencies, including the Service, extensive redesign or relocation of the wastes or unwanted soil or rock, to use their authorities to carry out project. elevated and prolonged soil disturbance programs for the conservation of any Activities on Federal lands that may above or adjacent to cave-bearing rock, species that is proposed or listed as affect the Kauai cave wolf spider or closing existing cave openings, endangered or threatened. Section Kauai cave amphipod or their critical breeching existing caves (i.e., creating 7(a)(4) of the Act requires Federal habitat will require section 7 new openings), modifying the natural agencies (action agency) to confer with consultation. Activities on private or geomorphology of a cave interior, us on any action that is likely to State lands that may affect the species passage, or opening; jeopardize the continued existence of a or their critical habitat and that require (3) Appreciably decreasing habitat species proposed for listing or result in a permit from a Federal agency, such as value or quality through indirect effects destruction or adverse modification of a permit from the U.S. Army Corps of (e.g., introduction or promotion of proposed critical habitat. Regulations Engineers (ACOE) under section 404 of potential predators, parasitoids, implementing this interagency the Clean Water Act, or some other diseases, or disease vectors (e.g., cooperation provision of the Act are Federal action, including funding (e.g., nonnative arthropods), vertebrate or codified at 50 CFR part 402. from the Federal Highway invertebrate food competitors, or If a species is listed or critical habitat Administration, Federal Aviation invasive plant species), habitat is designated, section 7(a)(2) of the Act Administration, Federal Emergency fragmentation, overgrazing, water requires Federal agencies to ensure that Management Agency (FEMA), or diversion or impoundment, actions they authorize, fund, or carry Natural Resources Conservation Service groundwater pumping, inappropriately out are not likely to jeopardize the (NRCS)) will also continue to be subject planned ground water disposal (e.g., continued existence of such a species or to the section 7 consultation process. diversion into potential habitat or destroy or adversely modify its critical Federal actions not affecting listed prevention of natural water recharge habitat. If a Federal action may affect a species or critical habitat and actions on into soils and rock above and adjacent listed species or its critical habitat, the non-Federal lands that are not federally to caves), or other activities that could

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potentially alter water quality or critical habitat, contact the Field 3,921 acres or 94 percent. As described quantity to an extent that vegetation Supervisor, Pacific Islands Ecological in the analysis, direct costs result from structure is affected, cave humidity Service’s Field Office (see ADDRESSES section 7 consultation, surveys, and levels are reduced, habitat is flooded, or section). Requests for copies of the project modifications associated with toxic materials (e.g., pesticides, fuel, regulations on listed wildlife and plants, activities such as a county road (Koloa solvents, or other household or and inquiries about prohibitions and Bypass) widening project, and industrial chemicals) are transported permits, should be directed to the Field expansion of Kiahuna golf course. into habitat, and activities that increase Supervisor, Pacific Islands Ecological Our final economic analysis includes the risk of fire within or outside habitats Service’s Field Office. an evaluation of potential indirect costs above the cave; Analysis of Impacts Under Section associated with designation of critical (4) Application of pesticides, 4(b)(2) habitat for the Kauai cave wolf spider herbicides, insecticides, fungicides, or and Kauai cave amphipod. Based on the Section 4(b)(2) of the Act requires us other such chemicals within, above, or final economic analysis, the indirect to designate critical habitat on the basis adjacent to known habitat, that may costs are associated with actual or of the best scientific and commercial directly or indirectly affect troglobitic perceived loss of development potential information available, and to consider organisms; and and are expressed in terms of a loss in the economic and other relevant (5) Release of certain biological property value. These values reflect: impacts of designating a particular area control organisms within or outside of Landowner’s development plans (if as critical habitat. We may exclude areas the critical habitat area. Biological any); existing entitlements; the organisms include, but are not limited from critical habitat upon a determination that the benefits of such probability of obtaining remaining to: Predaceous or parasitoid vertebrates development approvals (State or invertebrates, fungi, bacteria, or other exclusions outweigh the benefits of specifying such areas as critical habitat. redistricting, General Plan designation natural or bioengineered biocontrol by the county, county zoning, etc.); and organisms. We cannot exclude an area from critical habitat when that exclusion will result existing infrastructure improvements. In Federal agencies already consult with some cases, the loss in property value is us on activities in areas where the in the extinction of the species concerned. estimated directly based on adjustments species may be affected by their projects to the appraised or assessed value of to ensure that their actions do not Economic Impacts comparable land. In other cases, the loss jeopardize the continued existence of is based on the discounted present value the species. These actions include, but Following the publication of the proposed critical habitat designation on of future profits based on specific are not limited to: development plans. Since the property (1) Regulation of activities affecting March 27, 2002, a draft economic value of undeveloped land reflects the waters of the United States by the ACOE analysis was prepared to estimate the discounted value of future profits, the under section 404 of the Clean Water potential economic impact of the two approaches are equivalent in Act; designation, in accordance with recent (2) Regulation of water flows, decisions in the N.M. Cattlegrowers concept. The analysis of lost property damming, diversion, and channelization Ass’n v. U.S. Fish and Wildlife Serv., values focuses only on the land in or by Federal agencies; 248 F.3d 1277 (10th Cir. 2001). The DEA around the critical habitat units, and (3) Development on private or State was made available for review on anticipates no islandwide impacts on lands requiring permits from other November 15, 2002 (67 FR 69177). We economic and population growth. The Federal agencies, such as the accepted comments on the DEA until analysis anticipates that while Department of Housing and Urban the comment period closed on development will not occur within Development; December 16, 2002. some areas designated as critical habitat, (4) Construction of communication Following the close of the comment other developments in the Koloa/Poipu sites licensed by the Federal period on the draft economic analysis, area will increase in density or area to Communications Commission; a final addendum was completed, largely offset this loss, thereby resulting (5) Road construction and which incorporated public comments in a negligible change in island wide maintenance, right-of-way designation, on the draft analysis and made other development. For affected properties, and regulation of agricultural activities changes in the draft as necessary. In however, the total potential loss in by Federal agencies; particular, the addendum focuses on the property values that could be indirectly (6) Hazard mitigation and post- 272 acres and associated impacts that associated with the designation ranges disaster repairs funded by the FEMA; will be associated with the designation. from $4.5 million to $6.1 million. This and. The addendum to the draft economic range represents the high estimate of the (7) Activities not previously analysis estimates that, over the next 18 potential loss in property values mentioned that are funded or authorized years, the designation may result in indirectly associated with the critical by the U.S. Department of Agriculture potential direct economic effects habitat designation, and may be offset (Forest Service, NRCS), Department of ranging from approximately $260,000 to by adjusting the project (e.g., density) to Defense, Department of Transportation, $429,000. The reduction ranging from offset the loss of development within Department of Energy, Department of approximately $56.2 million to $61.8 the critical habitat, or it may not be the Interior (U.S. Fish and Wildlife million from the costs estimated in the realized if the development within the Service, U.S. Geological Survey, original draft economic analysis is critical habitat proceeds as proposed. National Park Service), Department of primarily due to the significant Additional potential indirect costs are Commerce (National Oceanic and reduction of acreage in proposed Units associated with the following: Atmospheric Administration), ACOE, 1a and 2, and the removal of proposed Contesting redistricting, State and FEMA, Environmental Protection Units 1b and 3 in the final critical county environmental review, and Agency, or any other Federal agency. habitat designation for the cave animals. investigating the implications of the If you have questions regarding These changes reduce the total critical final designation. Other indirect costs whether specific activities would habitat acreage from approximately identified in the draft economic analysis constitute adverse modification of 4,193 acres to 272 acres, a reduction of are no longer anticipated for the

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designation of critical habitat because entities. SBREFA amended the RFA to entities affected within particular types the affected areas have been excluded or require Federal agencies to provide a of economic activities (e.g., housing reduced. statement of the factual basis for development, grazing, oil and gas A more detailed discussion of our certifying that a rule will not have a production, timber harvesting, etc.). We economic analysis is contained in the significant economic impact on a apply the ‘‘substantial number’’ test addendum. It is available for inspection substantial number of small entities. individually to each industry to at the Pacific Islands Fish and Wildlife Federal courts and Congress have determine if certification is appropriate. Office (see ADDRESSES section). indicated that an RFA/SBREFA analysis In estimating the numbers of small No critical habitat units in the should be limited to all impacts to entities potentially affected, we also proposed rule were excluded or entities directly subject to the consider whether their activities have modified due to economic impacts requirements of the regulation (Service any Federal involvement; some kinds of because the expected cost of the 2002). Directly regulated entities may activities are unlikely to have any designation (i.e. direct cost) is not laso be indirectly impacted and these Federal involvement and so will not be significant. The indirect costs are indirect impacts should be considered. affected by critical habitat designation. speculative and represent a worst case Therefore, entities not directly regulated Based on our final economic analysis, scenario. by the listing or critical habitat the primary projects and activities that As described above, section 4(b)(2) of designation are not considered in this could be affected by the critical habitat the Act also requires us to consider section of the analysis. designation include Service In today’s rule, we are certifying that other relevant impacts, in addition to conservation agreements, NRCS the designation of critical habitat for the economic impacts, of designating conservation programs, FHWA funding Kauai cave amphipod and the Kauai critical habitat. No critical habitat units road projects, ACOE section 404 cave wolf spider will not have a were excluded or modified due to non- permits, Kauai County Department of economic impacts. significant effect on a substantial number of small entities. The following Public Works (DPW) road project, and Required Determinations discussion explains our rationale. two private entities—Grove Farm partial funding of a survey for a conservation Regulatory Planning and Review Small entities include small organizations, such as independent non- project and KG Kauai Development In accordance with Executive Order profit organizations, and small (KGKD)/Kobayashi Group LLC planned 12866, the Office of Management and governmental jurisdictions, including golf courses. For the purposes of the Budget (OMB) has determined that this school boards and city and town RFA/SBREFA, Federal agencies are not critical habitat designation is not a governments that serve fewer than considered small governments. significant regulatory action. This rule 50,000 residents, as well as small Accordingly, the Service, NRCS, FHWA, will not have an annual economic effect businesses. Small businesses include and ACOE are not considered small of $100 million or more or adversely manufacturing and mining concerns entities. As mentioned above, county affect any economic sector, with fewer than 500 employees, agencies such as the DPW are not productivity, competition, jobs, the wholesale trade entities with fewer than considered small entities. The primary environment, or other units of 100 employees, retail and service business activity of Grove Farm is real government. This designation will not businesses with less than $5 million in estate asset management. The SBA create inconsistencies with other annual sales, general and heavy defines a business in the real estate asset agencies’ actions or otherwise interfere construction businesses with less than management industry as small if its with an action taken or planned by $27.5 million in annual business, annual sales are less than $1.5 million. another agency. It will not materially special trade contractors doing less than According to this definition and 2000 affect entitlements, grants, user fees, $11.5 million in annual business, and sales information, Grove Farm is not a loan programs, or the rights and agricultural businesses with annual small business. KGKD is affiliated with obligations of their recipients. Finally, sales less than $750,000. The RFA/ Kobayashi Group, LLC (Kobayashi). this designation will not raise novel SBREFA defines ‘‘small governmental Kobayashi’s primary business activity is legal or policy issues. Accordingly, jurisdiction’’ as the government of a real estate asset management. The SBA OMB has not reviewed this final critical city, county, town, school district with defines a business in the real estate habitat designation. a population of less than 50,000. By this asset-management industry as small if definition, Federal government agencies its annual sales are less than $1.5 Regulatory Flexibility Act (5 U.S.C. 601 are not small business under SBA million. Kobayashi is a private business, et seq.) guidelines and State agencies are not and its annual sales figures are not Under the Regulatory Flexibility Act considered small governments under listed in the Dun & Bradstreet database. (RFA), as amended by the Small RFA. Kauai County is also not a small However, the Kobayashi Group owns Business Regulatory Enforcement governmental jurisdiction because it has the following properties: two hotels in Fairness Act (SBREFA) of 1996, a population greater than 50,000. To Waikiki, the Ocean Resort Hotel Waikiki whenever an agency is required to determine if potential economic impacts (450 rooms), and the Queen Kapiolani publish a notice of rulemaking for any to these small entities are significant, we Hotel (314 rooms); three golf courses; proposed or final rule, it must prepare consider the types of activities that developable land in Koloa; and possibly and make available for public comment might trigger regulatory impacts under other property. Rough estimates of the a regulatory flexibility analysis that this rule as well as the types of project revenues generated from these describes the effects of the rule on small modifications that may result. In properties suggest that annual revenues entities (i.e., small businesses, small general, the term ‘‘significant economic for the Kobayashi Group are at least $24 organizations, and small government impact’’ is meant to apply to a typical million [(764 rooms × 70 percent jurisdictions). However, no regulatory small business firm’s business occupancy × $100 per room × 365 days) flexibility analysis is required if the operations. + (3 golf courses × 30,000 rounds of golf head of the agency certifies that the rule To determine if the rule would affect per year × $50 per round) = $24 million will not have a significant economic a substantial number of small entities, per year]. According to the RFA/ impact on a substantial number of small we consider the number of small SBREFA regulations, the SBA counts

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the receipts of the business whose size for the Kauai cave wolf spider and the designation of critical habitat imposes is at issue and those of all its affiliates Kauai cave amphipod will not have a no direct obligations on State or local in determining the size of the business. significant economic impact on a governments. Therefore, KGKD and Kobayashi are not substantial number of small entities. (b) This rule will not ‘‘significantly or small businesses. Therefore, a regulatory flexibility uniquely’’ affect small governments, so The Kauai cave wolf spider and the analysis is not required. a Small Government Agency Plan is not Kauai cave amphipod have only been required. Small governments will not be listed since January 2000 and no Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)) affected unless they propose an action consultations have occurred involving requiring Federal funds, permits, or these species. As a result, the Under the Small Business Regulatory other authorizations. Any such activities requirement to reinitiate consultations Enforcement Fairness Act (5 U.S.C. 801 will require that the Federal agency for ongoing projects will not affect a et seq.), this rule is not a major rule. Our ensure that the action will not adversely substantial number of small entities on detailed assessment of the economic modify or destroy designated critical Kauai. effects of this designation are described habitat. None of the designation is on Federal in the final addendum to the economic lands. On non-Federal lands, activities analysis. Based on the effects identified Takings that lack Federal involvement would in this document, we believe that this In accordance with Executive Order not be affected by the critical habitat rule will not have an effect on the 12630 (‘‘Government Actions and designations. However, activities of an economy of $100 million or more, will Interference with Constitutionally economic nature that are likely to occur not cause a major increase in costs or Protected Private Property Rights’’), we on non-Federal lands in the area prices for consumers, and will not have have analyzed the potential takings encompassed by these designations significant adverse effects on implications of designating critical consist of housing or resort competition, employment, investment, habitat for the Kauai cave wolf spider development that may require permits productivity, innovation, or the ability and the Kauai cave amphipod in a from the Department of Housing and of U.S.-based enterprises to compete takings implication assessment. The Urban Development, small farms that with foreign-based enterprises. Refer to takings implications assessment may receive funding or require the final addendum to the economic concludes that this final rule does not authorizations from the Department of analysis for a discussion of the effects of pose significant takings implications. Agriculture, or restoration projects this determination. sponsored by NRCS. In addition, Federalism consultation with the ACOE may occur Executive Order 13211 In accordance with Executive Order if a permit is required for a project in On May 18, 2001, the President issued Waikomo Stream that may negatively Executive Order 13211 on regulations 13132, this final rule does not have impact adjacent cave systems. Waikomo that significantly affect energy supply, significant Federalism effects. A Stream runs between two known distribution, and use. Executive Order Federalism assessment is not required. occupied cave systems and consultation 13211 requires agencies to prepare In keeping with Department of Interior may be required if the activities on the Statements of Energy Effects when policy, we requested information from stream may affect the cave systems and undertaking certain actions. Although appropriate State agencies in Hawaii. the Kauai cave amphipod and Kauai this rule is a significant regulatory The designations may have some cave wolf spider. However, we are not action under Executive Order 12866, it benefit to these governments, in that the aware of a significant number of future is not expected to significantly affect areas essential to the conservation of activities that would require Federal energy production supply and these species are more clearly defined, funds, permits, or authorizations in the distribution facilities because no and the primary constituent elements of designated areas. Two to three small significant energy production, supply, the habitat necessary to the survival of fruit and vegetable farmers may be and distribution facilities are included the species are specifically identified. impacted by the designation but these within designated critical habitat. While this definition and identification entities do not represent a substantial Further, for the reasons described in the does not alter where and what federally number of the total small entities in economic analysis, we do not believe sponsored activities may occur, it may these industries. Therefore, we conclude that designation of critical habitat for assist these local governments in long- that the rule would not affect a the Kauai cave amphipod and the Kauai range planning, rather than waiting for substantial number of small entities. cave wolf spider will affect future a case-by-case section 7 consultation to Even where the requirements of energy production. Therefore, this occur. section 7 might apply due to critical action is not a significant energy action, Civil Justice Reform habitat, based on our experience with and no Statement of Energy Effects is section 7 consultations for all listed required. In accordance with Executive Order species, virtually all projects-including 12988, the Department of the Interior’s those that, in their initial proposed Unfunded Mandates Reform Act (2 Office of the Solicitor has determined form, would result in jeopardy or U.S.C. 1501 et seq.) that this does not unduly burden the adverse modification determinations in In accordance with the Unfunded judicial system and meets the section 7 consultations-can be Mandates Reform Act (2 U.S.C. 1501 requirements of sections 3(a) and 3(b)(2) implemented successfully with, at most, August 25, 2000 et seq.): of the Order. We have designated the adoption of reasonable and prudent (a) For the reasons described in the critical habitat in accordance with the alternatives. These measures, by final economic analysis, this rule will provisions of the Act. The rule uses definition, must be economically not produce a Federal mandate on State standard property descriptions and feasible and within the scope of or local governments or the private identifies the primary constituent authority of the Federal agency involved sector of $100 million or greater in any elements within the designated areas to in the consultation. year; that is, it is not a ‘‘significant assist the public in understanding the For these reasons, we are certifying regulatory action’’ under the Unfunded habitat needs of the Kauai cave wolf that the designation of critical habitat Mandates Reform Act. Further, the spider and Kauai cave amphipod.

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Paperwork Reduction Act of 1995 (44 Government-to-Government List of Subjects in 50 CFR Part 17 U.S.C. 3501 et seq.) Relationship With Tribes Endangered and threatened species, This rule does not contain any In accordance with the President’s Exports, Imports, Reporting and memorandum of April 29, 1994, information collection requirements for recordkeeping requirements, ‘‘Government-to-Government Relations Transportation. which OMB approval under the with Native American Tribal Paperwork Reduction Act is required. Governments’’ (59 FR 22951), Executive Regulation Promulgation An agency may not conduct or sponsor, Order 13175, and 512 DM 2, we readily and a person is not required to respond acknowledge our responsibility to ■ Accordingly, we amend part 17, sub- to a collection of information unless it communicate meaningfully with chapter B of chapter I, title 50 of the Code displays a valid OMB Control Number. recognized Federal Tribes on a of Federal Regulations as set forth below: National Environmental Policy Act government-to-government basis. We have determined that there are no Tribal PART 17—[AMENDED] We have determined that we do not lands essential for the conservation of ■ the Kauai cave wolf spider and Kauai 1. The authority citation for part 17 need to prepare an Environmental continues to read as follows: Assessment or an Environmental Impact cave amphipod. Therefore, designation Statement as defined by the National of critical habitat for these species does Authority: 16 U.S.C. 1361–1407; 16 U.S.C. not involve any Tribal lands. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Environmental Policy Act of 1969 in 625, 100 Stat. 3500; unless oherwise noted. connection with regulations adopted References Cited pursuant to section 4(a) of the A complete list of all references cited ■ 2. In § 17.11(h), revise the entries for Endangered Species Act. We published in this final rule is available, upon ‘‘spider, Kauai cave wolf’’ under a notice outlining our reason for this request, from the Pacific Islands Fish ‘‘ARACHNIDS’’ and ‘‘amphipod, Kauai determination in the Federal Register and Wildlife Office (see ADDRESSES cave’’ under ‘‘CRUSTACEANS’’ to read on October 25, 1983 (48 FR 49244). This section). as follows: determination does not constitute a Author § 17.11 Endangered and threatened major Federal action significantly wildlife. affecting the quality of the human This rule was primarily prepared by * * * * * environment. the Pacific Islands Fish and Wildlife Office (see ADDRESSES section). (h) * * *

Species Vertebrate population Historic range where en- Status When listed Critical Special Common name Scientific name dangered or habitat rules threatened

******* ARACHNIDS

******* Spider, Kauai cave wolf Adelocosa anops ...... U.S.A. (HI) ...... NA E 676 17.95(g) ..... NA

******* CRUSTACEANS

******* Amphipod, Kauai cave Spelaeorchestia U.S.A. (HI) ...... NA E 676 17.95(h) ..... NA koloana.

*******

■ 3. Amend § 17.95 by adding, in the (1) Critical habitat units are depicted limited to, ohia (Metrosideros same alphabetical order as these species for the island of Kauai, Hawaii, on the polymorpha), maiapilo (Capparis occur in § 17.11(h): maps below. sandwichiana), and aalii (Dodonea ■ a. In paragraph (g), critical habitat for (2) The primary constituent elements viscosa). the Kauai cave wolf spider (Adelocosa for the Kauai cave wolf spider are: (3) All critical habitat areas contain anops); and (i) The presence of subterranean one or more of the primary constituent ■ b. In paragraph (h), critical habitat for spaces from 5 mm to 25 cm (0.2 in to elements for the Kauai cave wolf spider. the Kauai cave amphipod 10 in) at their narrowest point (4)(i) Existing human-constructed (Spelaeorchestia koloana), as set forth (collectively termed ‘‘mesocaverns’’) features and structures within the below. and/or cave passages greater than 25 cm boundaries of mapped units that (>10 in); involved trenching, filling, or § 17.95 Critical habitat—fish and wildlife. (ii) Dark and/or stagnant air zones that excavation resulting in below-surface * * * * * maintain relative humidity at saturation modification or alteration would not (g) Arachnids. levels (≥100 percent); and contain either of the primary constituent * * * * * (iii) The presence in these types of elements and are excluded from critical Kauai cave wolf spider (Adelocosa mesocaverns or caves of roots from habitat designation. Such features and anops). living, nontoxic plants such as, but not structures include but are not limited to:

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Homes and buildings for which the (ii) Areas that have been modified on (5) Critical habitat units are described underlying bedrock has been altered for the surface but without trenching, below. Coordinates in UTM Zone 4 with their construction or through filling, or excavation resulting in below- units in meters using North American incorporation of or connection to buried surface modification or alteration are Datum of 1983 (NAD83). The following structural foundations, septic tanks, city included in the critical habitat map shows the general locations of the sewage and drainage systems, or water designation, even if they are adjacent to 14 critical habitat units designated on or underground electrical supply areas that have undergone below-surface the island of Kauai. corridors; paved roads; and areas modification. previously or currently used as a quarry. (i) Note: Map 1—Index map follows:

(6) Unit 1—(<1 ha (1 ac)): 450554, 2420457; 450546, 2420468; (ii) Note: Unit 1 is depicted on Map (i) Unit 1 consists of the following 10 450576, 2420510; 450586, 2420518; 2—Units 1, 2, 3, and 4—below. boundary points with the following 450607, 2420516; 450624, 2420502; (7) Unit 2—(7 ha (16 ac)): coordinates in UTM Zone 4, with the 450625, 2420480; 450618, 2420452; (i) Unit 2 consists of the following 16 units in meters, using North American 450600, 2420437; 450574, 2420434; boundary points with the following Datum of 1983 (NAD83): Start at return to starting point. coordinates in UTM Zone 4, with the

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units in meters, using North American 450881, 2419947; 450879, 2419981; 451994, 2419844; 451989, 2419867; Datum of 1983 (NAD83): Start at 450855, 2420053; 450859, 2420089; 451994, 2419890; 452007, 2419910; 451483, 2420974; 451539, 2420991; 450903, 2420089; 451012, 2420125; 452027, 2419923; 452045, 2419927; 451583, 2421015; 451622, 2421014; 451058, 2420191; 451138, 2420180; 452053, 2419932; 452076, 2419936; 451667, 2420984; 451677, 2420926; 451184, 2420119; 451159, 2420048; 452082, 2419936; 452084, 2419936; 451680, 2420869; 451705, 2420799; 451194, 2420014; 451183, 2419982; 452090, 2419939; 452095, 2419942; 451622, 2420769; 451650, 2420664; 451136, 2419987; 451114, 2419892; 452096, 2419943; 452118, 2419954; 451488, 2420620; 451468, 2420624; return to starting point. 452145, 2419960; 452168, 2419955; (ii) Note: Unit 3 is depicted on Map 451433, 2420642; 451470, 2420758; 452188, 2419942; 452201, 2419922; 2—Units 1, 2, 3, and 4—below. 451501, 2420801; 451510, 2420870; 452206, 2419899; 452201, 2419876; return to starting point. (9) Unit 4—(2 ha (6 ac)): 452188, 2419856; 452172, 2419844; (ii) Note: Unit 2 is depicted on Map (i) Unit 4 consists of the following 33 2—Units 1, 2, 3, and 4—below. boundary points with the following 452153, 2419835; 452132, 2419822; (8) Unit 3—(6 ha (16 ac)): coordinates in UTM Zone 4, with the 452123, 2419817; 452099, 2419812; (i) Unit 3 consists of the following 14 units in meters using North American 452093, 2419812; return to starting boundary points with the following Datum of 1983 (NAD83): Start at point. coordinates in UTM Zone 4, with the 452087, 2419809; 452063, 2419804; (ii) Note: Unit 4 is depicted on Map units in meters using North American 452053, 2419805; 452040, 2419807; 2—Units 1, 2, 3, and 4—which follows: Datum of 1983 (NAD83): Start at 452027, 2419811; 452007, 2419824;

(10) Unit 5—(1 ha (2 ac)): units in meters using North American 452492, 2420652; 452491, 2420660; (i) Unit 5 consists of the following 35 Datum of 1983 (NAD83): Start at 452492, 2420669; 452497, 2420683; boundary points with the following 452493, 2420608; 452493, 2420613; 452498, 2420686; 452502, 2420694; coordinates in UTM Zone 4, with the 452493, 2420616; 452496, 2420639; 452516, 2420711; 452518, 2420713;

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452528, 2420720; 452540, 2420722; 453167, 2420579; 453169, 2420551; (i) Unit 8 consists of the following 33 452552, 2420720; 452561, 2420713; 453165, 2420533; 453156, 2420517; boundary points with the following 452568, 2420704; 452570, 2420692; 453141, 2420500; 453127, 2420490; coordinates in UTM Zone 4, with the 452568, 2420680; 452564, 2420673; 453109, 2420486; 453078, 2420490; units in meters using North American 452553, 2420660; 452556, 2420649; 453053, 2420505; 453042, 2420522; Datum of 1983 (NAD83): Start at 452557, 2420641; 452557, 2420637; 453034, 2420543; 453032, 2420559; 452763, 2421383; 452759, 2421402; 452554, 2420613; 452555, 2420611; 453036, 2420585; return to starting 452760, 2421421; 452767, 2421462; 452555, 2420607; 452553, 2420595; point. 452766, 2421477; 452768, 2421497; 452546, 2420585; 452536, 2420579; (ii) Unit 6 is depicted on Map 3— 452771, 2421510; 452780, 2421523; 452525, 2420576; 452513, 2420579; Units 5, 6, 7, and 8—below. 452812, 2421556; 452824, 2421564; 452503, 2420585; 452496, 2420595; (12) Unit 7—(3 ha (9 ac)): 452831, 2421567; 452848, 2421571; 452494, 2420602; return to starting 452857, 2421571; 452875, 2421567; point. (i) Unit 7 consists of the following 7 452890, 2421557; 452899, 2421542; (ii) Unit 5 is depicted on Map 3— boundary points with the following 452904, 2421531; 452907, 2421514; Units 5, 6, 7, and 8—below. coordinates in UTM Zone 4, with the 452908, 2421497; 452904, 2421480; (11) Unit 6—(2 ha (4 ac)): units in meters using North American 452899, 2421471; 452902, 2421454; (i) Unit 6 consists of the following 21 Datum of 1983 (NAD83): Start at 452900, 2421439; 452894, 2421422; boundary points with the following 452623, 2421100; 452812, 2421077; 452891, 2421412; 452891, 2421402; coordinates in UTM Zone 4, with the 452831, 2421041; 452816, 2421016; 452888, 2421385; 452880, 2421368; units in meters using North American 452786, 2420896; 452590, 2420946; 452871, 2421355; 452844, 2421338; Datum of 1983 (NAD83): Start at 452608, 2421015; return to starting 452822, 2421335; 452799, 2421339; 453052, 2420607; 453065, 2420616; point. 452778, 2421357; return to starting 453078, 2420622; 453101, 2420626; (ii) Unit 7 is depicted on Map 3— point. 453126, 2420621; 453139, 2420616; Units 5, 6, 7, and 8—below. (ii) Unit 8 is depicted on Map 3— 453154, 2420606; 453164, 2420591; (13) Unit 8—(2 ha (7 ac)): Units 5, 6, 7, and 8—which follows:

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(14) Unit 9—(1 ha (4 ac)): (ii) Note: Unit 9 is depicted on Map 453053, 2422133; 453053, 2422102; (i) Unit 9 consists of the following 5 4—Units 9 and 10—below. 453061, 2422078; 453074, 2422029; boundary points with the following (15) Unit 10—(14 ha (35 ac)): 453002, 2421944; 453015, 2421922; coordinates in UTM Zone 4, with the (i) Unit 10 consists of the following 14 453022, 2421892; 452896, 2421910; units in meters using North American boundary points with the following 452733, 2421917; 452705, 2421959; Datum of 1983 (NAD83): Start at coordinates in UTM Zone 4, with the return to starting point. 452568, 2422604; 452577, 2422610; units in meters using North American 452696, 2422521; 452580, 2422429; Datum of 1983 (NAD83): Start at (ii) Note: Unit 10 is depicted on Map 452537, 2422471; return to starting 452688, 2421988; 452834, 2422427; 4—Units 9 and 10—which follows: point. 453145, 2422210; 453061, 2422147;

(16) Unit 11—(4 ha (10 ac)): 453887, 2419718; 453912, 2419742; 454420, 2420147; 454475, 2420133; (i) Unit 11 consists of the following 17 453936, 2419768; return to starting 454502, 2420080; 454474, 2420055; boundary points with the following point. 454366, 2419954; 454341, 2419944; coordinates in UTM Zone 4, with the (ii) Note: Unit 11 is depicted on Map 454321, 2419921; 454311, 2419895; units in meters using North American 5—Units 11 and 12—below. 454286, 2419903; 454264, 2419927; Datum of 1983 (NAD83): Start at (17) Unit 12 (6 ha (16 ac)): 454229, 2419962; 454208, 2419993; 453958, 2419773; 453976, 2419766; (i) Unit 12 consists of the following 21 454186, 2420038; 454169, 2420058; 453999, 2419741; 454054, 2419702; boundary points with the following 454145, 2420086; 454112, 2420103; 454068, 2419667; 454060, 2419596; coordinates in UTM Zone 4, with the 454120, 2420133; return to starting 454042, 2419553; 454005, 2419528; units in meters using North American point. 453962, 2419521; 453894, 2419545; Datum of 1983 (NAD83): Start at 453872, 2419573; 453862, 2419600; 454185, 2420229; 454242, 2420243; (ii) Note: Unit 12 is depicted on Map 453852, 2419642; 453862, 2419676; 454326, 2420241; 454387, 2420207; 5—Units 11 and 12—which follows:

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(18) Unit 13—(21 ha (52 ac)): 455014, 2418947; 455014, 2419015; 456627, 2419981; 456656, 2420036; (i) Unit 13 consists of the following 43 454926, 2419043; 455027, 2419064; 456682, 2420173; 456709, 2420316; boundary points with the following 455102, 2419103; 455202, 2419192; 456718, 2420343; 456704, 2420433; coordinates in UTM Zone 4, with the 455255, 2419258; 455300, 2419334; 456723, 2420583; 456747, 2420580; units in meters using North American 455508, 2419515; 455586, 2419614; 456771, 2420584; 456786, 2420569; Datum of 1983 (NAD83): Start at 455664, 2419674; 455767, 2419730; 456848, 2420572; 456979, 2420634; 457108, 2420666; 457027, 2420606; 455859, 2419764; 455969, 2419780; 457022, 2420649; return to starting 456763, 2420391; 456727, 2419912; 456212, 2419805; 456272, 2419811; point. 456456, 2419772; 455868, 2419764; 456376, 2419831; 456451, 2419859; 455633, 2419645; 455601, 2419531; (ii) Note: Unit 13 is depicted on Map 456531, 2419900; 456583, 2419935; 455389, 2419219; 455225, 2419029; 6—Unit 13—which follows:

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(19) Unit 14—(39 ha (96 ac)): 457755, 2421170; 457901, 2421204; 458932, 2422252; 458997, 2422153; (i) Unit 14 consists of the following 47 458025, 2421342; 458025, 2421367; Coastline. 458706, 2421920; 458670, boundary points with the following 458078, 2421412; 458078, 2421413; 2421988; 458662, 2422059; 458688, coordinates in UTM Zone 4, with the 458078, 2421413; 458184, 2421510; 2422116; 458778, 2422112; 458809, units in meters using North American 458226, 2421607; 458226, 2421607; 2422160; 458719, 2422266; 458630, Datum of 1983 (NAD83): Coastline. 458226, 2421607; 458259, 2421727; 2422266; 458556, 2422191; 458563, 457575, 2420977; 457548, 2420981; 458308, 2421809; 458371, 2421876; 2422061; 458479, 2421989; 458500, 457598, 2421002; 457624, 2421039; 458405, 2421905; 458237, 2422080; 2421803. 457624, 2421039; 457624, 2421039; 458301, 2422271; 458346, 2422339; (ii) Note: Unit 14 is depicted on Map 457664, 2421105; 457715, 2421146; 458686, 2422403; 458785, 2422371; 7—Unit 14—which follows:

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* * * * * living, nontoxic plants such as, but not structural foundations, septic tanks, city (h) Crustaceans. limited to, ohia (Metrosideros sewage and drainage systems, or water * * * * * polymorpha), maiapilo (Capparis or underground electrical supply Kauai cave amphipod sandwichiana), and aalii (Dodonea corridors; paved roads; and areas (Spelaeorchestia koloana) viscosa). previously or currently used as a quarry. (3) All critical habitat areas contain (1) Critical habitat units are depicted (ii) Areas that have been modified on one or more of the primary constituent the surface but without trenching, for the island of Kauai, Hawaii, on the elements for the Kauai cave amphipod. maps below. filling, or excavation resulting in below- (4)(i) Existing human-constructed surface modification or alteration are (2) The primary constituent elements features and structures within the for the Kauai cave amphipod are: included in the critical habitat boundaries of mapped units that designation, even if they are adjacent to (i) The presence of subterranean involved trenching, filling, or spaces from 5 mm to 25 cm (0.2 in to areas that have undergone below-surface excavation resulting in below-surface modification. 10 in) at their narrowest point modification or alteration would not (collectively termed ‘‘mesocaverns’’) contain either of the primary constituent (5) Critical habitat units are described and/or cave passages greater than 25 cm elements and are excluded from critical below. Coordinates in UTM Zone 4 with (>10 in); habitat designation. Such features and units in meters using North American (ii) Dark and/or stagnant air zones that structures include but are not limited to: Datum of 1983 (NAD83). The following maintain relative humidity at saturation Homes and buildings for which the map shows the general locations of the levels (≥100 percent); and underlying bedrock has been altered for 14 critical habitat units designated on (iii) The presence in these types of their construction or through the island of Kauai. mesocaverns or caves of roots from incorporation of or connection to buried (i) Note: Map 1—Index map follows:

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(6) Unit 1—(<1 ha (1 ac)): (i) Unit 2 consists of the following 16 (8) Unit 3—(6 ha (16 ac)): (i) Unit 1 consists of the following 10 boundary points with the following (i) Unit 3 consists of the following 14 boundary points with the following coordinates in UTM Zone 4, with the boundary points with the following coordinates in UTM Zone 4, with the units in meters, using North American coordinates in UTM Zone 4, with the units in meters, using North American Datum of 1983 (NAD83): Start at units in meters using North American Datum of 1983 (NAD83): Start at 451483, 2420974; 451539, 2420991; Datum of 1983 (NAD83): Start at 451583, 2421015; 451622, 2421014; 450554, 2420457; 450546, 2420468; 450881, 2419947; 450879, 2419981; 451667, 2420984; 451677, 2420926; 450576, 2420510; 450586, 2420518; 450855, 2420053; 450859, 2420089; 451680, 2420869; 451705, 2420799; 450607, 2420516; 450624, 2420502; 450903, 2420089; 451012, 2420125; 451622, 2420769; 451650, 2420664; 450625, 2420480; 450618, 2420452; 451058, 2420191; 451138, 2420180; 451488, 2420620; 451468, 2420624; 451184, 2420119; 451159, 2420048; 450600, 2420437; 450574, 2420434; 451433, 2420642; 451470, 2420758; 451194, 2420014; 451183, 2419982; return to starting point. 451501, 2420801; 451510, 2420870; 451136, 2419987; 451114, 2419892; (ii) Note: Unit 1 is depicted on Map return to starting point. return to starting point. 2—Units 1, 2, 3, and 4—below. (ii) Note: Unit 2 is depicted on Map (ii) Note: Unit 3 is depicted on Map (7) Unit 2—(7 ha (16 ac)): 2—Units 1, 2, 3, and 4—below. 2—Units 1, 2, 3, and 4—below.

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(9) Unit 4—(2 ha (6 ac)): 451994, 2419844; 451989, 2419867; 452206, 2419899; 452201, 2419876; (i) Unit 4 consists of the following 33 451994, 2419890; 452007, 2419910; 452188, 2419856; 452172, 2419844; boundary points with the following 452027, 2419923; 452045, 2419927; 452153, 2419835; 452132, 2419822; coordinates in UTM Zone 4, with the 452053, 2419932; 452076, 2419936; 452123, 2419817; 452099, 2419812; units in meters using North American 452082, 2419936; 452084, 2419936; 452093, 2419812; return to starting Datum of 1983 (NAD83): Start at 452090, 2419939; 452095, 2419942; point. 452087, 2419809; 452063, 2419804; 452096, 2419943; 452118, 2419954; 452053, 2419805; 452040, 2419807; 452145, 2419960; 452168, 2419955; (ii) Note: Unit 4 is depicted on Map 452027, 2419811; 452007, 2419824; 452188, 2419942; 452201, 2419922; 2—Units 1, 2, 3, and 4—which follows:

(10) Unit 5—(1 ha (2 ac)): 452568, 2420704; 452570, 2420692; (i) Unit 6 consists of the following 21 (i) Unit 5 consists of the following 35 452568, 2420680; 452564, 2420673; boundary points with the following boundary points with the following 452553, 2420660; 452556, 2420649; coordinates in UTM Zone 4, with the coordinates in UTM Zone 4, with the 452557, 2420641; 452557, 2420637; units in meters using North American units in meters using North American 452554, 2420613; 452555, 2420611; Datum of 1983 (NAD83): Start at Datum of 1983 (NAD83): Start at 452555, 2420607; 452553, 2420595; 453052, 2420607; 453065, 2420616; 452493, 2420608; 452493, 2420613; 452546, 2420585; 452536, 2420579; 453078, 2420622; 453101, 2420626; 452493, 2420616; 452496, 2420639; 452525, 2420576; 452513, 2420579; 453126, 2420621; 453139, 2420616; 452492, 2420652; 452491, 2420660; 452503, 2420585; 452496, 2420595; 453154, 2420606; 453164, 2420591; 452492, 2420669; 452497, 2420683; 452494, 2420602; return to starting 453167, 2420579; 453169, 2420551; 452498, 2420686; 452502, 2420694; point. 453165, 2420533; 453156, 2420517; 452516, 2420711; 452518, 2420713; (ii) Unit 5 is depicted on Map 3— 453141, 2420500; 453127, 2420490; 452528, 2420720; 452540, 2420722; Units 5, 6, 7, and 8—below. 453109, 2420486; 453078, 2420490; 452552, 2420720; 452561, 2420713; (11) Unit 6—(2 ha (4 ac)): 453053, 2420505; 453042, 2420522;

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453034, 2420543; 453032, 2420559; 452608, 2421015; return to starting 452831, 2421567; 452848, 2421571; 453036, 2420585; return to starting point. 452857, 2421571; 452875, 2421567; point. (ii) Unit 7 is depicted on Map 3— 452890, 2421557; 452899, 2421542; (ii) Unit 6 is depicted on Map 3— Units 5, 6, 7, and 8—below. 452904, 2421531; 452907, 2421514; Units 5, 6, 7, and 8—below. (13) Unit 8—(2 ha (7 ac)): 452908, 2421497; 452904, 2421480; (i) Unit 8 consists of the following 33 452899, 2421471; 452902, 2421454; (12) Unit 7—(3 ha (9 ac)): boundary points with the following 452900, 2421439; 452894, 2421422; (i) Unit 7 consists of the following 7 coordinates in UTM Zone 4, with the 452891, 2421412; 452891, 2421402; boundary points with the following units in meters using North American 452888, 2421385; 452880, 2421368; coordinates in UTM Zone 4, with the Datum of 1983 (NAD83): Start at 452871, 2421355; 452844, 2421338; units in meters using North American 452763, 2421383; 452759, 2421402; 452822, 2421335; 452799, 2421339; Datum of 1983 (NAD83): Start at 452760, 2421421; 452767, 2421462; 452778, 2421357; return to starting 452623, 2421100; 452812, 2421077; 452766, 2421477; 452768, 2421497; point. 452831, 2421041; 452816, 2421016; 452771, 2421510; 452780, 2421523; (ii) Unit 8 is depicted on Map 3— 452786, 2420896; 452590, 2420946; 452812, 2421556; 452824, 2421564; Units 5, 6, 7, and 8—which follows:

(14) Unit 9—(1 ha (4 ac)): 452537, 2422471; return to starting Datum of 1983 (NAD83): Start at (i) Unit 9 consists of the following 5 point. 452688, 2421988; 452834, 2422427; boundary points with the following (ii) Note: Unit 9 is depicted on Map 453145, 2422210; 453061, 2422147; coordinates in UTM Zone 4, with the 4—Units 9 and 10—below. 453053, 2422133; 453053, 2422102; (15) Unit 10—(14 ha (35 ac)): units in meters using North American 453061, 2422078; 453074, 2422029; (i) Unit 10 consists of the following 14 Datum of 1983 (NAD83): Start at 453002, 2421944; 453015, 2421922; boundary points with the following 453022, 2421892; 452896, 2421910; 452568, 2422604; 452577, 2422610; coordinates in UTM Zone 4, with the 452696, 2422521; 452580, 2422429; units in meters using North American

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452733, 2421917; 452705, 2421959; (ii) Note: Unit 10 is depicted on Map return to starting point. 4—Units 9 and 10—which follows:

(16) Unit 11—(4 ha (10 ac)): 453887, 2419718; 453912, 2419742; 454420, 2420147; 454475, 2420133; (i) Unit 11 consists of the following 17 453936, 2419768; return to starting 454502, 2420080; 454474, 2420055; boundary points with the following point. 454366, 2419954; 454341, 2419944; coordinates in UTM Zone 4, with the (ii) Note: Unit 11 is depicted on Map 454321, 2419921; 454311, 2419895; units in meters using North American 5—Units 11 and 12—below. 454286, 2419903; 454264, 2419927; Datum of 1983 (NAD83): Start at (17) Unit 12 (6 ha (16 ac)): 454229, 2419962; 454208, 2419993; 453958, 2419773; 453976, 2419766; (i) Unit 12 consists of the following 21 454186, 2420038; 454169, 2420058; 453999, 2419741; 454054, 2419702; boundary points with the following 454145, 2420086; 454112, 2420103; 454068, 2419667; 454060, 2419596; coordinates in UTM Zone 4, with the 454120, 2420133; return to starting 454042, 2419553; 454005, 2419528; units in meters using North American point. 453962, 2419521; 453894, 2419545; Datum of 1983 (NAD83): Start at 453872, 2419573; 453862, 2419600; 454185, 2420229; 454242, 2420243; (ii) Note: Unit 12 is depicted on Map 453852, 2419642; 453862, 2419676; 454326, 2420241; 454387, 2420207; 5—Units 11 and 12—which follows:

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(18) Unit 13—(21 ha (52 ac)): 455014, 2418947; 455014, 2419015; 456627, 2419981; 456656, 2420036; (i) Unit 13 consists of the following 43 454926, 2419043; 455027, 2419064; 456682, 2420173; 456709, 2420316; boundary points with the following 455102, 2419103; 455202, 2419192; 456718, 2420343; 456704, 2420433; coordinates in UTM Zone 4, with the 455255, 2419258; 455300, 2419334; 456723, 2420583; 456747, 2420580; units in meters using North American 455508, 2419515; 455586, 2419614; 456771, 2420584; 456786, 2420569; Datum of 1983 (NAD83): Start at 455664, 2419674; 455767, 2419730; 456848, 2420572; 456979, 2420634; 457108, 2420666; 457027, 2420606; 455859, 2419764; 455969, 2419780; 457022, 2420649; return to starting 456763, 2420391; 456727, 2419912; 456212, 2419805; 456272, 2419811; point. 456456, 2419772; 455868, 2419764; 456376, 2419831; 456451, 2419859; 455633, 2419645; 455601, 2419531; (ii) Note: Unit 13 is depicted on Map 456531, 2419900; 456583, 2419935; 455389, 2419219; 455225, 2419029; 6—Unit 13—which follows:

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(19) Unit 14—(39 ha (96 ac)): 457755, 2421170; 457901, 2421204; 458932, 2422252; 458997, 2422153; (i) Unit 14 consists of the following 47 458025, 2421342; 458025, 2421367; Coastline. 458706, 2421920; 458670, boundary points with the following 458078, 2421412; 458078, 2421413; 2421988; 458662, 2422059; 458688, coordinates in UTM Zone 4, with the 458078, 2421413; 458184, 2421510; 2422116; 458778, 2422112; 458809, units in meters using North American 458226, 2421607; 458226, 2421607; 2422160; 458719, 2422266; 458630, Datum of 1983 (NAD83): Coastline. 458226, 2421607; 458259, 2421727; 2422266; 458556, 2422191; 458563, 457575, 2420977; 457548, 2420981; 458308, 2421809; 458371, 2421876; 2422061; 458479, 2421989; 458500, 457598, 2421002; 457624, 2421039; 458405, 2421905; 458237, 2422080; 2421803. 457624, 2421039; 457624, 2421039; 458301, 2422271; 458346, 2422339; (ii) Note: Unit 14 is depicted on Map 457664, 2421105; 457715, 2421146; 458686, 2422403; 458785, 2422371; 7—Unit 14—which follows:

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Dated: March 27, 2003. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 03–8180 Filed 4–8–03; 8:45 am] BILLING CODE 4310–55–P

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Part III

Department of Labor Employee Benefits Security Administration

29 CFR Part 2510 and 2570 Employee Retirement Income Security Act of 1974; Procedures for Administrative Hearings Regarding Plans Established or Maintained Under or Pursuant to Collective Bargaining Agreements Under Section 3(40)(A) of ERISA; Final Rule

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DEPARTMENT OF LABOR Labor, 200 Constitution Avenue, NW., individuals and employers with no Room N–5669, Washington, DC 20210, relationship to the bargaining process or Employee Benefits Security (202) 693–8510. This is not a toll-free the underlying bargaining agreement. Administration number. The definition of a MEWA in section SUPPLEMENTARY INFORMATION: 3(40) was drafted to exclude certain 29 CFR Part 2510 types of plans. As pertains to this A. Background rulemaking, section 3(40)(A)(i) of ERISA RIN 1210–AA48 The Statute provides that employee welfare benefit Employee Retirement Income Security plans that are found by the Secretary of Section 3(40) of ERISA defines the Labor (the Secretary) to be established Act of 1974; Plans Established or term multiple employer welfare Maintained Under or Pursuant to or maintained under or pursuant to one arrangement (MEWA), in pertinent part, or more collective bargaining Collective Bargaining Agreements as an employee welfare benefit plan, or Under Section 3(40)(A) of ERISA agreements are not MEWAs for purposes any other arrangement (other than an of ERISA. Such collectively bargained AGENCY: Employee Benefits Security employee welfare benefit plan), which plans, as a result, were not made subject Administration, Labor. is established or maintained for the to the regulatory jurisdiction of the purpose of offering or providing any ACTION: Final rule. states pursuant to the MEWA benefit described in paragraph (1) of amendments. SUMMARY: This document contains a section 3 of the Act to the employees of The Department of Labor (the regulation under the Employee two or more employers (including one Department) notes that also appearing in Retirement Income Security Act of 1974, or more self-employed individuals), or today’s Federal Register are final as amended, (ERISA or the Act) setting to their beneficiaries, except that such regulations relating to filing the Form forth specific criteria that, if met and if term does not include any such plan or M–1 and Civil Monetary Penalties for certain other factors set forth in the other arrangement which is established failure or refusal to file the Form M–1. regulation are not present, constitute a or maintained under or pursuant to one For information on the Form M–1 and finding by the Secretary of Labor (the or more agreements which the Secretary related civil monetary penalties, contact Secretary) that a plan is established or finds to be collective bargaining Deborah S. Hobbs or Amy J. Turner, maintained under or pursuant to one or agreements. Employee Benefits Security This definition was added to ERISA more collective bargaining agreements Administration, U.S. Department of by the Multiple Employer Welfare for purposes of section 3(40) of ERISA. Labor, Room C–5331, 200 Constitution Arrangement Act of 1983, Sec. 302(b), Employee welfare benefit plans, such as Ave., NW., Washington, DC 20210 Pub. L. 97–473, 96 Stat. 2611, 2612 (29 health care plans, that meet the (telephone (202) 693–8335) (this is not U.S.C. 1002(40)) (the MEWA requirements of the regulation are a toll-free number). amendments), which also amended excluded from the definition of section 514(b) of ERISA to narrow the The Proposed Regulations ‘‘multiple employer welfare scope of federal preemption of state arrangements’’ under section 3(40) of On October 27, 2000, the Department laws applicable to MEWAs. The ERISA and consequently are not subject published a notice in the Federal purpose of the MEWA amendments to state regulation of multiple employer Register (65 FR 64482) containing a generally was to permit states to welfare arrangements as provided for by proposed regulation (the criteria regulate employee welfare benefit plans the Act. Regulations published regulation) setting forth specific criteria that are MEWAs; the extent of the states’ elsewhere in this issue of the Federal that, if met in the case of a specific plan, jurisdiction over such entities under the and provided that certain other factors Register set forth a procedure for MEWA amendments depends on set forth in the proposed regulation are obtaining a determination by the whether or not the MEWA is fully not present, would constitute a finding Secretary as to whether a particular insured. Sec. 302(b), Pub.L. 97–473, 96 by the Secretary pursuant to section employee welfare benefit plan is Stat. 2611, 2613 (29 U.S.C. 1144(b)(6)). 3(40)(A)(i) of ERISA that a plan is established or maintained under or The Multiple Employer Welfare established or maintained under or pursuant to one or more agreements that Arrangement Act of 1983, which was pursuant to one or more collective are collective bargaining agreements for introduced to counter what the bargaining agreements for purposes of purposes of section 3(40) of ERISA. The Congressional drafters termed abuse by section 3(40) of ERISA. The Department procedure is available only in situations the ‘‘operators of bogus ‘insurance’ also simultaneously published in the where the jurisdiction or law of a state trusts,’’ see 128 Cong. Rec. E2407 (1982) Federal Register (65 FR 64498) has been asserted against an entity that (Statement of Congressman Erlenborn), proposed regulations (the procedural contends it meets the exception for significantly enhanced the states’ ability regulations) that set forth an plans established or maintained under to regulate MEWAs. Nevertheless, administrative procedure for obtaining, or pursuant to one or more collective problems in this area persist. Among under certain limited circumstances, an bargaining agreements. This regulation other things, the exception for individualized determination by the is intended to assist labor organizations, collectively bargained plans contained Secretary as to whether a particular plan sponsors and state insurance in section 3(40) has been exploited by employee welfare benefit plan is departments in determining whether a some MEWA operators who, through established or maintained under or plan is a ‘‘multiple employer welfare the use of sham unions and collective pursuant to one or more agreements that arrangement’’ within the meaning of bargaining agreements, market are collective bargaining agreements for section 3(40) of ERISA. fraudulent insurance schemes under the purposes of section 3(40) of ERISA. EFFECTIVE DATE: June 9, 2003. guise of collectively bargained welfare The proposed regulations followed FOR FURTHER INFORMATION CONTACT: plans exempt from state insurance the recommendations of the ERISA Elizabeth A. Goodman, Office of regulation. Another problem in this area section 3(40) Negotiated Rulemaking Regulations and Interpretations, involves the use of collectively Advisory Committee (the Committee). Employee Benefits Security bargained plans as vehicles for The Committee was convened under the Administration, U.S. Department of marketing health care coverage to Negotiated Rulemaking Act (the NRA)

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and the Federal Advisory Committee The proposed criteria regulation also noted that newly established unions, Act (the FACA), 5 U.S.C. App. 2, to specified circumstances that, if present, particularly those organizing in the assist the Department in developing would lead to a conclusion that an health care field, might have difficulty proposed regulations to implement employee welfare benefit plan is not meeting four of the eight factors. That section 3(40)(A)(i) of ERISA, 29 U.S.C. established or maintained under or commenter suggested that an additional 1002(40)(A)(i). pursuant to one or more agreements that factor—that the welfare plan was being The criteria regulation set forth the Secretary finds to be collective administered along sound actuarial standards that, if satisfied, would bargaining agreements. The regulation principles—be added to the list of constitute a finding by the Secretary that stated that, for any plan year in which factors. The commenter also suggested a plan is established or maintained the specified circumstances were that the examples set out as part of the under or pursuant to one or more present, a plan that otherwise met the non-specific ninth factor be listed collective bargaining agreements for criteria of the regulation should not be individually as separate factors that purposes of section 3(40). deemed to be excluded from the MEWA could be counted towards meeting the The proposed regulation established definition by virtue of section ‘‘safe harbor.’’ four general criteria for a finding that a 3(40)(A)(i). In discussing these comments, the plan was established or maintained The proposed regulation provided Committee noted that these issues were under or pursuant to collective that, under certain limited not new and had been considered by the bargaining for purposes of section circumstances, an entity would be Committee in its initial deliberations. It 3(40)(A)(i). First, the entity in question permitted to petition the Secretary for was noted that the language of the had to be an employee welfare benefit an individual finding. The ability to proposed regulation went as far as plan within the meaning of ERISA petition, however, would arise under possible to be inclusive of various types section 3(1). Second, the preponderance the proposed regulation only if a state’s of collective bargaining relationships. of those participants covered by the law or jurisdiction had been asserted The purpose of the ninth ‘‘catch-all’’ plan (at least 80%) had to have a nexus against the entity in an administrative or factor is to take into account that the judicial proceeding. The procedural to the bargaining relationships under or eight specific factors may not regulations set forth specific processes pursuant to which the plan was encompass all bona fide collective for petitioning for an individual finding. established or maintained (referred to as bargaining relationships. Concerns were the ‘‘nexus’’ group or test). Third, the Public Comments also expressed about lowering the agreements under or pursuant to which Subsequent to publication of the threshold for what constitutes a bona the plan is established or maintained proposed regulations, the Department fide collective bargaining relationship. had to have certain characteristics that received seven public comments. The Bona fide collectively bargained indicate that they were, for purposes of Department reconvened the Committee arrangements are not likely to be section 3(40) of ERISA only, collective and held a public meeting on March 1, challenged under the regulation by the bargaining agreements, including that 2002, to obtain the Committee’s views states. The consensus of the Committee the agreements were the product of a on the public comments. Minutes of this was that the eight factors should not be ‘‘bona fide collective bargaining meeting, as well as other meetings, of expanded or modified. relationship.’’ Fourth, the proposed the Committee are available for After consideration of the comments regulation listed eight specific ‘‘factors’’ inspection by the public in the and the Committee’s discussion, the deemed to indicate the existence, for Department’s Public Disclosure Room, Department has decided not to expand purposes of section 3(40) only, of a bona 200 Constitution Avenue, NW., N1513, or modify the factors presumptive of a fide collective bargaining relationship. If Washington, DC 20210. bona fide collective bargaining at least four of those specified factors The following discussion summarizes relationship. The final regulation were present, the regulation indicated the issues raised by the public therefore retains, in section 2510.3– that a bona fide collective bargaining comments, the Committee’s discussion 40(b)(4)(i)–(viii), the factors as originally relationship underlying the agreements of those issues at the public meeting, proposed. In the view of the under or pursuant to which the plan is and the Department’s decisions, which Department, the regulation carefully established or maintained could be are reflected in the final regulations. distinguishes between the specific presumed to exist. factors that generally evidence a bona The proposed criteria regulation 1. Whether the Factors Set Forth in the fide collective bargaining relationship included a ninth non-specific ‘‘factor’’ Proposed Criteria Regulation as and the types of activities and fact in the list. The ninth factor indicated Presumptive of Bona Fide Collective patterns that are common to sham that the Secretary would consider, in Bargaining Should Be Expanded or MEWA operators. Expanding or making a finding, whether ‘‘other Modified modifying the factors to include less objective or subjective indicia of actual Two commenters suggested that the well-established or less common collective bargaining and Department should expand the list of situations, or making any single factor a representation’’ were present. The factors indicative of a bona fide stand-alone safe-harbor, may make it inclusion of this ‘‘catch-all’’ factor collective bargaining relationship. One easier for sham MEWA operators to recognized that, in any particular case, commenter argued that such an mimic the regulation’s factors other facts might need to be taken into expansion is necessary to make sure that presumptive of a bona fide collective account to determine whether a bona small employers and employers in bargaining relationship. fide collective bargaining relationship manufacturing, warehousing, service The Department also declines to add existed, especially where the entity did and other non-construction related to the factors, as suggested by one not meet at least four of the eight industries could easily meet this commenter, the fact that the plan is specific factors, or where, despite criterion. The commenter further maintained on sound actuarial meeting four of the eight factors, there suggested that government certification principles. Although maintaining a plan were other facts indicating that a bona of a union, as a collective bargaining on sound actuarial principles is fide collective bargaining relationship agent should be a stand-alone safe important in other regards, that a plan did not exist. harbor factor. The other commenter is actuarially sound does not necessarily

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evidence the existence of a bona fide 2510.3–40 to provide that the conditions references the plan as described in collective bargaining relationship. of (b)(3) will be met if the written 2510.3–40(b)(3)(i). The Department notes, however, that agreement referencing the plan is 4. Whether the Regulation Should Be the final regulations are structured to between one or more employers, rather Expanded To Include Entities That Are take into account the possibility that a than two or more employers, and one or Not Collectively Bargained, i.e., Long- bona fide collective bargaining more employee organizations. relationship might, in some case, fail to Established MEWAs, Union-Only meet the ‘‘safe harbor’’ factors. In 3. Whether the Nexus Group Categories Sponsored Public Sector Benefit Plans addition to including the ninth catch-all Should Be Expanded or Modified The Department received two factor, the regulations permit entities As part of the process for determining comments suggesting that the regulation that assert they are in fact established or whether a preponderance of the should be expanded to include certain maintained under or pursuant to bona participants covered by the plan have a types of entities that technically are not fide collective bargaining, and against nexus to the bargaining relationships established or maintained under or which state law or jurisdiction is under or pursuant to which the plan is pursuant to collective bargaining. The asserted, to petition for an established or maintained, the proposed commenters were concerned that individualized finding from the criteria regulation defined a ‘‘nexus issuance of regulations providing clear Department as to their status. group’’ of categories of participants who guidance addressing what the Secretary could be counted towards the 80% finds to be collective bargaining for the 2. Whether the Definition of Collective coverage level set in the proposed purposes of the collective bargaining Bargaining Agreement Should Be regulation as demonstrating such a exception in 3(40) of ERISA might result Modified preponderance. One commenter in more state regulation of entities that The Department received one requested that the nexus group are not established pursuant to comment suggesting that the definition categories be expanded to include collective bargaining than there had of collective bargaining agreement in employees of an employer trade been in the absence of regulations. section 2510.3–(40)(b)(3) needed to be association that has negotiated any of The first commenter was a long- modified to correct a technical defect. the multiemployer agreements under or established MEWA that contended that As proposed, the regulation required pursuant to which a plan is established it should be excluded from the scope of that a plan be ‘‘incorporated or or maintained. The commenter noted the MEWA definition pursuant to a referenced in a written agreement that the proposed regulation included, ‘‘grandfather’’ provision in the between two or more employers and one as part of the nexus group, employees of regulation, allowing it to operate free of or more employee organizations.’’ The employee organizations that sponsor or state regulation even though it is not a commenter argued that the requirement jointly sponsor a plan, or are plan established or maintained under or of a minimum of two employers, rather represented on the committee, joint pursuant to collective bargaining, than one, was unnecessarily narrow, board of trustees, or other similar group because it had been operating on a since there may be situations where a of representatives of the parties who financially sound basis for many years. plan that originally was established or sponsor the plan. The commenter noted A similar comment had been previously maintained under or pursuant to a that employees of employer associations submitted to the Committee for collective bargaining agreement signed might have a similar connection to the consideration prior to the issuance of its by two or more employers, is now collective bargaining process. The Report to the Secretary. Another maintained only by one due to a commenter asserted that employer trade commenter requested that the preamble dwindling number of participating associations often are involved in to the regulation discuss the nature of employers, although the plan still negotiating collective bargaining legal defense funds for peace officers, covers the employees of more than one agreements on behalf of many which are established by employee employer. employers, and that such employers organizations for the employees of more The Committee, in discussing this routinely become signatories to, or than one employer, but are not actually issue, considered whether, in addition otherwise adopt, agreements that have the subject of collective bargaining. to the reasons articulated by the been negotiated by their employer The Committee reiterated its belief, as commenter, the language of paragraph associations. The multiemployer plans noted in the preamble to the proposed 2510.3–40(b)(3) should be changed to that result from such bargaining often criteria regulation, that the regulation make clear that the regulation applies to cover the employees of the employer should serve only to define what plans established or maintained under association as well as the employees of constitutes a plan that is established or or pursuant to collective bargaining by the employers represented by the maintained under or pursuant to a single employer but covering the association. collective bargaining. The Department employees of other employers who do The Committee concluded that, as a believes that the issues raised by these not bind themselves to the collective matter of parity, employees of an commenters go beyond the scope of the bargaining agreement. It was noted that authorized representative of employers regulation and, therefore, has such entities are MEWAs. The in collective bargaining should be determined not to modify the final Committee’s discussion focused on the included in the nexus group, just as are regulation in response to these fact that it is important for the employees of the employee comments. regulation to make clear that such organization. entities are subject to evaluation under Based on its consideration of the 5. Whether and How the Procedural the regulation to see whether in fact comment and the Committee’s Regulation Should Be Modified in Order they meet the exception under section discussion, the Department has To Obviate the Possibility That It May 3(40) for plans established or determined to amend 2530.3– Hinder or Impede Timely State maintained under or pursuant to 40(b)(2)(vi) to include, as a separate Enforcement Actions collective bargaining. category, the employees of an One commenter expressed concern On the basis of the public comment authorized employer representative that that the availability of administrative and the Committee’s discussion, the actually engaged in the collective proceedings for an individualized Department has determined to amend bargaining that led to the agreement that section 3(40) finding in cases where the

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jurisdiction or law of a state has been determining the ‘‘nexus’’ group. In this amounts payable by participants and asserted may result in delays in state regard, the Committee noted that the beneficiaries as co-payments or enforcement that could substantially nexus group in section 2510.3–40(b)(2) deductibles are disregarded for purposes hinder a state’s ability to take timely includes retirees who either participated of the 75% test. In so clarifying this enforcement actions against sham in the welfare benefit plan for at least provision, however, the Department MEWA operators. The commenter stated five of the last 10 years preceding their notes that if an entity were to establish that time is often of the essence in such retirement or are receiving benefits as a co-payment or deductible schedule circumstances and that a delay of even participants under a multiemployer designed solely to satisfy the criteria of a few days in a state’s taking effective pension benefit plan that is maintained paragraph 2510.3–40(b)(4)(vi), without action against a MEWA may seriously under the same agreement referred to in actually requiring substantial employer increase the harm to the participants in paragraph (b)(2)(i), and have at least five contributions, evidence of such a design the MEWA by permitting the amount of years of service or the equivalent under may be considered in evaluating unpaid medical benefit claims to that pension plan. The Committee whether for purposes of 2510.3–40(c)(3) increase, allowing the plan to collect suggested that participation in the pre- there is fraud, forgery, or willful additional illegal premiums, and merger multiemployer plans should also misrepresentation as to the factors relied impinging or eliminating the states’ be considered in determining whether on to demonstrate that the plan satisfies ability to preserve assets by giving the employees meet the requirements of the criteria set forth in paragraph (b) of plan operators and opportunity to these categories of the nexus group. The this section. The Department further transfer and hide funds. The commenter Committee also raised the issue of notes that the collective bargaining specifically identified the need to be whether employment in the bargaining able to obtain preliminary and history appropriately may be examined unit under the pre-merger plan should in a 3(40) proceeding, including a permanent injunctive relief and cease be considered for determining whether and desist orders where sham union review of those factors in section an individual is a bargaining unit 2510.3–40(b)(4). plans are continuing to collect alumnus under 2510.3–40(b)(2)(vii) premiums or failing to pay claims. The where the merger was based on a merger Independent of the Committee’s commenter asserted that, unless the of unions. The Committee noted that review of the regulations, the Department made clear that the Example 2 of the proposed regulation Department considered whether the availability of administrative addresses how a merger affects the proposed 80% minimum coverage proceedings was not meant to provide a evaluation of the factors in (b)(4)(iii) and requirement for the ‘‘nexus’’ test is too basis for a stay or delay of state (iv) and suggested that another example low. In the August 1, 1995, proposed enforcement actions, the regulations could be added to the final regulation to regulation, the Department proposed should not be implemented. address the effect of merging unions and that no less than 85% of the individuals Recognizing the need to ensure that multiemployer plans on the nexus covered by a plan must be within the the regulations assist, rather than group analysis. After considering the ‘‘nexus’’ group. A number of hinder, state enforcement efforts against issues raised by the Committee, the commenters on that regulation sham MEWA operators and that there Department has determined that it is expressed concern that the percentage are situations where time is of the appropriate to clarify the examples at was too high. In developing a new essence for effective enforcement by the 2510.3–40(e) to make clear that, in the proposal, the Committee recommended, states, the Committee recommended case of a merger of multiemployer plans, and the Department proposed, an 80% that the regulatory language be clarified participation in a predecessor plan or test. In this regard, the preamble to the to emphasize that the section 3(40) ALJ employment with a predecessor union proposal indicated that ‘‘[t]he proceedings are not a basis in may be considered for purposes of Committee recommended a 20% margin themselves for a stay-of-state determining the nexus group for coverage of non-nexus people, even administrative or judicial proceedings individuals in section 2510.3– though it understood that the percentage against a putative MEWA. As proposed, paragraph 2510.3– 40(b)(2)(ii) and (vii). In this regard, a of participants in collectively bargained 40(g)(2) of the criteria regulation new paragraph (3) was added to plans who are not within one of the provided that ‘‘nothing in this section or Example 2 to clarify that the merger of nexus categories is rarely likely to be in part 2570, subpart H of this chapter two unions and the related pension and that high.’’ 65 FR 64485 (Oct. 27, 2000). is intended to have any effect on health and welfare plans will not affect While comments were specifically applicable law relating to stay or delay the determinations of who is a ‘‘retiree’’ invited on the 80% test, no comments of a state administrative or court or a ‘‘bargaining unit alumni’’ for were received on that provision. proceeding or enforcement subpoena.’’ purposes of determining the nexus Moreover, the Department received no In response to the commenter and the group under the regulation. comments suggesting that changing the concerns of the Committee, the In reviewing the 75% test in 80% test to an 85% test would present Department has amended that paragraph paragraph (b)(4)(vi) of 2510.3–40, the a problem for affected plans. The to state that ‘‘nothing in this section or Department decided that the regulation Department further notes that H.R. 2563 in part 2570, subpart H of this chapter should be modified to make clear that of the 107th Congress, the ‘‘Bipartisan is intended to provide the basis for a in determining the amount of premiums Patients Protection Act,’’ as passed by stay or delay of a state administrative or or contributions to which the 75% test the U.S. House of Representatives, court proceeding or enforcement of a applies does not include any amount among other things, amends ERISA subpoena.’’ that a participant or beneficiary might section 3(40)(A)(i) to clarify the be required to pay as a co-pay or standards applicable to determining Miscellaneous Changes deductible under the provided coverage. whether a plan is established or In its consideration of a final Accordingly, the Department has maintained pursuant to collective regulation, the Committee questioned modified paragraph 2510.3–40(b)(4)(iv) bargaining agreements. See section 423 whether consideration should be given to make clear that, in addition to dental of H.R. 2563. Although similar in many to the effect of plan mergers on counting or vision care and coverage for excepted respects to the regulatory standards years of service for purposes of the benefits under 29 CFR 2590.732(b), proposed by the Department, H.R. 2563

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limits the percentage of non-nexus Executive Order, the Department has plans. In order to establish their group individuals to 15 percent. undertaken an assessment of the costs authority to regulate, states have had to On the basis of the comments, as well and benefits of this regulatory action. take additional steps, such as initiating as the discussions of the Committee, the This analysis is detailed below. administrative or legal proceedings Department does not believe that, in the contesting the defendant’s status as a Summary absence of any data to the contrary, collectively bargained plan, and have requiring 85% of the covered Although neither the benefits nor been the subject of actions initiated by individuals to be within the ‘‘nexus’’ costs have been fully quantified, the sham MEWA operators, such as suits for group, rather than 80%, will have any Department believes that the benefits of federal declaratory judgment or removal significant effect on the status of this final regulation more than justify its actions. otherwise bona fide collectively costs. The final regulation yields Confusion about whether a plan was bargained plans. Increasing the ‘‘nexus’’ positive benefits by reducing established or maintained under or group percentage to 85% should uncertainty over which welfare benefit pursuant to an agreement which the enhance the regulation’s deterrent effect plans are excepted from the definition Secretary finds to be a collective on sham MEWA operators who attempt of a multiple employer welfare bargaining agreement has made it to masquerade as collectively bargained arrangement under section 3(40) and are difficult for the states to enforce plans in order to avoid state insurance therefore not subject to state regulation. appropriate laws. The criteria regulation regulation and oversight. In an The Department sought comments from will reduce or eliminate this environment where problems with sham the public concerning its analysis of uncertainty. It will provide greater MEWA operators are growing, the benefits and costs of the proposed clarity for entities and states and reduce Department believes that any action it regulation. Having received no the time and expense attributable to can take to reduce the likelihood of comments, the Department has relied on court actions or requests to the health insurance fraud against workers its initial analysis in concluding that the Department for guidance. and their families is action that should benefits of the final regulation justify its Benefits of the Regulation—Reducing be taken. Accordingly, the Department costs. Uncertainty determined it appropriate to modify The regulation’s elements for paragraph (b)(2) of 2510.3–40 to require distinguishing collectively bargained Plans and arrangements will benefit that at least 85% of the participants in plans from MEWAs are verifiable from greater assurance concerning their the plan be within the ‘‘nexus’’ group through documentation that plans or actual legal status. States, through an (described in subparagraphs (i) through their agents generally maintain as part enhanced ability to regulate based on (x) of 2510.3–40(b)(2)). of usual business practices. The the greater certainty offered by the regulation also incorporates elements of regulation, will be better able to protect B. Economic Analysis Under Executive flexibility, allowing entities to employers, participants, and Order 12866 demonstrate the existence of a bona fide beneficiaries from unscrupulous MEWA Under Executive Order 12866, the collective bargaining agreement, one of operators. Further, the majority of plans Department must determine whether a the regulatory factors, by satisfying any established or maintained under or regulatory action is ‘‘significant’’ and four of eight specified factors. Finally, pursuant to collective bargaining therefore subject to the requirements of the regulation is both sufficiently broad agreements currently operate in a the Executive Order and subject to to include all plans established or manner that is consistent with the review by the Office of Management and maintained under or pursuant to one or regulation. Most entities will therefore Budget (OMB). Under section 3(f), the more collective bargaining agreements, not perceive any need to undertake a order defines a ‘‘significant regulatory yet is discriminating enough to ensure systematic reassessment of their status action’’ as an action that is likely to that state law will apply to entities not under the regulation. It is possible, result in a rule: (1) Having an annual meeting the criteria. Only a very small however, that some will choose to effect on the economy of $100 million number of entities are likely to be undertake such an assessment by or more, or adversely and materially treated differently as a result of ‘‘comparison testing’’ the plan’s affecting a sector of the economy, promulgation of this criteria regulation. operations against the ‘‘safe harbor’’ productivity, competition, jobs, the In the case of the few entities that will criteria established in the final environment, public health or safety, or be determined to be not collectively regulation. The Department has State, local, or tribal governments or bargained plans, the additional cost estimated below the number of entities communities (also referred to as attributable to state regulation is likely to undertake a status assessment ‘‘economically significant’’); (2) creating outweighed by the benefit that such and the costs likely to be associated serious inconsistency or otherwise state regulation will provide by way of with those activities. interfering with an action taken or additional protections for participants Costs of the Regulation planned by another agency; (3) and beneficiaries. materially altering the budgetary Entities Potentially Affected. To impacts of entitlement grants, user fees, Background estimate the number of entities or loan programs or the rights and It is the view of the Department that potentially affected by the final rule, the obligations of recipients thereof; or (4) the uncertainty created by the lack of Department examined available data on raising novel legal or policy issues clear criteria for distinguishing multiemployer welfare plans arising out of legal mandates, the collectively bargained plans from established or maintained under or President’s priorities, or the principles MEWAs has encouraged unscrupulous pursuant to collective bargaining set forth in the Executive Order. operators of sham MEWAs in attempts agreements, and the number of entities Pursuant to the terms of the Executive to escape or delay state regulatory self-reporting as MEWAs. Under ERISA, Order, it has been determined that this efforts by asserting that states lack multiemployer collectively bargained action is ‘‘significant’’ within the jurisdiction to regulate such entities plans are required to file an annual meaning of 3(f)(4), and therefore subject because they are excluded from the financial report, the Form 5500. MEWAs to review by the Office of Management definition of MEWA by reason of the are required to file the Form M–1 and Budget (OMB). Consistent with the exception for collectively bargained annually. The 1998 Form 5500 filings by

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multiemployer collectively bargained the number of entities whose status regulation’s criteria. Entities that plans numbered about 2,000 (with about could be made more certain by issuance formerly considered themselves to be 6 million participants). The MEWAs of this regulation. On one hand, because excluded from the MEWAs definition as that filed Form M–1 for the year 2000, some number of entities may confront collectively bargained plans may be pursuant to section 101 of ERISA and uncertainty without becoming either the required under the criteria regulation to related interim final rules (65 FR 7152, subject of an inquiry addressed to the classify themselves as MEWAs. These February 11, 2000) numbered about 600 Department or a lawsuit to which the MEWAs will likely incur costs to 1 (with about 2 million participants). The Department is party, this estimate may comply with newly applicable state total number of MEWAs and represent only a subset of the entities requirements. Such requirements vary that face uncertainty over their status. collectively bargained plans, which from state to state, making it difficult to represents the total universe of On the other hand, this estimate may estimate the cost of compliance, but it arrangements that might have questions overstate the number of entities that face is likely that costs might include those about their legal status and ‘‘comparison uncertainty because it is known that not test’’ under this regulation, is estimated all requests to the Department or court attributable to audits, funding and at about 2,600 (8 million participants). actions actually raised issues related reserves, reporting, premium taxes and The Department was unable to directly to the collective bargaining assessments, provision of state- identify any direct measure of the exception under section 3(40). mandated benefits, underwriting and number of entities whose status is Assessment of Status. The rating rules, market conduct standards, uncertain or whose status would remain Department estimates the cost to the 54 and managed care patient protection uncertain under the regulation. entities of conducting an assessment of rules, among other costs. These costs Therefore, in order to assess the their status under the regulation to be may be higher for those MEWAs that economic impact of reduced uncertainty small. Such cost would be largely conduct business in more than one under the regulation, the Department generated by reviewing records kept by state. third parties or by the entity in the examined proxies for the number of Relevant literature suggests these ordinary course of business. The entities that might be subject to such costs can amount to ten percent of Department assumes that such a review uncertainty. After estimating the total premium.2 The cost may be number of MEWAs and collectively requires 16 hours of an attorney’s or substantially more if a state regulates bargained plans at 2,600, the comparable professional’s time, plus 5 premium rates and the entity otherwise Department then tallied the number of hours of clerical staff time. At $72 per inquiries to the Department concerning hour and $21 per hour respectively, the would have benefited from insuring a MEWAs and the number of MEWA- total cost would be $1,173 per entity, or population whose health costs are far related lawsuits to which the about $63,342 on aggregate per year for lower than average. However, these Department has been party, taking this 54 entities. This cost would be incurred added costs are transfers and not true to represent a reasonable indicator of only once for a given entity unless its economic costs because they serve as the number of entities that have been circumstances changed substantially cross-subsidies that reduce costs for subject to uncertainty in the past. relative to the standard. The Department populations that are costlier than Department data indicate that in believes that the cost is more than average. recent years, the Department has justified by savings to entities that, by As noted above, the universe of 2,600 conducting this assessment, avoid the received an average of about nine entities that includes those potentially need to engage in litigation or seek MEWA-related requests for information subject to uncertainty covers 8 million guidance from the Department in order each year from state and federal participants, or about 3,100 participants agencies and the private sector. The to determine their status. These net savings represent a net benefit of this per entity on average. Industry surveys Department also considered the number put the cost of health coverage at about of MEWA-related lawsuits that were regulation. $4,500 per employee and retiree per filed by the Department in recent years. Following a self-assessment of status, year. Applying these figures to 54 An average of about 45 actions have some fraction of these 54 entities might been brought each year. For purposes of nonetheless find themselves in a entities that might face uncertainty over this analysis, it has been assumed that situation leading them to seek an status—an upper bound on the number each case involved a different MEWA. administrative determination from the likely to be reclassified—produces an Accordingly, the Department has Secretary under the procedural estimated for purposes of this economic regulations, incurring attendant costs, 2 Data from the Health Insurance Association of perhaps because a state’s jurisdiction or America (Source Book of Health Insurance Data, analysis that approximately 54 entities 1999–2000) suggests that insurance companies’ loss (45 + 9) annually may have reason to be laws are asserted against the entity. The administrative process under the ratios for group health insurance policies uncertain about their legal status with historically ranged from about 85 percent to 90 respect to section 3(40) of ERISA, or procedural regulations is, in the percent. The inverse of the loss ratio, or about 10 Department’s view, an efficient and less percent to 15 percent, generally would include all about two percent of the estimated total of these costs except those associated with benefit number of 2,600 MEWAs and costly process for resolving such disputes than would be available in the mandates and some managed care protections, as collectively bargained plans. well as insurance company profits, income taxes, The Department views this absence of the procedural regulations. and normal administrative overhead. Loss ratios approximate number of 54 entities per The Department has elected to attribute tend to be higher (and these costs lower) for larger year as a conservatively high estimate of the net benefit from these savings not to group policies, and MEWAs are likely to be large. this regulation, but to the accompanying The cost of benefit mandates and managed care protection will very across states depending on 1 This represents a smaller number of plans and procedural regulations. their extent and across MEWAs depending largely fewer participants than the numbers projected at Reclassifying Incorrectly Classified on the degree to which they otherwise are included the time of the proposal. Because the Form M–1 Entities. Some number of entities, voluntarily in the insurance products they provide. requirement had not been fully implemented at the generally a subset of the 54 estimated One study estimated that mandates raise premiums time of the proposal, actual information on its use by between 4 percent and 13 percent (Gail A. Jensen was not available, and the Department relied on annually to face uncertainty over status, and Michael A. Morrisey, Mandated Benefit Laws survey data regarded as the most comparable at the will be reclassified as a result of and Employer-Sponsored Health Insurance time. comparison testing against the (Washington, DC: HIAA 1999)).

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upper-bound estimated cost of about C. Paperwork Reduction Act standards promulgated by the Small 3 $75 million. This Notice of Final Rulemaking is Business Administration (SBA) (13 CFR The Department has concluded that not subject to the requirements of the 121.201) pursuant to the Small Business actual costs will be far lower than this Paperwork Reduction Act of 1995 (44 Act (15 U.S.C. 631 et seq.). At the time of the proposed rule, EBSA requested and will be outweighed by the benefit U.S.C. 3501 et seq.) because it does not comments on the appropriateness of the of the associated protections that will contain a ‘‘collection of information’’ as size standard used in evaluating the flow from clarifying the state’s authority defined in 44 U.S.C. 3502(3). impact of this rule on small entities; no to regulate. As noted above, it is likely D. Regulatory Flexibility Act comments were received that would that the true number of entities that are The Regulatory Flexibility Act (5 cause the Department to reevaluate its reclassified as MEWAs will be a fraction size standard. of the estimated 54 that annually might U.S.C. 601 et seq.) (RFA) imposes certain requirements with respect to On this basis, however, EBSA has face uncertainty over status. Among determined that this rule will not have those that are reclassified, certain Federal rules that are subject to the notice and comment requirements of a significant economic impact on a entities likely would already have substantial number of small entities. In section 553(b) of the Administrative elected voluntarily to comply with some support of this determination, and in an Procedure Act (5 U.S.C. 551 et seq.) and of the state regulatory requirements and effort to provide a sound basis for this which are likely to have a significant therefore would not incur any cost from conclusion, EBSA has prepared the economic impact on a substantial the application of state law. For those following final regulatory flexibility number of small entities. Unless an that would not have complied with analysis. agency certifies that a rule will not have relevant state law, operation of the (1) Reasons for Action. EBSA is a significant economic impact on a proposing this regulation because it regulation may impose additional costs, substantial number of small entities, such as meeting solvency requirements believes that regulatory guidance section 604 of the RFA requires that the concerning the definition of a ‘‘plan or or providing mandated benefits. The agency present a regulatory flexibility additional costs are offset and justified arrangement which is established or analysis at the time of the publication of maintained under or pursuant to one or by increased security for plans and the notice of final rulemaking describing improved coverage for participants. more agreements which the Secretary the impact of the rule on small entities. finds to be collective bargaining Thus, the added cost from state Small entities include small businesses, regulation would be offset by the agreements’’ (ERISA 3(40)(A)(1)) is organizations and governmental necessary to ensure that state insurance benefits derived from the protections jurisdictions. that state regulations provide. GAO, in regulators have ascertainable guidelines For purposes of analysis under the to help regulate MEWAs operating in 1992, identified $124 million in unpaid RFA, the Employee Benefits Security their jurisdictions. The guidance will claims owed by sham MEWAs. Administration (EBSA) continues to also allow sponsors of employee welfare Department enforcement actions consider a small entity to be an benefit plans to determine involving MEWAs in recent years have employee benefit plan with fewer than independently whether their entities are identified monetary violations of 100 participants. The basis of this excepted under section 3(40) of ERISA. approximately $121.6 million. With definition is found in section 104(a)(2) A more detailed discussion of the state licensing and solvency of ERISA, which permits the Secretary agency’s reasoning for issuing the requirements in place, at least some of Labor to prescribe simplified annual regulation is found above. incidences of the $124 million in reports for pension plans that cover (2) Objective. The objective of the unpaid claims cited in the GAO study fewer than 100 participants. Under regulation is to provide criteria for the or the $121.6 million in violations section 104(a)(3), the Secretary may also application of an exception to the would most likely not have occurred. provide for exemptions or simplified definition ‘‘multiple employer welfare It is also possible that some entities annual reporting and disclosure for arrangement’’ (MEWA) found in section considered to be MEWAs because they welfare benefit plans. Pursuant to the 3(40) of ERISA for a ‘‘plan or other are not collectively bargained will be authority of section 104(a)(3), the arrangement which is established or reclassified under the criteria regulation Department has previously issued at 29 maintained—(i) under or pursuant to as collectively bargained plans. CFR 2520.104–20, 2520.104–21, one or more agreements which the However, this number seems likely to be 2520.104–41, 2520.104–46, and Secretary finds to be collective very small because entities that can 2520.104b–10, certain simplified bargaining agreements.’’ An extensive reporting provisions and limited legitimately be treated as collectively list of authority may be found in the exemptions from reporting and bargained have an economic incentive Statutory Authority section, below. disclosure requirements for small plans, (3) Estimate of Small Entities to do so. Any entities that are so including unfunded or insured welfare Affected. Form 5500 filings and Form classified benefit from the savings of benefit plans covering fewer than 100 M–1 filings indicate that there are about having no obligation to comply with participants and that satisfy certain 2,600 entities that could be classified as state regulatory requirements. There is other requirements. collectively bargained plans or MEWAs no meaningful loss of benefits from the Further, while some large employers and that could be affected by the new absence of state protections in such may have small plans, generally, most criteria for defining collectively cases because the combination of a small plans are maintained by small bargained plans. It is expected, legitimate collective bargaining employers. Thus, EBSA believes that however, that a very small number of agreement and the application of ERISA assessing the impact of this rule on these entities will have fewer than 100 provides adequate protections. small plans is an appropriate substitute participants. By their nature, the for evaluating the effect on small affected entities must involve at least 3 Recent data from actual Form M–1 filings results entities. The definition of small entity two employers, which decreases the in a higher estimated number of participants per entity than was indicated in the proposal; therefore, considered appropriate for this purpose likelihood of their covering fewer than the estimated cost for the final regulation exceeds differs, however, from a definition of 100 participants. Also, the underlying the $58 million cost estimate for the proposal. small business that is based on size goals behind the formation of these

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entities, such as gaining purchasing and welfare benefits available to some small developing acceptable criteria. The negotiating power through economies of businesses, requiring them to seek Committee included representatives scale, improving administrative alternative coverage for their employees. from labor unions, multiemployer plans, efficiencies, and gaining access to The greater benefit for employers, state governments, employer/ additional benefit design features, are however, is an increased certainty that management associations, Railway not readily accomplished if the group of the MEWAs that remain in business will Labor Act plans, third-party covered lives remains small. meet state regulatory standards and will administrators, independent agents and Available data indicate that about 200 be more certain to provide promised brokers of health care products, or eight percent of the 2,600 entities health, life, disability or other welfare insurance carriers and the federal have fewer than 100 participants. Based benefits to employees. Consequently, government. Because this rule takes into on the health coverage reported in the employers will receive a net benefit account the Committee’s consensus Employee Benefits Supplement to the from the reduced incidence of fraud and views, and because the Committee 1993 Current Population Survey and a insolvency among the pool of MEWAs represented a full cross-section of the 1993 Small Business Administration in the marketplace. parties affected by the rule, including survey of retirement and other benefit (4) Reporting and Recordkeeping. In state, federal, association, and private coverages in small firms, the most cases, the records used to sector health care organizations, the Department estimates that there are determine if a welfare benefit plan is Department believes that, as an more than 2.5 million private group established or maintained under or alternative to the 1995 NPRM, this health plans with fewer than 100 pursuant to a collective bargaining regulation accomplishes the stated participants. Thus, the number of small agreement are routinely prepared and objectives of the Secretary and will have plans and MEWAs potentially affected held by a collectively bargained a beneficial effect on small employer is very small in light of this large multiemployer plan in the ordinary participation in MEWAs. number of small plans. Even if every course of business. For any entities that The Department has concluded that one of the 2,600 entities at issue had are newly determined to be MEWAs the implementation of the regulation fewer than 100 participants, the number under the regulation, there will be an will be less costly than alternative of entities affected would represent economic impact related to the start-up methods of determining compliance approximately one-tenth of one percent costs of compliance with state with section 3(40), such as through case- of all small group health plans. regulations. These costs arise from state by-case analysis by EBSA of each Accordingly, the Department has requirements, however, and not the employee welfare benefit plan or determined that this regulation will not requirements of this regulation. Start-up litigation. In addition, if the Department have a significant economic impact on costs under state regulations may elected not to define specific guidelines a substantial number of small entities. include expenses of registration, for the application of section 3(40), Although relatively few small plans licensing, financial reporting, auditing, thereby enabling sham MEWAs to and other entities are expected to be and any other requirement of state continue to evade state regulation, costs affected by this proposal, it is known insurance law. Reporting and filing this for small businesses would rise in terms that the employers typically involved in information with the state would of loss of coverage and unpaid claims. these entities are often small (that is, require the professional skills of an No other significant alternatives that they have fewer than 500 employees, attorney, accountant, or other health would minimize economic impact on which is generally consistent with the benefit plan professional; however, post small entities were identified. definition of small entity found in start-up, the majority of the Further, the Department has regulations issued by the Small recordkeeping and reporting could be concluded that it would be Business Administration (13 CFR handled by clerical staff. inappropriate to create a specific 121.201)). At the time of the proposed (5) Duplication. No federal rules have exemption under the regulation for regulation, the Department sought been identified that duplicate, overlap, small MEWAs because small MEWAs comments and data with respect to the or conflict with the final rule. are just as likely as large MEWAs to be number of small employers potentially (6) Alternatives. The regulation adopts underfunded or otherwise have impacted by the establishment of a generally the views of the consensus inadequate reserves to meet the benefit standard for determining whether a report of the Committee that was claims submitted for payment. welfare benefit plan is established or established to provide an alternative to E. Small Business Regulatory maintained under or pursuant to one or the Department’s earlier Notice of Enforcement Fairness Act more collective bargaining agreements. Proposed Rulemaking on Plans No comments or data were received in Established or Maintained Under or The rule being issued here is subject response to this request; the Department Pursuant to Collective Bargaining to the Congressional Review Act therefore continues to believe that, Agreements, published in the Federal provisions of the Small Business because these plans and arrangements Register (60 FR 39209, Aug. 1, 1995). At Regulatory Enforcement Fairness Act of involve at least two employers, and that time, recognizing that guidance was 1996 (5 U.S.C. 801 et seq.) and has been assuming that each is small, it can be needed to clarify the collective transmitted to Congress and the estimated that at least 5,200 small bargaining exception to the MEWA Comptroller General for review. The employers may be affected. regulation, the Department had rule is not a ‘‘major rule’’ as that term It is possible that a small employer proposed certain criteria describing the is defined in 5 U.S.C. 804, because it is participating in what it thinks is a collective bargaining agreement. not likely to result in (1) An annual legitimate MEWA may find that it has Commenters on the first proposed effect on the economy of $100 million unknowingly participated in a sham regulation expressed concerns related to or more; (2) a major increase in costs or MEWA and will need to change its plan compliance and the issue of state prices for consumers, individual method of providing welfare benefits to regulation. industries, or federal, state, or local its employees. By enabling states to Based on the comments received, the government agencies, or geographic regulate fraudulent and financially Department subsequently turned to regions; or (3) significant adverse effects unsound MEWAs, therefore, the negotiated rulemaking, establishing the on competition, employment, regulation may limit the sources of Committee to assist the Department in investment, productivity, innovation, or

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on the ability of United States-based create entities that falsely promise PART 2510—[AMENDED] DEFINITION enterprises to compete with foreign- benefits they are unable to provide. OF TERMS USED IN SUBCHAPTERS C, based enterprises in domestic or export These operators, free of state solvency D, E, F, AND G OF THIS CHAPTER markets. and reserve requirements, have ■ marketed unlicensed health insurance 1. The authority citation for part 2510 F. Unfunded Mandates Reform Act to small employers, often offering health is revised to read as follows: For purposes of the Unfunded insurance at significantly lower rates Authority: 29 U.S.C. 1002(2), 1002(21), Mandates Reform Act of 1995 (2 U.S.C. than state-licensed insurance 1002(37), 1002(40), 1031, and 1135; Secretary 1501 et seq.), as well as Executive Order companies. Ultimately, these operations of Labor’s Order 1–2003, 68 FR 5374; Sec. 12875, this rule does not include any have often gone bankrupt, leaving 2510.3–101 also issued under sec. 102 of Reorganization Plan No. 4 of 1978, 43 FR Federal mandate that may result in individuals with significant unpaid expenditures by State, local, or tribal 47713, 3 CFR, 1978 Comp., p. 332 and E.O. health claims and without health 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. governments, or the private sector, insurance. The lack of clear guidance 275, and 29 U.S.C. 1135 note. Sec. 2510.3– which may impose an annual burden of has hampered states in their efforts to 102 also issued under sec. 102 of $100 million. regulate these entities, and appropriate Reorganization Plan No. 4 of 1978, 43 FR G. Executive Order 13132 state regulation would reduce or 47713, 3 CFR, 1978 Comp., p. 332 and E.O. eliminate the risk of losses to 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. When an agency promulgates a employers, employees and their 275. regulation that has federalism families. ■ 2. Add new section 2510.3–40 to read implications, Executive Order 13132 (64 as follows: FR 43255, August 10, 1999), requires the This regulation provides objective Agency to provide a federalism criteria for distinguishing collectively § 2510.3–40 Plans Established or summary impact statement. Pursuant to bargained plans from arrangements Maintained Under or Pursuant to Collective section 6(c) of the Order, such a subject to state insurance law. The Bargaining Agreements Under Section statement must include a description of regulation will facilitate state 3(40)(A) of ERISA. the extent of the agency’s consultation enforcement efforts against (a) Scope and purpose. Section with State and local officials, a arrangements attempting to misuse the 3(40)(A) of the Employee Retirement summary of the nature of their concerns collectively bargained exception in Income Security Act of 1974 (ERISA) and the agency’s position supporting the section 3(40) of ERISA. In that regard, provides that the term ‘‘multiple need to issue the regulation, and a the regulation will reduce the incidence employer welfare arrangement’’ statement of the extent to which the of sale of unlicensed insurance under (MEWA) does not include an employee concerns of the State have been met. the guise of collectively bargained plans welfare benefit plan that is established This regulation has federalism and will limit the losses to individuals or maintained under or pursuant to one implications because it sets forth in the form of unreimbursed medical or more agreements that the Secretary of standards and procedures for and other welfare benefit insurance Labor (the Secretary) finds to be determining whether certain entities claims. collective bargaining agreements. This may be regulated under certain state The Department notes further, as section sets forth criteria that represent laws or whether such state laws are discussed more fully above, that one a finding by the Secretary whether an preempted with respect to such entities. commenter expressed concern that the arrangement is an employee welfare The state laws at issue are those that availability of administrative benefit plan established or maintained regulate the business of insurance. proceedings for an individualized under or pursuant to one or more From the inception of the Committee section 3(40) finding in cases where the collective bargaining agreements. A plan through final deliberations on jurisdiction or law of a state has been is established or maintained under or comments received on the proposed asserted may result in delays in state pursuant to collective bargaining if it regulation, a representative from the enforcement that could substantially meets the criteria in this section. National Association of Insurance hinder a state’s ability to take timely However, even if an entity meets the Commissioners (NAIC), representing the enforcement actions against sham criteria in this section, it will not be an interests of state governments in the MEWA operators. Recognizing the need employee welfare benefit plan regulation of insurance, participated in to ensure that the regulations assist, established or maintained under or the rulemaking. NAIC raised the rather than hinder, state enforcement pursuant to a collective bargaining following concerns at Committee efforts against sham MEWA operators, agreement if it comes within the meetings: (1) That the rule should allow and taking into account the input of the exclusions in the section. Nothing in or MEWAs to be easily distinguishable Committee, including the NAIC pursuant to this section shall constitute from collectively bargained plans so that representative, the Department has a finding for any purpose other than the MEWAs properly may be subjected to amended the regulation to make clear exception for plans established or state jurisdiction and regulation; (2) that that it is not intended to provide the maintained under or pursuant to one or the rule should prevent the unlicensed basis for a stay or delay of any state more collective bargaining agreements sale of health insurance; and (3) that actions, including administrative or under section 3(40) of ERISA. In a losses to individuals in the form of court proceedings and enforcement particular case where there is an attempt unreimbursed and denied medical subpoenas, where immediate state to assert state jurisdiction or the claims should be eliminated. enforcement action is warranted. application of state law with respect to The Department’s position is that a plan or other arrangement that there is a substantial need for this List of Subjects in 29 CFR Part 2510 allegedly is covered under Title I of regulation. Unscrupulous individuals Collective bargaining, Employee ERISA, the Secretary has set forth a have been able to exploit the lack of benefit plans, Pensions. procedure for obtaining individualized clear guidance regarding the criteria for findings at 29 CFR part 2570, subpart H. determining whether an entity is ■ For the reasons set forth in the pre- (b) General criteria. The Secretary established or maintained pursuant to amble, 29 CFR part 2510 is amended as finds, for purposes of section 3(40) of collective bargaining agreements to follows: ERISA, that an employee welfare benefit

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plan is ‘‘established or maintained committee, joint board of trustees, or between the employers and the under or pursuant to one or more other similar group of representatives of employee organization(s); agreements which the Secretary finds to the parties who sponsor the plan; (ii) Identifies employers and be collective bargaining agreements’’ for (B) The plan or associated trust fund; employee organization(s) that are parties any plan year in which the plan meets (C) Other employee benefit plans or to and bound by the agreement; the criteria set forth in paragraphs (b)(1), trust funds to which contributions are (iii) Identifies the personnel, job (2), (3), and (4) of this section, and is not made pursuant to the same agreement classifications, and/or work jurisdiction excluded under paragraph (c) of this described in paragraph (b)(3) of this covered by the agreement; section. section; or (iv) Provides for terms and conditions (1) The entity is an employee welfare (D) An employer association that is of employment in addition to coverage benefit plan within the meaning of the authorized employer representative under, or contributions to, the plan; and section 3(1) of ERISA. that actually engaged in the collective (v) Is not unilaterally terminable or (2) At least 85% of the participants in bargaining that led to the agreement that automatically terminated solely for non- the plan are: references the plan as described in payment of benefits under, or (i) Individuals employed under one or paragraph (b)(3) of this section; contributions to, the plan. more agreements meeting the criteria of (vii) Individuals who were employed (4) For purposes of paragraph (b)(3)(i) paragraph (b)(3) of this section, under under an agreement described in of this section, the following factors, which contributions are made to the paragraph (b)(3) of this section, among others, are to be considered in plan, or pursuant to which coverage provided that they are employed by one determining the existence of a bona fide under the plan is provided; or more employers that are parties to an collective bargaining relationship. In (ii) Retirees who either participated in agreement described in paragraph (b)(3) any proceeding initiated under 29 CFR the plan at least five of the last 10 years and are covered under the plan on terms part 2570 subpart H, the existence of a preceding their retirement, or that are generally no more favorable bona fide collective bargaining (A) Are receiving benefits as than those that apply to similarly relationship under paragraph (b)(3)(i) participants under a multiemployer situated individuals described in shall be presumed where at least four of pension benefit plan that is maintained paragraph (b)(2)(i) of this section; the factors set out in paragraphs (b)(4)(i) under the same agreements referred to (viii) Individuals (other than through (viii) of this section are in paragraph (b)(3) of this section, and individuals described in paragraph established. In such a proceeding, the (B) Have at least five years of service (b)(2)(i) of this section) who are Secretary may also consider whether or the equivalent under that employed by employers that are bound other objective or subjective indicia of multiemployer pension benefit plan; by the terms of an agreement described actual collective bargaining and (iii) Participants on extended coverage in paragraph (b)(3) of this section and representation are present as set out in under the plan pursuant to the that employ personnel covered by such paragraph (b)(4)(ix) of this section. requirements of a statute or court or agreement, and who are covered under (i) The agreement referred to in administrative agency decision, the plan on terms that are generally no paragraph (b)(3) of this section provides including but not limited to the more favorable than those that apply to for contributions to a labor-management continuation coverage requirements of such covered personnel. For this trust fund structured according to the Consolidated Omnibus Budget purpose, such individuals in excess of section 302(c)(5), (6), (7), (8), or (9) of Reconciliation Act of 1985, sections 10% of the total population of the Taft-Hartley Act, 29 U.S.C. 186(c)(5), 601–609, 29 U.S.C. 1169, the Family participants in the plan are disregarded; (6), (7), (8) or (9), or to a plan lawfully and Medical Leave Act, 29 U.S.C. 2601 (ix) Individuals who are, or were for negotiated under the Railway Labor Act; et seq., the Uniformed Services a period of at least three years, (ii) The agreement referred to in Employment and Reemployment Rights employed under one or more paragraph (b)(3) of this section requires Act of 1994, 38 U.S.C. 4301 et seq., or agreements between or among one or contributions by substantially all of the the National Labor Relations Act, 29 more ‘‘carriers’’ (including ‘‘carriers by participating employers to a U.S.C. 158(a)(5); air’’) and one or more ‘‘representatives’’ multiemployer pension plan that is (iv) Participants who were active of employees for collective bargaining structured in accordance with section participants and whose coverage is purposes and as defined by the Railway 401 of the Internal Revenue Code (26 otherwise extended under the terms of Labor Act, 45 U.S.C. 151 et seq., U.S.C.) and is either structured in the plan, including but not limited to providing for such individuals’ current accordance with section 302(c)(5) of the extension by reason of self-payment, or subsequent participation in the plan, Taft-Hartley Act, 29 U.S.C. 186(c)(5), or hour bank, long or short-term disability, or providing for contributions to be is lawfully negotiated under the Railway furlough, or temporary unemployment, made to the plan by such carriers; or Labor Act, and substantially all of the provided that the charge to the (x) Individuals who are licensed active participants covered by the individual for such extended coverage is marine pilots operating in United States employee welfare benefit plan are also no more than the applicable premium ports as a state-regulated enterprise and eligible to become participants in that under section 604 of the Act; are covered under an employee welfare pension plan; (v) Participants whose coverage under benefit plan that meets the definition of (iii) The predominant employee the plan is maintained pursuant to a a qualified merchant marine plan, as organization that is a party to the reciprocal agreement with one or more defined in section 415(b)(2)(F) of the agreement referred to in paragraph (b)(3) other employee welfare benefit plans Internal Revenue Code (26 U.S.C.). of this section has maintained a series that are established or maintained under (3) The plan is incorporated or of agreements incorporating or or pursuant to one or more collective referenced in a written agreement referencing the plan since before bargaining agreements and that are between one or more employers and one January 1, 1983; multiemployer plans; or more employee organizations, which (iv) The predominant employee (vi) Individuals employed by: agreement, itself or together with other organization that is a party to the (A) An employee organization that agreements among the same parties: agreement referred to in paragraph (b)(3) sponsors, jointly sponsors, or is (i) Is the product of a bona fide of this section has been a national or represented on the association, collective bargaining relationship international union, or a federation of

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national and international unions, or described in paragraph (b)(3) of this membership in unions representing has been affiliated with such a union or section; that the predominant employee insurance producers themselves; federation, since before January 1, 1983; organization that is party to such (2) The agreement under which the (v) A court, government agency, or agreement actively represents plan is established or maintained is a other third-party adjudicatory tribunal employees covered by such agreement scheme, plan, stratagem, or artifice of has determined, in a contested or with respect to grievances, disputes, or evasion, a principal intent of which is adversary proceeding, or in a other matters involving employment to evade compliance with state law and government-supervised election, that terms and conditions other than regulations applicable to insurance; or the predominant employee organization coverage under, or contributions to, the (3) There is fraud, forgery, or willful that is a party to the agreement employee welfare benefit plan; that misrepresentation as to the factors relied described in paragraph (b)(3) of this there is a geographic, occupational, on to demonstrate that the plan satisfies section is the lawfully recognized or trade, organizing, or other rationale for the criteria set forth in paragraph (b) of designated collective bargaining the employers and bargaining units this section. covered by such agreement; that there is representative with respect to one or (d) Definitions. (1) Active participant a connection between such agreement more bargaining units of personnel means a participant who is not retired and the participation, if any, of self- covered by such agreement; and who is not on extended coverage employed individuals in the employee (vi) Employers who are parties to the under paragraphs (b)(2)(iii) or (b)(2)(iv) welfare benefit plan established or agreement described in paragraph (b)(3) of this section. of this section pay at least 75% of the maintained under or pursuant to such (2) Agreement means the contract premiums or contributions required for agreement. embodying the terms and conditions the coverage of active participants under (c) Exclusions. An employee welfare mutually agreed upon between or the plan or, in the case of a retiree-only benefit plan shall not be deemed to be among the parties to such agreement. plan, the employers pay at least 75% of ‘‘established or maintained under or Where the singular is used in this the premiums or contributions required pursuant to one or more agreements section, the plural is automatically for the coverage of the retirees. For this which the Secretary finds to be included. purpose, coverage under the plan for collective bargaining agreements’’ for dental or vision care, coverage for any plan year in which: (3) Individual employed means any excepted benefits under 29 CFR (1) The plan is self-funded or partially natural person who furnishes services to 2590.732(b), and amounts paid by self-funded and is marketed to another person or entity in the capacity employers or sole proprietors participants and beneficiaries as co- of an employee under common law, (i) By one or more insurance payments or deductibles in accordance without regard to any specialized producers as defined in paragraph (d) of with the terms of the plan are definitions or interpretations of the this section; terms ‘‘employee,’’ ‘‘employer,’’ or disregarded; (ii) By an individual who is (vii) The predominant employee ‘‘employed’’ under federal or state disqualified from, or ineligible for, or statutes other than ERISA. organization that is a party to the has failed to obtain, a license to serve agreement described in paragraph (b)(3) (4) Insurance producer means an as an insurance producer to the extent agent, broker, consultant, or producer of this section provides, sponsors, or that the individual engages in an jointly sponsors a hiring hall(s) and/or who is an individual, entity, or sole activity for which such license is proprietor that is licensed under the a state-certified apprenticeship required; or program(s) that provides services that laws of the state to sell, solicit, or (iii) By individuals (other than negotiate insurance. are available to substantially all active individuals described in paragraphs (5) Predominant employee participants covered by the plan; (c)(1)(i) and (ii) of this section) who are organization means, where more than (viii) The agreement described in paid on a commission-type basis to one employee organization is a party to paragraph (b)(3) of this section has been market the plan. determined to be a bona fide collective (iv) For the purposes of this paragraph an agreement, either the organization bargaining agreement for purposes of (c)(1): representing the plurality of individuals establishing the prevailing practices (A) ‘‘Marketing’’ does not include employed under such agreement, or with respect to wages and supplements administering the plan, consulting with organizations that in combination in a locality, pursuant to a prevailing plan sponsors, counseling on benefit represent the majority of such wage statute of any state or the District design or coverage, or explaining the individuals. of Columbia. terms of coverage available under the (e) Examples. The operation of the (ix) There are other objective or plan to employees or union members; provisions of this section may be subjective indicia of actual collective (B) ‘‘Marketing’’ does include the illustrated by the following examples. bargaining and representation, such as marketing of union membership that Example 1. Plan A has 500 participants, in that arm’s-length negotiations occurred carries with it plan participation by the following 4 categories of participants between the parties to the agreement virtue of such membership, except for under paragraph (b)(2) of this section:

Categories of participants Total number Nexus group Non-nexus

1. Individuals working under CBAs ...... 335 (67%) 335 (67%) 0 2. Retirees ...... 50 (10%) 50 (10%) 0 3. ‘‘Special Class’’—Non-CBA, non-CBA-alumni ...... 100 (20%) 50 (10%) 50 (10%) 4. Non-nexus participants ...... 15 (3%) 0 15 (3%)

Total ...... 500 (100%) 435 (87%) 65 (13%)

In determining whether at least 85% of of individuals with the required nexus to the by paragraph (b)(2) of this section, the Plan Plan A’s participant population is made up collective bargaining agreement as required may count as part of the nexus group only

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50 (10% of the total plan population) of the Pension Plan were merged to form National Example 5. Arthur is a licensed insurance 100 individuals described in paragraph MRGE Pension Plan. When the unions broker, one of whose clients is (b)(2)(viii) of this section. That is because the merged, the employees and retirees covered Multiemployer Fund M, a partially self- number of individuals meeting the category under the pre-merger plans continued to be funded plan. Arthur takes bids from of individuals in paragraph (b)(2)(viii) covered under the post-merger plans insurance companies on behalf of Fund M for exceeds 10% of the total participant pursuant to the collective bargaining the insured portion of its coverage, helps the population by 50 individuals. The paragraph agreements and also were given credit in the trustees to evaluate the bids, and places the specifies that of those individuals who would post-merger plans for their years of service Fund’s health insurance coverage with the otherwise be deemed to be nexus individuals and coverage in the pre-merger plans. carrier that is selected. Arthur also assists the because they are the type of individuals Retirees who originally were covered under trustees of Fund M in preparing material to described in paragraph (b)(2)(viii), the the pre-merger plans and continue to be explain the plan and its benefits to the number in excess of 10% of the total plan covered under the post-merger plans based participants, as well as in monitoring the population may not be counted in the nexus on their past service and coverage would be insurance company’s performance under the group. Here, 50 of the 100 individuals considered to be ‘‘retirees’’ for purposes of contract. At the Trustees’ request, Arthur employed by signatory employers, but not 2550.3–40(b)(2)(ii). Likewise, bargaining unit meets with a group of employers with which covered by the collective bargaining alumni who were covered under the pre- the union is negotiating for their employees’ agreement, are counted as nexus individuals merger plans and continued to be covered coverage under Fund M, and he explains the and 50 are not counted as nexus individuals. under the post-merger plans based on their cost structure and benefits that Fund M Nonetheless, the Plan satisfies the 85% past service and coverage and their provides. Arthur is not engaged in marketing criterion under paragraph (b)(2) because a continued employment with employers that within the meaning of paragraph (c)(1) of this total of 435 (335 individuals covered by the are parties to an agreement described in section, so the fact that he provides these collective bargaining agreement, plus 50 paragraph (b)(3) of this section would be administrative services and sells insurance to retirees, plus 50 individuals employed by considered to be bargaining unit alumni for the Fund itself does not affect the plan’s signatory employers), or 87%, of the 500 purposes of 2550.3–40(b)(2)(vii). status as a plan established or maintained participants in Plan A are individuals who Example 3. Assume the same facts as in under or pursuant to a collective bargaining may be counted as nexus participants under paragraph (ii) of Example 2 with respect to agreement. This is the case whether or how paragraph (b)(2). Beneficiaries (e.g., spouses, International Union MG. However, in 1997, he is compensated. dependent children, etc.) are not counted to one of its Locals and the employers with Example 6. Assume the same facts as determine whether the 85% test has been which it negotiates agree to set up a new Example 5, except that Arthur has a group of met. multiemployer health and welfare plan that clients who are unrelated to the employers Example 2. (i) International Union MG and only covers the individuals represented by bound by the collective bargaining that Local Union. That plan would not meet its Local Unions have represented people agreement, whose employees would not be the factor in paragraph (b)(4)(iii) of this working primarily in a particular industry for ‘‘nexus group’’ members, and whose section, as it has not been incorporated or over 60 years. Since 1950, most of their insurance carrier has withdrawn from the referenced in collective bargaining collective bargaining agreements have called market in their locality. He persuades the agreements since before January 1, 1983. for those workers to be covered by the client group to retain him to find them other Example 4. (i) Pursuant to a collective National MG Health and Welfare Plan. bargaining agreement between various coverage. The client group has no During that time, the number of union- employers and Local 2000, the employers relationship with the labor union that represented workers in the industry, and the contribute $2 per hour to the Fund for every represents the participants in Fund M. number of active participants in the National hour that a covered employee works under However, Arthur offers them coverage under MG Health and Welfare Plan, first grew and the agreement. The covered employees are Fund M and persuades the Fund’s Trustees then declined. New Locals were formed and automatically entitled to health and to allow the client group to join Fund M in later were shut down. Despite these disability coverage from the Fund for every order to broaden Fund M’s contribution base. fluctuations, the National MG Health and calendar quarter the employees have 300 Arthur’s activities in obtaining coverage for Welfare Plan meets the factors described in hours of additional covered service in the the unrelated group under Fund M paragraphs (b)(4)(iii) and (iv) of this section, preceding quarter. The employees do not constitutes marketing through an insurance as the plan has been in existence pursuant to need to make any additional contributions producer; Fund M is a MEWA under collective bargaining agreements to which for their own coverage, but must pay $250 paragraph (c)(1) of this section. the International Union and its affiliates have per month if they want health coverage for Example 7. Union A represents thousands been parties since before January 1, 1983. their dependent spouse and children. of construction workers in a three-state (ii) Assume the same facts, except that on Because the employer payments cover 100% geographic region. For many years, Union A January 1, 1999, International Union MG of the required contributions for the has maintained a standard written collective merged with International Union RE to form employees’ own coverage, the Local 2000 bargaining agreement with several hundred International Union MRGE. MRGE and its Employers Health and Welfare Fund meets large and small building contractors, Locals now represent the active participants the ‘‘75% employer payment’’ factor under covering wages, hours, and other terms and in the National MG Health and Welfare Plan paragraph (b)(4)(vi) of this section. conditions of employment for all work and in the National RE Health and Welfare (ii) Assume, however, that the negotiated performed in Union A’s geographic territory. Plan, which, for 45 years, had been employer contribution rate was $1 per hour, The terms of those agreements are negotiated maintained under collective bargaining and the employees could only obtain health every three years between Union A and a agreements negotiated by International Union coverage for themselves if they also elected multiemployer Association, which signs on RE and its Locals. Since International Union to contribute $1 per hour, paid on a pre-tax behalf of those employers who have MRGE is the continuation of, and successor basis through salary reduction. The Fund delegated their bargaining authority to the to, the MG and RE unions, the two plans would not meet the 75% employer payment Association. Hundreds of other employers— continue to meet the factors in paragraphs factor, even though the employees’ including both local and traveling (b)(4)(iii) and (iv) of this section. This also contributions are treated as employer contractors—have chosen to become bound would be true if the two plans were merged. contributions for tax purposes. Under ERISA, to the terms of Union A’s standard area (iii) Assume the same facts as in and therefore under this section, elective agreement for various periods of time and in paragraphs (i) and (ii) of this Example. In salary reduction contributions are treated as various ways, such as by signing short-form addition to maintaining the health and employee contributions. The outcome would binders or ‘‘me too’’ agreements, executing a welfare plans described in those paragraphs, be the same if a uniform employee single job or project labor agreement, or International Union MG also maintained the contribution rate applied to all employees, entering into a subcontracting arrangement National MG Pension Plan and International whether they had individual or family with a signatory employer. All of these Union RE maintained the National RE coverage, so that the $1 per hour employee employ individuals represented by Union A Pension Plan. When the unions merged and contribution qualified an employee for his or and contribute to Plan A, a self-insured the health and welfare plans were merged, her own coverage and, if he or she had multiemployer health and welfare plan National MG Pension Plan and National RE dependents, dependent coverage as well. established and maintained under Union A’s

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standard area agreement. During the past bargain for the same coverage. At the same In either case, the consequence of adding the year, the trustees of Plan A have brought time, when appealing to the employers in the participants through the Medical Consortium lawsuits against several signatory employers Medical Consortium for voluntary is that Plan A is now a MEWA for purposes seeking contributions allegedly owed, but not recognition, Union A promises to publicize of section 3(40) of ERISA and is not exempt paid to the trust. In defending that litigation, the Consortium’s status as a group of from state regulation by virtue of ERISA. a number of employers have sworn that they unionized health care service providers. (f) Cross-reference. See 29 CFR part never intended to operate as union Union A eventually succeeds in obtaining contractors, that their employees want recognition based on its majority status 2570, subpart H for procedural rules nothing to do with Union A, that Union A among the employees working for Medical relating to proceedings seeking an procured their assent to the collective Consortium employers. The Consortium, Administrative Law Judge finding by bargaining agreement solely by threats and acting on behalf of its employer members, the Secretary under section 3(40) of fraudulent misrepresentations, and that negotiates a collective bargaining agreement ERISA. Union A has failed to file certain reports with Union A that provides terms and (g) Effect of proceeding seeking required by the Labor Management Reporting conditions of employment, including Administrative Law Judge Section 3(40) and Disclosure Act. In at least one instance, coverage under Plan A. In this example, Plan Finding. a petition for a decertification election has A still meets the criteria for a regulatory (1) An Administrative Law Judge been filed with the National Labor Relations finding that it is collectively bargained under Board. In this example, Plan A meets the section 3(40) of ERISA. Union A’s finding issued pursuant to the criteria for a regulatory finding under this recruitment and representation of a new procedures in 29 CFR part 2570, subpart section that it is a multiemployer plan occupational category of workers unrelated to H will constitute a finding whether the established and maintained under or the construction trade, its promotion of entity in that proceeding is an employee pursuant to one or more collective bargaining attractive health benefits to achieve welfare benefit plan established or agreements, assuming that its participant organizing success, and the Plan’s resultant maintained under or pursuant to an population satisfies the 85% test of growth, do not take Plan A outside the agreement that the Secretary finds to be paragraph (b)(2) of this section and that none regulatory finding. a collective bargaining agreement for of the disqualifying factors in paragraph (c) Example 10. Assume the same facts as in purposes of section 3(40) of ERISA. of this section is present. Plan A’s status for Example 7. The Medical Consortium, a newly (2) Nothing in this section or in 29 the purpose of this section is not affected by formed organization, approaches Plan A with the fact that some of the employers who deal a proposal to make money for Plan A and CFR part 2570, subpart H is intended to with Union A have challenged Union A’s Union A by enrolling a large group of provide the basis for a stay or delay of conduct, or have disputed under labor employers, their employees, and self- a state administrative or court statutes and legal doctrines other than ERISA employed individuals affiliated with the proceeding or enforcement of a section 3(40) the validity and enforceability Medical Consortium. The Medical subpoena. of their putative contract with Union A, Consortium obtains employers’ signatures on Signed this 31st day of March 2003. regardless of the outcome of those disputes. a generic document bearing Union A’s name, Example 8. Assume the same facts as labeled ‘‘collective bargaining agreement,’’ Ann L. Combs, Example 7. Plan A’s benefits consultant which provides for health coverage under Assistant Secretary, Employee Benefits recently entered into an arrangement with Plan A and compliance with wage and hour Security Administration. the Medical Consortium, a newly formed statutes, as well as other employment laws. [FR Doc. 03–8113 Filed 4–7–03; 8:45 am] organization of health care providers, which Employees of signatory employers sign BILLING CODE 4510–29–P allows the Plan to offer a broader range of enrollment documents for Plan A and are health services to Plan A’s participants while issued membership cards in Union A; their achieving cost savings to the Plan and to membership dues are regularly checked off DEPARTMENT OF LABOR participants. Union A, Plan A, and Plan A’s along with their monthly payments for health consultant each have added a page to their coverage. Self-employed individuals Employee Benefits Security Web sites publicizing the new arrangement similarly receive union membership cards Administration with the Medical Consortium. Concurrently, and make monthly payments, which are Medical Consortium’s Web site prominently divided between Plan A and the Union. publicizes its recent affiliation with Plan A Aside from health coverage matters, these 29 CFR Part 2570 and the innovative services it makes new participants have little or no contact RIN 1210–AA48 available to the Plan’s participants. Union A with Union A. The new participants enrolled has mailed out informational packets to its through the Consortium amount to 18% of Procedures for Administrative members describing the benefit the population of Plan A during the current Hearings Regarding Plans Established enhancements and encouraging election of Plan Year. In this example, Plan A now fails family coverage. Union A has also begun to meet the criteria in paragraphs (b)(2) and or Maintained Pursuant to Collective distributing similar material to workers on (b)(3) of this section, because more than 15% Bargaining Agreements Under Section hundreds of non-union construction job sites of its participants are individuals who are not 3(40)(A) of ERISA within its geographic territory. In this employed under agreements that are the AGENCY: Employee Benefits Security example, Plan A remains a plan established product of a bona fide collective bargaining and maintained under or pursuant to one or relationship and who do not fall within any Administration, Department of Labor. more collective bargaining agreements under of the other nexus categories set forth in ACTION: Final rule. section 3(40) of ERISA. Neither Plan A’s paragraph (b)(2) of this section. Moreover, relationship with a new organization of even if the number of additional participants SUMMARY: This document contains health care providers, nor the use of various enrolled through the Medical Consortium, regulations under the Employee media to publicize Plan A’s attractive together with any other participants who did Retirement Income Security Act of 1974, benefits throughout the area served by Union not fall within any of the nexus categories, as amended, (ERISA or the Act) A, alters Plan A’s status for purpose of this did not exceed 15% of the total participant describing procedures for administrative section. population under the plan, the circumstances hearings to obtain a determination by Example 9. Assume the same facts as in in this example would trigger the the Secretary of Labor (Secretary) as to Example 7. Union A undertakes an area-wide disqualification of paragraph (c)(2) of this whether a particular employee welfare organizing campaign among the employees of section, because Plan A now is being all the health care providers who belong to maintained under a substantial number of benefit plan is established or the Medical Consortium. When soliciting agreements that are a ‘‘scheme, plan, maintained under or pursuant to one or individual employees to sign up as union stratagem or artifice of evasion’’ intended more collective bargaining agreements members, Union A distributes Plan A’s primarily to evade compliance with state for purposes of section 3(40) of ERISA. information materials and promises to laws and regulations pertaining to insurance. An administrative hearing is available

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only if the jurisdiction or law of a state over plans or other arrangements as set The language of the procedural has been asserted against a plan or other forth in sections 3(40) and 514(b)(6) of regulations remains unchanged. arrangement that contends it meets the ERISA. exception for plans established or The procedural rules provide for B. Economic Analysis Under Executive maintained under or pursuant to one or administrative hearings to obtain a Order 12866 more collective bargaining agreements. determination by the Secretary as to Under Executive Order 12866, the whether a particular plan is established A separate document published Department must determine whether a or maintained under or pursuant to one elsewhere in this issue of the Federal regulatory action is ‘‘significant’’ and or more collective bargaining Register contains a rule setting forth the therefore subject to the requirements of agreements for purposes of section 3(40) criteria for determining when an the Executive Order and subject to employee welfare benefit plan is of ERISA. The rules are modeled on the review by the Office of Management and established or maintained under or procedures set forth in 29 CFR sections Budget (OMB). Under section 3(f), the pursuant to one or more collective 2570.60 through 2570.71 regarding civil order defines a ‘‘significant regulatory bargaining agreements for purposes of penalties under section 502(c)(2) of action’’ as an action that is likely to section 3(40) of ERISA. These ERISA related to reports required to be regulations are intended to assist labor filed under ERISA section 101(b)(1) and result in a rule (1) Having an annual organizations, plan sponsors and state are designed to maintain the maximum effect on the economy of $100 million insurance departments in determining degree of uniformity with those rules or more, or adversely and materially whether a plan is a ‘‘multiple employer that is consonant with the need for an affecting a sector of the economy, welfare arrangement’’ within the expedited procedure accommodating productivity, competition, jobs, the meaning of section 3(40) of ERISA. the specific characteristics necessary for environment, public health or safety, or State, local or tribal governments or EFFECTIVE DATE: June 9, 2003. proceedings under section 3(40). Accordingly, the rules adopt many, communities (also referred to as FOR FURTHER INFORMATION CONTACT: ‘‘economically significant’’); (2) creating Elizabeth A. Goodman, Office of although not all, of the provisions of subpart A of 29 CFR part 18 for the 3(40) serious inconsistency or otherwise Regulations and Interpretations, interfering with an action taken or Employee Benefits Security proceedings. In this regard, it should be noted that the rules apply only to planned by another agency; (3) Administration, U.S. Department of materially altering the budgetary Labor, 200 Constitution Avenue, NW., adjudicatory proceedings before impacts of entitlement grants, user fees, Room N–5669, Washington, DC 20210, administrative law judges (ALJs) of the or loan programs or the rights and (202) 693–8510. This is not a toll-free United States Department of Labor (the Department). An administrative hearing obligations of recipients thereof; or (4) number. is available under these rules only to an raising novel legal or policy issues SUPPLEMENTARY INFORMATION: entity that contends it meets the arising out of legal mandates, the A. Background exception provided in section President’s priorities, or the principles 3(40)(A)(i) for plans established or set forth in the Executive Order. These final rules set forth an maintained under or pursuant to Pursuant to the terms of the Executive administrative procedure for obtaining a collective bargaining agreements and determination by the Secretary of Labor Order, it has been determined that this only if the jurisdiction or law of a state action is ‘‘significant’’ within the (the Secretary) as to whether a particular has been asserted against that entity. employee benefit plan is established or meaning of 3(f)(4), and therefore subject These procedural rules were to review by the Office of Management maintained under or pursuant to one or published in the Federal Register in more agreements that are collective and Budget (OMB). Consistent with the proposed form on October 27, 2000, (65 Executive Order, the Department has bargaining agreements for purposes of FR 64498), simultaneously with the undertaken an assessment of the costs section 3(40) of the Employee proposed criteria regulation. As and benefits of this regulatory action. Retirement Income Security Act of 1974 discussed more fully in the preamble to The analysis is detailed below. (ERISA). These rules (the procedural the final criteria regulation, the regulations) are being published Department received seven comments Summary simultaneously with a final regulation on the proposed criteria and procedural (the criteria regulation) setting forth regulations, only one of which related to Pursuant to the requirements of specific criteria that, if met and if the procedural regulations. After Executive Order 12866, at the time of certain other factors set forth in the final considering the views of the Committee, the Notice of Proposed Rulemaking, the regulation are not present, constitute a which was reconvened by the Department sought comments and finding by the Secretary that a plan is Department for that purpose and met in information from the public on its established or maintained under or public session on March 1, 2002, the analysis of the benefits and costs of the pursuant to one or more collective Department has determined to issue the proposed regulation. Having received bargaining agreements for purposes of final procedural regulations in the same none, the Department believes, based on section 3(40). Both of these final format and language as proposed. its original discussion, that the benefits rulemakings take into account the views The Department received only one of this final regulation justify its costs. expressed by the ERISA section 3(40) comment relating to the proposed The regulation will benefit plans, states, Negotiated Rulemaking Advisory procedural rules. This comment also insurers, and organized labor by Committee (the Committee), which was concerned the criteria regulation and is reducing the cost of resolving some convened by the Department under the discussed in the preamble to that final disputes over a state’s right to regulate Negotiated Rulemaking Act (NRA) and rule. As described in the preamble to certain multiple employer welfare the Federal Advisory Committee Act the final criteria regulation, the benefit arrangements, facilitating the (the FACA), 5 U.S.C. App. 2. Together, Department has clarified the language of conduct of hearings, reducing disputes these final regulations will assist states, paragraph (g)(2) of the criteria regulation over a plan or arrangement’s status, and plan sponsors, and administrators of to emphasize that the ALJ proceedings improving the efficiency and ensuring employee benefit plans, in determining do not provide a basis for a stay-of-state the consistency in determinations of the scope of state regulatory authority administrative or judicial proceedings. such jurisdiction.

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Background both the petitioner and the state whose documents and instruments governing When state law or jurisdiction is authority is being asserted will benefit the entity are generally kept in the asserted over an entity that claims to be from the uniform application of criteria normal course of business, and it is excepted from state regulation under the by the ALJ, avoiding any confusion that likely that the cost for an administrative collective bargaining exception, the would result from inconsistent hearing will be no more than that which decisions. Finally, state insurance would be incurred in preparation for entity has the option of using these departments that receive a timely litigation in a federal or state court. procedures to resolve the dispute. In the resolution about an entity’s status as a Certain administrative hearing practices absence of the procedure provided MEWA will be able to swiftly deal with and other new procedures initiated by under these regulations for determining sham MEWAs and then re-direct saved this regulation may, however, represent whether a given plan or arrangement is resources to other areas. Because an ALJ a cost savings over litigation. For established or maintained pursuant to a decision will be based on the criteria example, neither party need employ an collective bargaining agreement, such regulation, the Department has attorney; the prehearing exchange is disputes have generally been resolved in attributed the net benefit from the short and general; either party may courts. The Department believes that reclassification of currently inaccurately move to shorten the time for the resolving disputes through the classified plans or arrangements (and scheduling of a proceeding, including procedures established by these the consequent application of the time for conducting discovery; the regulations will generally be more appropriate state or federal protections) general formality of the hearing may efficient and less costly than resolving to that regulation. vary, particularly depending on whether the disputes in a court of law. Also, the petitioner is appearing pro se; an Resolving Disputes Efficiently determinations made in the single, expedited hearing is possible; and, the specialized venue of administrative An administrative hearing under the ALJ generally has 30 days after receipt hearings are likely to be more consistent final regulations will economically of the transcript of an oral hearing or than determinations made in multiple, benefit the small number of plans or after the filing of all documentary non-specialized court venues. arrangements that dispute state evidence if no oral hearing is conducted Benefits of the Regulation assertion of law or jurisdiction. The to reach a decision. Department foresees improved The Department cannot predict that The procedure established by these efficiencies through use of any or all of these conditions will exist, regulations will complement the criteria administrative hearings that are at the nor can it predict that any of these established by the criteria regulation. option of entities over which state factors represent a cost-savings. Together, the regulations will assist in jurisdiction has been asserted. An However, it is likely that the specialized accurately identifying MEWAs and administrative hearing allows the knowledge of ERISA that the ALJ will collectively bargained plans and ensure various parties to obtain a decision in a bring to the process will facilitate a that disputes over such classifications timely, efficient, and less costly manner prompt decision, reduce costs, and are resolved efficiently. For purposes of than is usual in federal or state court introduce a consistent standard to what its assessment of the economic impact proceedings, thus benefiting employers has been a confusion of decisions on of the regulations, the Department has and employees. regulatory authority. ALJ case histories attributed the net benefits of ensuring The Department’s analysis of costs will educate MEWAs and states by accurate determinations to the criteria involved in adjudication in a federal or articulating the characteristics of a regulation. It has attributed the net state court versus an administrative collectively bargained plan, which benefits of ensuring efficient resolution hearing assumes that parties seeking to clarity will in turn promote compliance of disputes to these procedural establish regulatory authority incur a with appropriate federal and state regulations. baseline cost to resolve the question of regulations. Participants and status in federal or state court Determining Jurisdiction Accurately and beneficiaries of arrangements that are proceeding. This baseline cost includes, Consistently newly identified as MEWAs will but is not limited to, expenditures for especially benefit from appropriate state The criteria regulation will reduce document production, attorney fees, oversight that provides for secure existing confusion about whether an filing fees, depositions, etc. Because contributions and paid-up claims. In its entity falls under the collective regulatory authority may be decided in Notice of Proposed Rulemaking, the bargaining agreement exception. motions or pleadings in cases where Department solicited comments on the However, given the wide variety of that issue is not primary, the direct cost comparative cost of a trial in federal or agreements, plans and arrangements, as of using only the courts as a decision- state court versus an administrative well as the potential for conflicting maker for such issues is too variable to hearing on the issue of whether an determinations where a MEWA is specify; however, custom and practice entity is a plan is established or conducting business in more than one indicate that the cost of an maintained under or pursuant to an state, some uncertainties might remain. administrative hearing is similar to or agreement or agreements that the The Department has therefore represents a cost savings compared with Secretary finds to be collective established a procedure for obtaining an the baseline cost of litigating in federal bargaining agreements for purposes of individualized hearing before a or state court. section 3(40) of ERISA. No comments Department of Labor ALJ and for final Because the procedures and concerning the comparative costs of a appeals to the Secretary or the evidentiary rules of an administrative trial versus an administrative hearing Secretary’s delegate to determine an hearing generally track the Federal were received. entity’s legal status. Rules of Civil Procedure and of Employers and employees will benefit Evidence, document production is C. Regulatory Flexibility Act from an administrative decision that similar for both an administrative The Regulatory Flexibility Act (5 provides greater assurance that the hearing and for a federal or state court U.S.C. 601 et seq.) (RFA) imposes entity will comply with applicable proceeding. Documents such as by-laws, certain requirements with respect to federal and state laws designed to administrative agreements, collective Federal rules that are subject to the protect welfare benefits. In addition, bargaining agreements, and other notice and comment requirements of

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section 553(b) of the Administrative (1) Reason for the Action. The very small portion of all small group Procedure Act (5 U.S.C. 551 et seq.) and Department is establishing a procedure health plans. Even if all 2,600 that are likely to have a significant for an administrative hearing so that potentially affected entities were to have economic impact on a substantial states and entities will be able to obtain fewer than 100 participants, they would number of small entities. Unless an a determination by the Secretary as to represent approximately one-tenth of agency certifies that a proposed rule whether a particular employee welfare one percent of all small group health will not have a significant economic benefit plan is established or plans. impact on a substantial number of small maintained under or pursuant to one or The Department is not aware of any entities, section 604 of the RFA requires more collective bargaining agreements source of information indicating the that the agency present a final for purposes of an exception to section number of instances in which state law regulatory flexibility analysis at the time 3(40) of ERISA. or jurisdiction has been asserted over of the publication of the notice of final (2) Objectives. The objective of these these entities, or the portion of those rulemaking describing the impact of the regulations is to make available to plans instances that involved the collective rule on small entities. Small entities an individualized procedure for bargaining agreement exception. include small businesses, organizations, obtaining a hearing before a Department However, in order to develop an and governmental jurisdictions. of Labor ALJ, and for appeals of an ALJ estimate of the number of plans or For purposes of analysis under the decision to the Secretary or the arrangements that might seek to clarify RFA, EBSA continues to consider a Secretary’s delegate. The procedure is their legal status by using an small entity to be an employee benefit appropriate for the resolution of a administrative hearing as proposed by plan with fewer than 100 participants. dispute regarding an entity’s legal status these regulations, the Department The basis of this definition is found in in situations where the jurisdiction or examined the number of lawsuits to section 104(a)(2) of ERISA, which law of a state has been asserted against which the Department had previously permits the Secretary of Labor to a plan that contends it meets the been a party. While this number is not prescribe simplified annual reports for exception for plans established or viewed as a measure of the incidence of pension plans that cover fewer than 100 maintained under or pursuant to one or the assertion of state jurisdiction, it is participants. Under section 104(a)(3), more collective bargaining agreements. considered the only reasonable available the Secretary may also provide for (3) Estimate of Small Entities proxy for an estimate of a maximum exemptions or simplified annual Affected. For purposes of this number of instances in which the reporting and disclosure for welfare discussion, the Department has deemed applicability of state requirements might benefit plans. Pursuant to the authority a small entity to be an employee benefit be at issue. of section 104(a)(3), the Department has plan with fewer than 100 participants. In recent years, the Department has previously issued at 29 CFR 2520.104– No small governmental jurisdictions are been a party to an average of 45 legal 20, 2520.104–21, 2520.104–41, affected. actions annually. The proportion of 2520.104–46 and 2520.104b-10 certain Based on Form 5500 filings and Form these lawsuits that involved a dispute simplified reporting provisions and M–1 filings by MEWAs pursuant to over state jurisdiction based on a plan’s limited exemptions from reporting and interim final rules published in the or an arrangement’s legal status is disclosure requirements for small plans, Federal Register on February 11, 2000 unknown. On the whole, 45 is therefore including unfunded or insured welfare (65 FR 7152), it is estimated that there considered a reasonable estimate of an benefit plans covering fewer than 100 about 2,600 entities that can be upper bound number of plans that could participants and which satisfy certain classified as either collectively have been a party to a lawsuit involving other requirements. bargained plans or as MEWAs; however, a determination of the plan’s legal Further, while some large employers EBSA believes that a very small number status. Because this procedural may have small plans, in general most of these arrangements will have fewer regulation and the related criteria small plans are maintained by small than 100 participants. By their nature, regulation are expected to reduce the employers. Thus, EBSA believes that the affected arrangements must involve number of disputes, the Department assessing the impact of this final rule on at least two employers, which decreases assumes that 45 represents a small plans is an appropriate substitute the likelihood of coverage of fewer than conservatively high estimate of the for evaluating the effect on small 100 participants. Also, underlying goals number of plans or arrangements that entities. The definition of small entity of the formation of these arrangements, would petition for an administrative considered appropriate for this purpose such as gaining purchasing and hearing. Of all small plans and differs, however, from a definition of negotiating power through economies of arrangements, then, the greatest number small business that is based on size scale, improving administrative of plans or arrangements likely to standards promulgated by the Small efficiencies, and gaining access to petition for an administrative hearing Business Administration (SBA) (13 CFR additional benefit design features, are represents a tiny fraction of the total 121.201) pursuant to the Small Business not readily accomplished if the group of number of small plans. Act (15 U.S.C. 631 et seq.). In its Notice covered lives remains small. In addition, the Department has of Proposed Rulemaking, EBSA The number of small plans found assumed that an entity’s exercise of the requested comments on the within the group of 2,600 collectively opportunity to petition for a finding will appropriateness of the size standard bargained plans or MEWAs is about 200, generally be less costly than available used; no comments were received. or eight percent. The Employee Benefits alternatives. Accordingly, the On this basis, EBSA has determined Supplement to the 1993 Current Department has concluded that these that this rule does not have a significant Population Survey and a 1993 Small regulations will not have a significant economic impact on a substantial Business Administration survey of economic impact on a substantial number of small entities. In support of retirement and other benefit coverages number of small entities. this determination, and in an effort to in small firms indicate that there are (4) Reporting and Recordkeeping. In provide a sound basis for this more than 2.5 million private group most cases, the records that will be used conclusion, EBSA has prepared the health plans with fewer than 100 to support a petition for a hearing following final regulatory flexibility participants. Thus, the 200 small pursuant to these procedures will be analysis. entities potentially affected represent a maintained by plans and MEWAs in the

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ordinary course of their business. will have a beneficial effect on MEWAs, industries, or federal, state, or local Certain documents, such as affidavits, state insurance regulators, small government agencies, or geographic would likely be required to be prepared employers who offer group health regions; or (3) significant adverse effects specifically for purposes of the petition. coverage, and plan participants. No on competition, employment, It is assumed that documents will most other significant alternatives that would investment, productivity, innovation, or often be assembled and drafted by minimize the economic impact on small on the ability of United States-based attorneys, although this is not required entities have been identified. enterprises to compete with foreign- by the express terms of the procedure. Participating in an administrative based enterprises in domestic or export (5) Duplication. No federal rules have hearing to determine legal status is a markets. been identified that duplicate, overlap, voluntary undertaking on the part of a F. Unfunded Mandates Reform Act or conflict with the final rule. plan or arrangement. It would be (6) Alternatives. The regulations are inappropriate to create an exemption for For purposes of the Unfunded based on the consensus report of the small entities under the regulation Mandates Reform Act of 1995 (2 U.S.C. Committee. Recognizing that guidance because small entities are as much in 1501 et seq.), as well as Executive Order was needed in clarifying collective need of clarification of their legal status 12875, this proposed rule does not bargaining exceptions to the MEWA as are larger entities. include any federal mandate that may regulation, in 1995, the Department had result in expenditures by state, local, or published a Notice of Proposed D. Paperwork Reduction Act tribal governments, or the private sector, Rulemaking on Plans Established or In accordance with the Paperwork which may impose an annual burden of Maintained Under or Pursuant to Reduction Act of 1995 (PRA 95) (44 $100 million. Collective Bargaining Agreements in the U.S.C. 3501 et seq.), the Department G. Executive Order 13132 Federal Register (60 FR 39209). Under submitted the information collection the terms of the 1995 NPRM, it would request (ICR) included in the Procedures When an agency promulgates a have been within the authority of state for Administrative Hearings Regarding regulation that has federalism insurance regulators to identify and Plans Established or Maintained implications, Executive Order 13132 (64 regulate MEWAs operating in their Pursuant to Collective Bargaining FR 43255, Aug. 10, 1999) requires the jurisdictions. The 1995 proposal did not Agreements under section 3(40)(A) of Agency to provide a federalism establish a method for obtaining ERISA to the Office of Management and summary impact statement. Pursuant to individual findings by the Department. Budget (OMB) for review and clearance section 6(c) of the Order, such a The Department received numerous at the time the NPRM was published in statement must include a description of comments on the NPRM expressing the Federal Register (65 FR 64498). A the extent of the agency’s consultation concerns about plans’ abilities to meet request for comments on the ICR was with State and local officials, a the standards set forth in the NPRM. included in the NPRM. No comments summary of the nature of their concerns Commenters also objected to granting were received about the ICR, and no and the agency’s position supporting the authority to state regulators for changes have been made to the ICR in need to issue the regulation, and a determining whether a particular connection with this Notice of Final statement of the extent to which the agreement was a collective bargaining Rulemaking. OMB subsequently concerns of the State have been met. This regulation has Federalism agreement. Commenters strongly approved the ICR under control number implications because it sets forth preferred that determination of whether 1210–0119. The approval will expire on standards and procedures for an ALJ a plan was established under or January 31, 2004. hearing for determining whether certain pursuant to a collective bargaining Agency: Employee Benefits Security entities may be regulated under certain agreement lie with a federal agency and Administration, Department of Labor. not with individual states. Title: Petition for Finding under state laws or whether such state laws are Based on the comments received, the section 3(40) of ERISA. preempted with respect to such entities. Department turned to negotiated OMB Number: 1210–0119. The state laws at issue are those that rulemaking as an appropriate method of Affected Public: Business or other for- regulate the business of insurance. A developing a revised Notice of Proposed profit; not-for-profit institutions. member of the National Association of Rulemaking. In September 1998, the Respondents: 45. Insurance Commissioners (NAIC), Secretary established the Committee Responses: 45. representing the interest of state under the NRA. The Committee Average Time Per Response: 32 hours. governments in the regulation of membership was chosen from the Estimated Total Burden Hours: 1. insurance, participated in the organizations that submitted comments Estimated Total Burden Cost negotiations throughout the negotiated on the Department’s August 1995 NPRM (Operating and Maintenance): $104,100. rulemaking process that provided the and from the petitions and nominations basis for this regulation. for membership received in response to E. Small Business Regulatory In response to comments from the a Department Notice of Intent. These Enforcement Fairness Act public about the proposed rule, the regulations are based on the The rule being issued here is subject NAIC raised a concern that the process Committee’s consensus on the need for to the Congressional Review Act by which the Department issues ALJ an individualized administrative provisions of the Small Business determinations regarding the proceeding in limited circumstances for Regulatory Enforcement Fairness Act of collectively bargained status of entities determining the legal status of an entity. 1996 (5 U.S.C. 801 et seq.) and has been should move forward as quickly as Based on the fact that the Committee transmitted to Congress and the possible and not result in a stay of state represented a cross section of the state, Comptroller General for review. The enforcement proceedings against federal, association, and private sector rule is not a ‘‘major rule’’ as that term MEWAs. The final regulation insurance organizations concerned with is defined in 5 U.S.C. 804, because it is specifically states that the proceedings these issues, the Department believes not likely to result in (1) An annual shall be conducted as expeditiously as that, as an alternative to the 1995 effect on the economy of $100 million possible and that the parties shall make NPRM, these regulations accomplish the or more; (2) a major increase in costs or every effort to avoid delay at each stage stated objectives of the Secretary and prices for consumers, individual of the proceeding. The companion

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regulation that establishes criteria for published by the Department’s Office of (f) Secretary means the Secretary of determining whether an employee Administrative Law Judges in subpart A Labor, and includes, pursuant to any benefit plan is established or of 29 CFR part 18. These proceedings delegation or sub-delegation of maintained under or pursuant to one or shall be conducted as expeditiously as authority, the Assistant Secretary for more collective bargaining agreements possible, and the parties shall make Employee Benefits Security or other for purposes of section 3(40) of ERISA every effort to avoid delay at each stage employee of the Employee Benefits provides that ALJ proceedings under of the proceedings. Security Administration. this regulation are not intended to (g) Section 3(40) Finding Proceeding provide the basis for a stay or delay of § 2570.151 In general. means a proceeding before the Office of a state administrative or court If there is an attempt to assert state Administrative Law Judges (OALJ) proceeding or enforcement of a jurisdiction or the application of state relating to whether the Secretary finds subpoena. law, either by the issuance of a state an entity to be a plan to be established administrative or court subpoena to, or or maintained under or pursuant to one List of Subjects in 29 CFR Part 2570 the initiation of administrative or or more collective bargaining Administrative practice and judicial proceedings against, a plan or agreements within the meaning of procedure, Claims, Employee benefit other arrangement that alleges it is section 3(40) of ERISA. plans, Government employees, Law covered by title I of ERISA, 29 U.S.C. enforcement, Penalties, Pensions, 1003, the plan or other arrangement may § 2570.153 Parties. Reporting and recordkeeping petition the Secretary to make a finding For section 3(40) Finding requirements. under section 3(40)(A)(i) of ERISA that Proceedings, this section shall apply ■ For the reasons set out in the preamble, it is a plan established or maintained instead of 29 CFR 18.10. Part 2570 of Chapter XXV of Title 29 of under or pursuant to an agreement or (a) The term ‘‘party’’ with respect to the Code of Federal Regulations is agreements that the Secretary finds to be a Section 3(40) Finding Proceeding amended to read as follows: collective bargaining agreements for means the petitioner and the purposes of section 3(40) of ERISA. respondents. PART 2570—[AMENDED] (b) States not named in the petition § 2570.152 Definitions. may participate as parties in a Section ■ 1. The authority citation for part 2570 For section 3(40) Finding 3(40) Finding Proceeding by notifying is revised to read as follows: Proceedings, this section shall apply the OALJ and the other parties in Authority: 5 U.S.C. 8477, 29 U.S.C. instead of the definitions in 29 CFR writing prior to the date for filing a 1002(40), 1021, 1108, 1132, 1135; sec. 102, 18.2. response to the petition. After the date Reorganization Plan No. 4 of 1978, 43 FR (a) ERISA means the Employee for service of responses to the petition, 47713, 3 CFR, 1978 Comp. p. 332, and E.O. Retirement Income Security Act of 1974, 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. a state not named in the petition may 275; Secretary of Labor’s Order 1–2003, 68 et seq., 29 U.S.C. 1001, et seq., as intervene as a party only with the FR 5374 (Feb. 3, 2003). amended. consent of all parties or as otherwise (b) Order means the whole or part of ordered by the ALJ. ■ 2. Add new Subpart H to read as fol- a final procedural or substantive (c) The Secretary of Labor shall be lows: disposition by the administrative law named as a ‘‘respondent’’ to all actions. Subpart H—Procedures for Issuance of judge of a matter under section 3(40) of (d) The failure of any party to comply Findings Under ERISA Sec. 3(40) ERISA. No order will be appealable to with any order of the ALJ may, at the Sec. the Secretary except as provided in this discretion of the ALJ, result in the 2570.150 Scope of rules. subpart. denial of the opportunity to present 2570.151 In general. (c) Petition means a written request evidence in the proceeding. 2570.152 Definitions. under the procedures in this subpart for 2570.153 Parties. a finding by the Secretary under section § 2570.154 Filing and contents of petition. 2570.154 Filing and contents of petition. 3(40) of ERISA that a plan is established (a) A person seeking a finding under 2570.155 Service. or maintained under or pursuant to one section 3(40) of ERISA must file a 2570.156 Expedited proceedings. written petition by delivering or mailing 2570.157 Allocation of burden of proof. or more collective bargaining 2570.158 Decision of the Administrative agreements. it to the Chief Docket Clerk, Office of Law Judge. (d) Petitioner means the plan or Administrative Law Judges (OALJ), 800 2570.159 Review by the Secretary. arrangement filing a petition. K Street, NW., Suite 400, Washington, (e) Respondent means: DC 20001–8002, or by making a filing by § 2570.150 Scope of rules. (1) A state government any electronic means permitted under The rules of practice set forth in this instrumentality charged with enforcing procedures established by the OALJ. subpart H apply to ‘‘section 3(40) the law that is alleged to apply or which (b) The petition shall— Finding Proceedings’’ (as defined in has been identified as asserting (1) Provide the name and address of § 2570.152(g)), under section 3(40) of jurisdiction over a plan or other the entity for which the petition is filed; the Employee Retirement Income arrangement, including any agency, (2) Provide the names and addresses Security Act of 1974 (ERISA or the Act). commission, board, or committee of the plan administrator and plan Refer to 29 CFR 2510.3–40 for the charged with investigating and sponsor(s) of the plan or other definition of relevant terms of section enforcing state insurance laws, arrangement for which the finding is 3(40) of ERISA, 29 U.S.C. 1002(40). To including parties joined under sought; the extent that the regulations in this § 2570.153; (3) Identify the state or states whose subpart differ from the regulations in (2) The person or entity asserting that law or jurisdiction the petitioner claims subpart A of 29 CFR part 18, the state law or state jurisdiction applies to has been asserted over the petitioner, regulations in this subpart apply to the petitioner; and provide the addresses and names of matters arising under section 3(40) of (3) The Secretary of Labor; and responsible officials; ERISA rather than the rules of (4) A state not named in the petition (4) Include affidavits or other written procedure for administrative hearings that has intervened under § 2570.153(b). evidence showing that:

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(i) State jurisdiction has been asserted document shall certify to the manner motion to file an opposition in response over or legal process commenced and date of service. to the motion. against the petitioner pursuant to state (c) By the Office of Administrative (e) Following the timely receipt by the law; Law Judges. Service of orders, decisions administrative law judge of statements (ii) The petitioner is an employee and all other documents shall be made in response to the motion, the welfare benefit plan as defined at to all parties of record by regular mail administrative law judge may advance section 3(1) of ERISA (29 U.S.C. to their last known address. pleading schedules, discovery 1002(1)) and 29 CFR 2510.3–1 and is (d) Form of pleadings (1) Every schedules, prehearing conferences, and covered by title I of ERISA (see 29 pleading shall contain information the hearing, as deemed appropriate; U.S.C. 1003); indicating the name of the Employee provided, however, that a hearing on the (iii) The petitioner is established or Benefits Security Administration merits shall not be scheduled with less maintained for the purpose of offering (EBSA) as the agency under which the than five (5) working days notice to the or providing benefits described in proceeding is instituted, the title of the parties, unless all parties consent to an section 3(1) of ERISA (29 U.S.C. proceeding, the docket number (if any) earlier hearing. 1002(1)) to employees of two or more assigned by the OALJ and a designation (f) When an expedited hearing is held, employers (including one or more self- of the type of pleading or paper (e.g., the decision of the administrative law employed individuals) or their notice, motion to dismiss, etc.). The judge shall be issued within twenty (20) beneficiaries; pleading or paper shall be signed and days after receipt of the transcript of any (iv) The petitioner satisfies the criteria shall contain the address and telephone oral hearing or within twenty (20) days in 29 CFR 2510.3–40(b); and number of the party or person after the filing of all documentary (v) Service has been made as provided representing the party. Although there evidence if no oral hearing is in § 2570.155. are no formal specifications for conducted. (5) The affidavits shall set forth such documents, they should be typewritten § 2570.157 Allocation of burden of proof. facts as would be admissible in when possible on standard size 81⁄2 x 11 inch paper. For purposes of a final decision under evidence in a proceeding under 29 CFR § 2570.158 (Decision of the (2) Illegible documents, whether part 18 and shall show affirmatively that Administrative Law Judge) or handwritten, typewritten, photocopies, the affiant is competent to testify to the § 2570.159 (Review by the Secretary), or otherwise, will not be accepted. matters stated therein. The affidavit or the petitioner shall have the burden of Papers may be reproduced by any other written evidence must set forth proof as to whether it meets 29 CFR duplicating process provided all copies specific facts showing the factors 2510.3–40. required under paragraph (b)(4) of this are clear and legible. section. § 2570.158 Decision of the Administrative § 2570.156 Expedited proceedings. Law Judge. § 2570.155 Service. For section 3(40) Finding For section 3(40) finding proceedings, For section 3(40) proceedings, this Proceedings, this section shall apply this section shall apply instead of 29 section shall apply instead of 29 CFR instead of 29 CFR 18.42. CFR 18.57. 18.3. (a) At any time after commencement (a) Proposed findings of fact, (a) In general. Copies of all documents of a proceeding, any party may move to conclusions of law, and order. Within shall be served on all parties of record. advance the scheduling of a proceeding, twenty (20) days of filing the transcript All documents should clearly designate including the time for conducting of the testimony, or such additional the docket number, if any, and short discovery. time as the administrative law judge title of all matters. All documents to be (b) Except when such proceedings are may allow, each party may file with the filed shall be delivered or mailed to the directed by the Chief Administrative administrative law judge, subject to the Chief Docket Clerk, Office of Law Judge or the administrative law judge’s discretion under 29 CFR 18.55, Administrative Law Judges (OALJ), 800 judge assigned, any party filing a motion proposed findings of fact, conclusions of K Street, NW., Suite 400, Washington, under this section shall: law, and order together with the DC 20001–8002, or to the OALJ Regional (1) Make the motion in writing; supporting brief expressing the reasons Office to which the proceeding may (2) Describe the circumstances for such proposals. Such proposals and have been transferred for hearing. Each justifying advancement; brief shall be served on all parties, and document filed shall be clear and (3) Describe the irreparable harm that shall refer to all portions of the record legible. would result if the motion is not and to all authorities relied upon in (b) By parties. All motions, petitions, granted; and support of each proposal. pleadings, briefs, or other documents (4) Incorporate in the motion (b) Decision based on oral argument shall be filed with the Office of affidavits to support any representations in lieu of briefs. In any case in which Administrative Law Judges with a copy, of fact. the administrative law judge believes including any attachments, to all other (c) Service of a motion under this that written briefs or proposed findings parties of record. When a party is section shall be accomplished by of fact and conclusions of law may not represented by an attorney, service shall personal delivery, or by facsimile, be necessary, the administrative law be made upon the attorney. Service of followed by first class, prepaid, U.S. judge shall notify the parties at the any document upon any party may be mail. Service is complete upon personal opening of the hearing or as soon made by personal delivery or by mailing delivery or mailing. thereafter as is practicable that he or she by first class, prepaid U.S. mail, a copy (d) Except when such proceedings are may wish to hear oral argument in lieu to the last known address. The Secretary required, or unless otherwise directed of briefs. The administrative law judge shall be served by delivery to the by the Chief Administrative Law Judge shall issue his or her decision at the Associate Solicitor, Plan Benefits or the administrative law judge close of oral argument, or within 30 Security Division, ERISA Section 3(40) assigned, all parties to the proceeding in days thereafter. Proceeding, PO Box 1914, Washington, which the motion is filed shall have ten (c) Decision of the administrative law DC 20013. The person serving the (10) days from the date of service of the judge. Within 30 days, or as soon as

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possible thereafter, after the time proceeding, is a plan established or a review of the record established by the allowed for the filing of the proposed maintained under or pursuant to administrative law judge. findings of fact, conclusions of law, and collective bargaining for the purposes of (d) The Secretary may, in his or her order, or within thirty (30) days after section 3(40) of ERISA. discretion, allow the submission of receipt of an agreement containing § 2570.159 Review by the Secretary. supplemental briefs by the parties to the consent findings and order disposing of proceeding. the disputed matter in whole, the (a) A request for review by the Secretary of an appealable decision of (e) The Secretary shall issue a administrative law judge shall make his the administrative law judge may be decision as promptly as possible, or her decision. The decision of the made by any party. Such a request must affirming, modifying, or setting aside, in administrative law judge shall include be filed within 20 days of the issuance whole or in part, the decision under findings of fact and conclusions of law, of the final decision or the final decision review, and shall set forth a brief with reasons therefore, upon each of the administrative law judge will statement of reasons therefor. Such material issue of fact or law presented become the final agency order for decision by the Secretary shall be the on the record. The decision of the purposes of 5 U.S.C. 701 et seq. final agency action within the meaning administrative law judge shall be based (b) A request for review by the of 5 U.S.C. 704. upon the whole record. It shall be Secretary shall state with specificity the Signed this 31st day of March, 2003. supported by reliable and probative issue(s) in the administrative law evidence. Such decision shall be in judge’s final decision upon which Ann L. Combs, accordance with the regulations found review is sought. The request shall be Assistant Secretary, Employee Benefits at 29 CFR 2510.3–40 and shall be served on all parties to the proceeding. Security Administration. limited to whether the petitioner, based (c) The review by the Secretary shall [FR Doc. 03–8114 Filed 4–7–03; 8:45 am] on the facts presented at the time of the not be a de novo proceeding but rather BILLING CODE 4510–29–P

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Part IV

Department of Labor Employee Benefits Security Administration

29 CFR Part 2520, 2560, and 2570 Reporting by Multiple Employer Welfare Arrangements and Certain Other Entities That Offer or Provide Coverage for Medical Care to the Employees of Two or More Employers; Assessment of Civil Penalties under Section 502(c)(5) of ERISA; Procedures for Administrative Hearings Regarding the Assessment of Civil Penalties Under Section 502(c)(5) of ERISA; Final Rules

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DEPARTMENT OF LABOR State Regulation, are available by calling form and such manner as the Secretary EBSA toll free at 1–866–444–3272 and may require for the purpose of Employee Benefits Security on the Internet at: http://www.dol.gov/ determining the extent to which the Administration ebsa. In addition, the EBSA Help Desk requirements of Part 7 are being carried (telephone (202) 693–8360) is available out in connection with such benefits. 29 CFR Part 2520 to answer questions (such as whether an The term ‘‘multiple employer welfare arrangement’’ is defined in section 3(40) RIN 1210–AA64 entity is required to file a report) and to provide assistance in completing a of ERISA to mean, in pertinent part an Reporting by Multiple Employer report. If you have other questions about employee welfare benefit plan, or any Welfare Arrangements and Certain this reporting requirement, or about the other arrangement (other than an Other Entities that Offer or Provide requirements of the recent health care employee welfare benefit plan), which Coverage for Medical Care to the laws in Part 7 of ERISA, you may call is established or maintained for the Employees of Two or More Employers the Office of Health Plan Standards and purpose of offering or providing Compliance Assistance at 202–693– [welfare plan benefits] to the employees AGENCY: Employee Benefits Security 8335. If you have questions about the of two or more employers (including Administration, Department of Labor. definition of a MEWA (including the one or more self-employed individuals), ACTION: Final rule. exception for collectively bargained or to their beneficiaries, except that plans under 29 CFR 2510.3–40), or such term does not include any such SUMMARY: This document contains a coverage questions concerning whether plan or other arrangement which is final rule governing certain reporting a plan is or is not subject to the established or maintained under or requirements under Title I of the provisions of Title I of ERISA, you may pursuant to one or more agreements Employee Retirement Income Security call the Office of Regulations and which the Secretary of Labor finds to be Act of 1974 (ERISA) for multiple Interpretations, Division of Coverage, collective bargaining agreements, by a employer welfare arrangements Reporting and Disclosure at 202–693– rural electric cooperative, or by a rural (MEWAs) and certain other entities that 8500. Copies of Form M–1 filings are telephone cooperative association. offer or provide coverage for medical available over the Internet at: For purposes of this definition, two or care to the employees of two or more askebsa.dol.gov/epds. more trades or businesses, whether or employers. The final rule generally not incorporated, shall be deemed a A. Background requires the administrator of a MEWA, single employer if such trades or and certain other entities, to file a form The Health Insurance Portability and businesses are within the same control with the Secretary of Labor for the Accountability Act of 1996 (Pub. L. group, the term ‘‘control group’’ means purpose of determining whether the 104–191) (HIPAA) amended ERISA to a group of trades or businesses under requirements of certain recent health provide for, among other things, common control, and the determination care laws are being met. improved portability and continuity of of whether a trade or business is under DATES: Effective Date: This final rule is health insurance coverage. The Mental ‘‘common control’’ with another trade or effective January 1, 2004. Health Parity Act of 1996 (Pub. L. 104– business shall be determined under Compliance Dates: If a filing is 204, as amended by Pub. L. 107–116 regulations of the Secretary applying required for an entity, it is due on or and Pub. L. 107–147) (MHPA) amended principles similar to the principles before each March 1 following the ERISA to provide parity in the applied in determining whether period to be reported. A 90-day application of annual and lifetime dollar employees of two or more trades or origination report is also required to be limits for certain mental health benefits businesses are treated as employed by a filed as described in paragraph (e)(2)(ii) with such dollar limits on medical and single employer under section 4001(b), of §2520.101–2. (Therefore, the first surgical benefits. The Newborns’ and except that, for purposes of this filing required under this final rule is Mothers’ Health Protection Act of 1996 paragraph, common control shall not be the 2003 Form M–1, which is generally (Pub. L. 104–204) (Newborns’ Act) based on an interest of less than 25 required to be filed by March 1, 2004. amended ERISA to provide new percent. 1 protections for mothers and their Prior to that date, filings are due in An interim final rule implementing newborn children with regard to the accordance with §2520.101–2 contained the MEWA reporting requirement was length of hospital stays in connection in the 29 CFR revised as of July 1, 2002. published in the Federal Register on with childbirth. The Women’s Health FOR FURTHER INFORMATION CONTACT: February 11, 2000 at 65 FR 7152. The and Cancer Rights Act of 1998 interim final rule generally required the Amy J. Turner or Deborah S. Hobbs, (WHCRA) (Pub. L. 105–277) amended Employee Benefits Security administrator of a MEWA (or certain ERISA to provide individuals new rights other entity that offers or provides Administration, U.S. Department of for reconstructive surgery in connection Labor, Room C–5331, 200 Constitution coverage for medical care to the with a mastectomy. All of the foregoing employees of two or more employers) to Avenue, NW., Washington, DC 20210 provisions are set forth in part 7 of (telephone (202) 693–8335). file the Form M–1 Annual Reporting subtitle B of title I of ERISA (Part 7). Requirement for Multiple Employer SUPPLEMENTARY INFORMATION: HIPAA also added a new section Customer Service Information: The 101(g) to ERISA providing the Secretary 1 This provision was added to ERISA by the Department of Labor’s Employee with the authority to require, by Multiple Employer Welfare Arrangement Act of Benefits Security Administration regulation, annual MEWA reporting. 1983, Sec. 302(b), Pub. L. 97–473, 96 Stat. 2611, (EBSA) is committed to working Specifically, this section provides that 2612 (29 U.S.C. 1002(40)), which also amended section 514(b) of ERISA. Section 514(a) of ERISA together with administrators to help the Secretary of Labor may, by provides that state laws that relate to employee them comply with this filing regulation, require multiple employer benefit plans are generally preempted by ERISA. requirement. The Form M–1, as well as welfare arrangements providing benefits Section 514(b) sets forth several exceptions to the the publication MEWAs; Multiple consisting of medical care (within the general rule of section 514(a) and subjects employee benefit plans that are MEWAs to various levels of Employer Welfare Arrangements Under meaning of section 733(a)(2)) which are state regulation depending on whether the MEWA the Employee Retirement Income not group health plans to report, not is fully insured. Sec. 302(b), Pub. L. 97–473, 96 Stat. Security Act: A Guide to Federal and more frequently than annually, in such 2611, 2613 (29 U.S.C. 1144(b)(6)).

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Welfare Arrangements and Certain exception, today the Department is also The number of employees receiving Entities Claiming Exception with the publishing a final regulation under coverage for medical care under the Secretary of Labor for the purpose of ERISA section 3(40) setting forth MEWA or ECE is at least 50 percent determining whether the requirements specific criteria that, if met and if greater than the number of such of part 7 are being met. certain other factors set forth in the employees on the last day of the This reporting requirement also regulation are not present, constitute a previous calendar year (unless the responds to a 1992 recommendation of finding by the Secretary of Labor that a increase is due to a merger with another the General Accounting Office (GAO). plan is maintained pursuant to one or MEWA or ECE under which all MEWAs See ‘‘Employee Benefits: States Need more collective bargaining agreements and ECEs that participate in the merger Labor’s Help Regulating Multiple and, therefore, excluded from the were last originated at least three years Employer Welfare Arrangements,’’ definition of a MEWA. See 29 CFR prior to the merger). March 1992, GAO/HRD–92–40. In that 2510.3–40. In a separate regulation also (b) Excepted Benefits. The final rule report, the GAO detailed a history of published today, the Department adopts adds a definition of ‘‘excepted benefits’’ fraud and abuse by some MEWAs and a process pursuant to which a plan or and defines the term by reference to recommended that the Department other arrangement may, if subject to an section 733(c) of ERISA and 29 CFR develop a mechanism to help states action under state law, seek an 2590.732(b). This definition was added identify MEWAs. The problems pointed individualized finding from a because of a clarification that MEWAs out in that report continue to this date. Department of Labor Administrative or ECEs that provide coverage consisting By the end of Fiscal Year 2002, the Law Judge (ALJ). See 29 CFR 2570.150 solely of excepted benefits are not Department had initiated approximately through 2570.159. required to report under this section. 522 civil and 90 criminal investigations However, because some entities may This clarification is discussed in more (with 70 criminal convictions) affecting incorrectly claim the exemption under detail below, under the heading Persons over 1.825 million participants and § 2510.3–40, this final rule retains the required to report. requirement that ECEs file a Form M–1 beneficiaries and involving monetary (2) Persons Required To Report violations of over $121.6 million. with the Department for three years During the last three years, the following an ‘‘origination’’ (the three- Paragraph (c) of the final rule sets Department has had an average of over year rule). Of course, if an entity does forth the persons required to report 100 MEWA cases under active have a determination from an ALJ that under the final rule. As under the interim final rule, the final rule requires investigation. Thus, the identification of it is a collectively-bargained plan, that filing by the administrator of a MEWA problem MEWAs and correction of entity does not have to file while the that provides benefits consisting of violations remains an important opinion remains in effect unless the medical care, whether or not the MEWA investigative priority and consumes circumstances underlying the is a group health plan. It also requires substantial resources. determination change. In the preamble to the February 2000 Moreover, because, some operators of filing by the administrator of an ECE interim final regulation, the Department insurance fraud schemes continue to that offers or provides coverage sought comments from those affected. market health coverage to small consisting of medical care during the After consideration of all the comments employers under the guise of first three years after the ECE is received on the MEWA reporting collectively bargained plans using, originated. The final rule also contains language requirement, the Department is among other things, sham unions and to clarify the scope of the reporting publishing this final rule. The final rule collective bargaining agreements, in an requirement. The clarifications were does not significantly modify the effort to avoid state insurance initially included in question-and- reporting requirement established in the regulation, the retention of the three- answer guidance published by the interim rule. Instead, several year rule provides an important Department in April and June of 2000, clarifications were added to make enforcement tool for the Department and are described in the Instructions to clearer the application of the reporting and state insurance departments, while imposing little burden on bona fide the Form M–1 for the Years 2000, 2001, requirement to different types of collectively bargained plans. Finally, and 2002. arrangements. Some of these bona fide collectively bargained plans (a) Exception for coverage consisting clarifications were initially issued in the and their sponsors also benefit from the solely of excepted benefits. First, form of question-and-answer guidance early identification of sham MEWA because coverage consisting solely of during the period of interim operators. excepted benefits is not subject to the effectiveness of this rule and were Under the final rule, as under the requirements of part 7 of ERISA included in the instructions to the Form interim final rule, the term origination (pursuant to ERISA sections 732 and M–1 in Years 2000, 2001, and 2002. continues to be defined as the 733 and § 2590.732), the final rule B. Overview of the Final Rule occurrence of any of the following three provides that a MEWA or ECE is not events ‘‘ (1) The MEWA or ECE first subject to this filing requirement if it (1) Definitions begins offering or providing coverage for provides coverage that consists solely of (a) Entity Claiming Exception (ECE). medical care to the employees of two or excepted benefits. However, if the The final rule retains the term ‘‘entity more employers (including one or more MEWA or ECE provides coverage that claiming exception’’ or ‘‘ECE.’’ An self-employed individuals); (2) The consists of both excepted benefits and ‘‘ECE’’ is defined as an entity that MEWA or ECE begins offering or other benefits for medical care that are claims it is not a MEWA due to the providing coverage for medical care to not excepted benefits (and is, therefore, exception in section 3(40)(A)(i) of the employees of two or more employers subject to the requirements of part 7 of ERISA. In general, this exception is for (including one or more self-employed ERISA), the administrator of the MEWA entities that are established or individuals) after a merger with another or ECE is required to file the Form M– maintained under or pursuant to one or MEWA or ECE (unless all of the MEWAs 1. more agreements that the Secretary or ECEs that participate in the merger (b) Exceptions for coverage not subject finds to be collective bargaining previously were last originated at least to ERISA. In addition, because agreements. In connection with this three years prior to the merger); or (3) governmental plans, church plans, and

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plans maintained solely for the purpose Commenters argued that arrangements over a period of time include the need of complying with workmen’s where businesses maintain significant to obtain financing, the need to obtain compensation laws (as defined in ownership interests in other businesses various regulatory approvals, and the sections 4(b)(1), 4(b)(2) and 4(b)(3) of and provide benefits under the same need to ‘‘iron out the details’’ of the ERISA, respectively) are not covered by health plan are not the kinds of transaction. Title I of ERISA, the final rule provides arrangements that historically have been The Department agrees with the that a MEWA or ECE is not subject to found to lead to problems with fraud comment and has modified the final the filing requirement if it is a and failure to provide promised rule to create an exception for governmental plan, church plan, or plan benefits. The Department agrees and has arrangements that would not constitute maintained solely for the purpose of modified the final rule accordingly. MEWAs but for their creation in complying with workmen’s The final rule clarifies that a filing is connection with a change in control of compensation laws. Similarly, the final not required on behalf of certain plans businesses (such as a merger or rule also provides that a MEWA or ECE or other arrangements that provide acquisition) and which are temporary in is not subject to the filing requirement coverage to the employees of two or nature (i.e., do not extend beyond the under this section if it provides more employers that share a common end of the plan year following the plan coverage only through governmental control interest. Specifically, if an entity year in which the change in control plans, church plans, or plans would not constitute a MEWA or ECE occurs). The change in control must maintained solely for the purpose of but for the fact that it provides coverage occur for a purpose other than avoiding complying with workmen’s to the employees of two or more trades Form M–1 filing. compensation laws (or other or businesses that share a common (3) Very small number of persons who arrangements not covered by Title I of control interest of at least 25 percent at are not employees or former employees. ERISA, such as health insurance any time during the plan year (applying The last of the circumstances that will coverage offered to individuals other the principles applied under section not, by itself, trigger a filing is an than in connection with a group health 414(b) or (c) of the Internal Revenue exception for entities that would not be plan, known as individual market Code), a Form M–1 filing is not a MEWA or ECE but for the fact that coverage). However, if a MEWA required. However, while use of a 25 they cover a very small number of provides coverage both to group health percent test may result in a persons (excluding spouses and plans that meet the definition of a determination of common control for dependents) who are not employees or governmental plan, church plan, or plan purposes of the Form M–1 filing former employees of the plan sponsor. maintained solely for the purpose of requirement, common control generally For example, an arrangement may cover complying with workmen’s means, under sections 414 (b) and (c) of non-employee members of the board of compensation laws and to any group the Internal Revenue Code, an 80 directors of the plan sponsor or health plan that is subject to part 7 of percent interest in the case of a parent- individuals classified as independent ERISA, the MEWA is required to file the subsidiary group of trades or businesses contractors. The final rule provides that Form M–1. and a more than 50 percent interest in any entity is not required to file the (c) Other exceptions. Finally, the final the case of a brother-sister relationship Form M–1 if it would not be a MEWA rule also contains a clarification that among organizations controlled by five but for the fact that it provides coverage reporting is not required if an entity or fewer persons that are the same to persons who are not employees nor would not constitute a MEWA or ECE persons with respect to each former employees (including those but for any of the three circumstances organization. participants on COBRA continuation described below. (2) Temporary MEWAs created by a coverage) 2 of the sponsor (excluding (1) Common control interest of at least change in control. The second of these spouses and dependents) and the 25 percent. The first of these circumstances that will not, by itself, number of such persons does not exceed circumstances relates to the treatment of trigger a filing relates to temporary one percent of the total number of two or more trades or businesses as a arrangements providing medical employees or former employees covered single employer for purposes of the benefits to the employees of more than by the arrangement, determined as of definition of MEWA if the trades or one employer that are created by a the last day of the year to be reported businesses are within the same control change in control of the business. This (or, in the case of a 90-day origination group. Section 3(40)(a)(1)(B) defines the exception was suggested by a report, determined as of the 60th day term ‘‘control group’’ to mean a group commenter who argued that entities that following the origination date). of trades or businesses under common end up covering employees of another (d) Persons not excepted. Some control, and provides that trades or employer for a brief period of time by commenters argued that MEWAs that businesses that are part of the same virtue of a change in business are fully-insured should not be required ‘‘control group’’ are deemed to be a ownership should not be required to file to report. One commenter argued that single employer for purposes of the a Form M–1. The commenter suggested coverage under insurance contracts that definition of MEWA. It then states that that the Department define ‘‘temporary’’ have been approved by state regulators the determination of whether a trade or to mean that the arrangement does not complies with part 7 by virtue of this business is under ‘‘common control’’ extend beyond the end of the plan year with another trade or business is to be following the plan year in which the 2 The term ‘‘employee’’ is defined in section 3(7) determined under regulations of the change in control occurs. of ERISA as any individual employed by an Secretary applying principles similar to Commenters explained how change in employer, and includes all common law employees. the principles applied in determining control transactions may take place over See also National Mutual Insurance Company v. Darden, 503 U.S. 318 (1992) (‘‘Darden does not cite, whether employees of two or more a period of time, and the health plan for and we do not find, any provision [of ERISA] either trades or businesses are treated as a control group may therefore be giving specific guidance on the term’s meaning or employed by a single employer, except providing medical benefits to the suggesting that construing it to incorporate that common control shall not be based employees of more than one employer traditional agency law principles would thwart the congressional design or lead to absurd results. on an interest of less than 25 percent. for a temporary period. According to Thus, we adopt a common-law test for determining The Department has not issued any one source cited by a commenter, who qualifies as an ‘employee’ under ERISA regulations under this provision. reasons that a transaction may occur ***.’’)

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state approval. The final rule makes no of more than one employer.3 For this separately in this issue of the Federal change to the scope of the reporting reason the final regulation does not Register.4 In this regard, ERISA section requirement because the purpose of the create an exception from the filing 502(c)(5), as amended by HIPAA, Form M–1 filing requirement is largely requirement. provides for the assessment of a penalty to evaluate compliance with part 7 of The Department recognizes that other for the failure or refusal to file a report ERISA. The evaluation of part 7 arguments were also made on behalf of pursuant to section 101(g) of ERISA, as compliance requires a determination PEOs to support either a complete or amended by HIPAA. The penalty and that the group health plan is in limited exception from the requirement procedure regulations are designed to compliance both on the face of the plan to file a Form M–1. However, this parallel the procedures set forth in 29 documents (including the plan’s registration regulation allows the CFR 2560.502c–2 regarding civil insurance policy) and in operation. The Department to collect information to penalties under section 502(c)(2) of Form M–1 requires the administrator of facilitate compliance with the ERISA relating to reports required to be the MEWA to answer as to whether the requirements of part 7. As noted earlier, filed under ERISA section 101(b)(4). In it is also an important enforcement tool coverage it provides is in compliance general these regulations provide that, for the Department and state insurance with part 7. The answer to this question in the event of no filing, an incomplete departments and serves as the only should address compliance both on the filing, or a late filing, a penalty may national registry of MEWAs operating apply of up to $1,000 a day (or a higher face of the documents and in operation. throughout the United States. It also This evaluation is as important for fully- amount if adjusted pursuant to the responds to the GAO’s recommendation Federal Civil Penalties Inflation insured arrangements as it is for self- in its 1992 GAO report entitled ‘‘States insured arrangements. Adjustment Act of 1990, as amended by Need Labor’s Help Regulating Multiple the Debt Collection Improvement Act of Moreover, as noted earlier, the Form Employer Welfare Arrangements,’’ 1996) for each day that the M–1 reporting requirement is an where the GAO detailed a history of administrator of a MEWA or ECE fails important enforcement tool for the fraud and abuse by MEWAs and or refuses to file a complete report. For Department and state insurance recommended a federal MEWA information relating to administrative departments. While, in part, this registration requirement. GAO/HRD– hearings and appeals in connection with reporting requirement serves as a 92–40, March 1992. the assessment of civil penalties under vehicle for reviewing compliance with (3) Extensions section 502(c)(5) of ERISA, see 29 CFR the requirements of part 7 of ERISA, the 2570.90 through 2570.101 (published in Form M–1 also serves as the only An extension may be granted for filing this issue of the Federal Register). national registry of MEWAs operating reports if the administrator complies C. Regulatory Impact Analysis throughout the United States. For this with the extension procedure prescribed reason, it is important that fully-insured in the Instructions to the Form M–1. The total cost of the reporting One commenter argued that the MEWAs continue to file the Form M–1. requirement as implemented by this extension of time to file should be final rule is estimated to be $403,000, or One commenter asked what authority longer than the 60 days provided in the about $200 for each of the 2,000 entities the Department has to ask about Instructions to the Form M–1 in certain expected to be required to file the compliance with part 7 by insured special circumstances. Specifically, the annual reporting form for MEWAs, the group health plans, presumably because commenter stated that the 60-day period Form M–1. No additional cost is of the fact that section 502(b)(3) of is not adequate for a merger or attributable to the clarifying changes ERISA provides that the Secretary is not acquisition context. This comment has made in this final rule. Although the authorized to enforce any requirement been addressed in the final regulation benefits have not been quantified, EBSA of part 7 against a health insurance by creating an exception from the filing believes that the cost of the filing issuer offering health insurance requirement for a MEWA that is created requirement is more than justified by coverage in connection with a group by a change in control of businesses and the benefits associated with ensuring health plan. The Secretary does, is temporary in nature. (This exception uniform adherence to the requirements however, have authority to enforce the to the reporting requirement is and protections added to ERISA by requirements of part 7 against all group discussed above, under the discussion HIPAA, MHPA, the Newborns’ Act, and health plans, whether insured or self- of Persons Required to Report). WHCRA. HIPAA amended ERISA to add insured. (4) Civil Penalties and Procedures section 101(g), which authorizes the Secretary of Labor to require reporting Several comments on the MEWA/ECE Paragraph (g) of the final rule contains by MEWAs that are not group health reporting requirement were also a cross-reference for civil penalties and plans for the purpose of determining received from representatives of procedures. The penalty and procedure their compliance with part 7 of ERISA. Professional Employer Organizations regulations are being published (PEOs). In general, PEO representatives The principal intent of Congress in enacting this provision was to ensure have argued that, for a variety of 3 The Department has issued a number of reasons, they should be treated as ‘‘co- advisory opinions over the years under which an that all participants and beneficiaries of employers’’ and, accordingly, their arrangement providing benefits for medical care such arrangements receive these health group health plans should not be and sponsored by an employee leasing company care protections. was found to be a MEWA. See, e.g., Advisory The reporting requirement considered MEWAs. While PEOs have Opinion 91–17A to L.J. Darter, III (April 5, 1991); sought to distinguish themselves from Advisory Opinion 91–47A to Lee P. Jedziniak implemented by this final rule provides employee leasing companies on the (December 20, 1991); Advisory Opinion 92–04A to the most cost effective means of basis of a ‘‘co-employer’’ relationship Sandra Milburn (January 27, 1992); Advisory facilitating compliance with part 7 of Opinion 92–05A to Chuck Huff (January 27, 1992); ERISA, as well as with the full range of with employees, the Department is Advisory Opinion 92–07A to Lee P. Jedziniak unable to conclude that the group health (February 20, 1992); Advisory Opinion 93–29A to other Federal and State requirements plans maintained by PEOs, like the Alfred W. Gross (November 2, 1993); Advisory 4 plans maintained by employee leasing Opinion 95–22A to Dale Robison (August 25, 1995); Moreover, other relevant criminal penalties may and Advisory Opinion 95–29A to Kevin W. Ahern apply. See, e.g., ERISA § 501 and 18 U.S.C. 1021, companies, do not cover the employees (December 7, 1995). 1027, and 1035.

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that may apply to MEWAs under ERISA, Report of Employee Benefit Plan data actual experience to date may differ the Internal Revenue Code, the Public for the potential number of Entities from the estimate for several reasons, Health Service Act, and State insurance Claiming Exemption and multiple- the first of these being the limited level laws. The data collected as a result of employer group health plans that file of confidence in the original estimate. the filing requirement will ultimately the Form 5500, no information was Based on past history of non- serve as the only source of complete and available that specifically identified the compliance of MEWAs with a variety of uniform information identifying these universe of MEWAs that are not group regulatory requirements, the Department arrangements, helping Federal and State health plans under ERISA. assumes that the actual number of filers regulators to evaluate their compliance To develop the estimates used in the continues to reflect incomplete with all applicable requirements. analysis of the potential impact of the compliance with this still relatively new Evaluation of compliance based on the interim final rule, the Department filing requirement. Further, the information reported is significantly considered information from several Department is still in the process of more cost effective for both sources. The first of these was the GAO implementing its civil penalty governmental entities and MEWAs than study from 1992,5 which indicated there enforcement program to correct the alternative of active intervention by were about 1,000 MEWAs doing compliance failures, which faces the compliance examiners. business in the states in 1991. These same significant challenges in Ensuring compliance by these figures are not current, and the MEWA identifying non-filers as are faced in arrangements is beneficial to universe is known to be variable over developing reliable estimates of the participants and beneficiaries who are time relative to health insurance market number of MEWAs doing business at able to fully realize their rights under cost fluctuations. Surveys of association any given time. Finalization of this rule these statutes. The greater assurance of members 6 with respect to group health and the clarifications incorporated in compliance is also beneficial because plan sponsorship were also reviewed. the final rule may also help to ensure compliance by these arrangements with This information, adjusted that potentially affected parties are various provisions that apply to them conservatively for low response rates, aware of the filing requirement. has been shown to be inconsistent. suggested the existence of about 1,200 The Department still has no data to Although the provisions of Title I of health plans sponsored by associations. support a more accurate estimate of the ERISA generally supercede State laws The overlap between plan and non-plan filer universe than that represented by that relate to employee benefit plans, MEWAs within this number is unclear, actual filers. However, it reviewed the regulation of MEWAs is a joint however. available information on its active Federal and State responsibility A third source of information was a enforcement cases involving MEWAs to pursuant to ERISA. RAND Corporation analysis of the 1997 determine the degree to which those Because State insurance statutes are Robert Wood Johnson Foundation MEWAs had complied with the M–1 not uniform, an arrangement doing Employer Health Insurance Survey as it filing requirement. This information business in more than one State may be pertains to pooled purchasing showed that about 42% of the MEWAs required to comply with a range of arrangements.7 This analysis suggested undergoing investigation that were States’ varying requirements. the existence of 4,000 to 4,800 multiple required to file the M–1 had complied Identification of these entities through employer arrangements, including with the requirement. If this rate of non- this reporting requirement helps to collectively bargained group health compliance applies to all MEWAs, ensure that administrators of these plans, association plans, and MEWAs. about 1,400 MEWAs would be required arrangements are aware of the The data reviewed was establishment- to file the M–1 annually. requirements that apply, and that the based, and the imputation of the Because the rate of non-compliance protections intended to be provided are number of arrangements reported by may differ from that found in the actually implemented for the benefit of establishments to employer sponsored sample of enforcement cases, and employers and of participants who group health plans was thought to because the Department continues to obtain their group health coverage introduce additional uncertainty into believe that full compliance has not yet through these arrangements. the estimate of the possible universe of been achieved, it has selected 2,000 as Ancillary benefits arise from the filers. a conservative estimate of the number of public disclosure of this data. As a result of data limitations and potential filers of the M–1. This is Participants with greater access to uncertainty within available data, the approximately the mid-point between information about the arrangements Department conservatively estimated the number projected at the time of through which they obtain their group that about 2,700 entities would file publication of the interim final rule, and health coverage may better exercise Form M–1. A substantial degree of the 1,400 developed from the number of their rights in the event of a dispute uncertainty remained about this actual filers adjusted for what is known with the arrangement. The data estimate, and we reported a possible about non-compliance in the available collected also enhance capability to range of 1,000 to 4,000. Actual filer sample of MEWAs. conduct analysis of the market segment counts have been significantly lower, To develop the current cost estimate represented by MEWAs, which is useful totaling approximately 600 in each of of the cost of the filing requirement, the to policy makers in evaluating the role the three years (i.e., 1999–2001) for Department looked at the characteristics of these entities in providing access to which complete data are available at of the actual filers and applied the relevant factors to the projected number employment-based health care benefits. this time. In the Department’s view, When the Department developed its of filers. In its original estimates, the initial estimates of the number of filers 5 ‘‘EMPLOYEE BENEFITS—States Need Labor’s Department differentiated filing and the costs potentially associated with Help Regulating Multiple Employer Welfare preparation time by whether a filer did these filings, it acknowledged a Arrangements,’’ GAO/HRD–92–40. business in more than one state, and significant degree of uncertainty with 6 ‘‘Survey of Association Member Health Plans,’’ whether or not the filer was fully respect to the number of entities that W.G. Morneau & Associates/American Society of insured. The existing filer data offers Association Executives, 1993 and 1997. would be required to file. Although 7 ‘‘Pooled Purchasing: Who Are the Players?’’ more information about the actual reasonable estimates were available Stephen H. Long and M. Susan Marquis, ‘‘Health characteristics of filers. For purposes of from the Form 5500 Annual Return/ Affairs,’’ July–August 1999. these estimates, it is assumed that

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available data is representative of all with an action taken or planned by Estimated Burden Hours: 1. filers. another agency; (3) materially altering Estimated Annual Cost (Operating Original estimates, as well as those the budgetary impacts of entitlement and Maintenance): $403,000. shown here, were based on the grants, user fees, or loan programs or the Regulatory Flexibility Act assumption that 2 hours of start-up time rights and obligations of recipients for learning the law and becoming thereof; or (4) raising novel legal or The Regulatory Flexibility Act (5 familiar with the form and instructions policy issues arising out of legal U.S.C. 601 et seq.) (RFA) imposes would be required for all filers, and that mandates, the President’s priorities, or certain requirements with respect to a range of 50 minutes for single state the principles set forth in the Executive Federal rules that are subject to the filers to 1 hour and 35 minutes for Order. This action is significant under notice and comment requirements of multiple state filers would be required section 3(f)(4) because it raises novel section 553(b) of the Administrative for Part III of the form. Part IV was legal or policy issues arising from the Procedure Act (5. U.S.C. 551 et seq.) and estimated to require 15 minutes for fully President’s priorities. Accordingly, likely to have a significant economic insured filers, and 30 minutes for non- OMB has reviewed this regulatory impact on a substantial number of small fully insured filers. It was also assumed action. entities. Unless the agency certifies that that 100% of filings would be made by a rulemaking action subject to section providers of service to the MEWA Paperwork Reduction Act 553(b) is not likely to have a significant administrators, and thus result in the The Department of Labor submitted economic impact on a substantial payment of fees rather than in the the Form M–1 and instructions to OMB number of small entities, section 604 of expenditure of time. for emergency review and approval at the RFA requires the agency to present Approximately 50% of actual filers the time of publication of the interim a final regulatory flexibility analysis at report doing business in multiple states, final rule on February 11, 2000. OMB the time of publication of the notice of and 50% in single states. Also, about subsequently approved the ICR on final rulemaking describing the impact 50% of all filers, without regard to the March 2, 2000 under control number of the rule on small entities and seeking number doing business in single or 1210–0116. On November 22, 2000, public comment on such impact. Small multiple states, report being fully OMB approved the Department’s entities include small businesses, insured in most or all of the states in request for extension of the emergency organizations, and governmental which they do business. Applying these approval for a three-year period ending jurisdictions. ratios to the estimate of 2,000 filers November 30, 2003. This final rule does Because these rules were issued as results in estimates of 1,000 MEWAs not implement any substantive or interim final rules and not as a notice doing business in multiple states, 1,000 material change to the information of proposed rulemaking, the RFA does not apply and the Department is not in single states, 1,000 fully insured collection, and as such, no change is required to either certify that the rule MEWAs, and 1,000 not-fully insured. made to the ICR, and no further review will not have a significant economic The resulting cost estimate is about is requested of OMB at this time. The impact on a substantial number of small $403,000, or $200 per filer on average. estimated burden hours and costs entities, or conduct a regulatory This estimate incorporates updated associated with the information flexibility analysis. The Department did, assumptions for wage rates and collection have been adjusted to reflect however, take the potential impact on increased postage rates. Of the projected an updated estimate of the likely small entities into account in filers, about 15%, or about 300 filers are number of respondents as well as developing the interim final and final expected to have fewer than 100 updated wage and postal rates. participants, based upon the number of rules. The Department defines a small Estimates of the number of filers and entity for purposes of its RFA analyses actual filers with fewer than 100 burden hours and costs are shown participants. As noted earlier, this is the as an employee benefit plan with fewer below. than 100 participants. This definition is total estimated cost of the filing You may address requests for copies grounded in section 104(a)(2) of ERISA, requirement; no incremental cost is of the ICR to Joseph S. Piacentini, Office which permits the Secretary of Labor to considered to be associated with this of Policy and Research, U.S. Department prescribe simplified annual reports for final rule. of Labor, Employee Benefits Security certain employee benefit plans which Executive Order 12866 Statement Administration, 200 Constitution cover fewer than 100 participants. Based Under Executive Order 12866, the Avenue, NW., Room N–5718, on actual filer data, about 15% of filers Department must determine whether a Washington, DC 20210. Telephone: are expected to be small. This results in regulatory action is ‘‘significant’’ and (202) 693–8410; Fax: (202) 219–5333. an estimate of 300 small MEWAs being therefore subject to the requirements of These are not toll-free numbers required to file Form M–1. The average Agency: U.S. Department of Labor, the Executive Order and subject to cost to all filers, including the highest Employee Benefits Security review by the Office of Management and average cost filers—those not-fully Administration. Budget (OMB). Under section 3(f) of the Title: Annual Report for Multiple insured and those doing business in Executive Order, a ‘‘significant Employer Welfare Arrangements and multiple states—is about $200 per year. regulatory action’’ is an action that is Certain Entities Claiming Exception. The cost to small MEWA filers is likely to result in a rule (1) having an Form: M–1. expected to be lower than average due annual effect of the economy of $100 Affected Public: Business or other for- to the lower likelihood that they are not million or more, or adversely and profit; Individuals or households, Not- fully insured, and that they do business materially affecting a sector of the for-profit institutions. in many states. This cost is not expected economy, productivity, competition, OMB Control Number: 1210–0116. to be considered substantial for any jobs, the environment, public health or Frequency of Response: Annually. entity. The Department has developed a safety, or State, local or tribal Respondents: 2,000. form for the collection of data, and has governments or communities (also Response time: Ranges from 2 hours included voluntary worksheets with the referred to as ‘‘economically to 3 hours and 50 minutes based on form that are designed to assist with significant’’); (2) creating serious characteristics of filer. compliance and ease compliance inconsistency or otherwise interfering Responses: 2,000. burdens for all filers.

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Small Business Regulatory Enforcement responsibilities among various levels of facilitating coordination between the Fairness Act government. Not only do these state and federal regulators and the The final rule being issued here is regulations not reduce state discretion, regulated community. subject to the provisions of the Small the reports they require will facilitate The Department also coordinates with Business Regulatory Enforcement state enforcement of their own laws as state insurance departments to freeze they apply to MEWAs since the reports Fairness Act of 1996 (5 U.S.C. 801 et assets when a MEWA operator is will be available to the states and will seq.) and has been transmitted to committing fraud or operating in a identify MEWAs operating in each state. Congress and the Comptroller General financially unsound manner. In these Although the Department concludes situations, typically, a state will obtain for review. The rule is not a ‘‘major that these final regulations do not have rule’’ as that term is defined in 5 U.S.C. a cease and desist order to stave off federalism implications, in keeping with further action by the MEWA in that 804, because it is not likely to result in the spirit of the Executive Order that (1) an annual effect on the economy of state. In certain situations, the agencies shall closely examine any Department will then obtain a $100 million or more; (2) a major policies that may have federalism increase in costs or prices for temporary restraining order (TRO) to implications or limit the policy making freeze assets of the MEWA nationwide. consumers, individual industries, or discretion of the states, the Department federal, State, or local government In one case this year, the Department of Labor engages in extensive efforts to obtained a TRO to freeze assets of a agencies, or geographic regions; or (3) consult with and work cooperatively significant adverse effects on MEWA whose operators were with affected state and local officials. committing fraud and not paying competition, employment, investment, For example, the Department attends productivity, innovation, or on the benefits. This case affects more than quarterly meetings of the National 23,000 participants and beneficiaries in ability of United States-based Association of Insurance Commissioners enterprises to compete with foreign- 50 states and the amount of unpaid (NAIC) to listen to the concerns of state claims could exceed $6 million. In a based enterprises in domestic or export insurance departments. The NAIC is a markets. similar case last year, the Department non-profit corporation established by obtained a TRO to freeze assets of a Unfunded Mandates Reform Act the insurance commissioners in the 50 MEWA that was diverting plan assets states, the District of Columbia, and the Pursuant to provisions of the for personal use of the MEWA’s four U.S. territories that, among other operators. That case affected at least Unfunded Mandates Reform Act of 1995 things, provides a forum for the (Pub. L. 104–4), this rule does not 1,500 participants and $2.8 million in development of uniform policy when unpaid claims. A court order was also include any Federal mandate that may uniformity is appropriate. Its members result in expenditures by State, local, or issued in that case appointing an meet, discuss, and offer solutions to independent fiduciary to manage the tribal governments, or the private sector, mutual problems. The NAIC sponsors MEWA. which may impose an annual burden of quarterly meetings to provide a forum In conclusion, the Department has $100 million or more. for the exchange of ideas, and in-depth stayed in contact with state regulators consideration of insurance issues by Federalism Statement Under Executive and considered their concerns in regulators, industry representatives, and Order 13132 developing these regulations. These consumers. In addition to the general regulations should help the states Executive Order 13132 outlines discussions, committee meetings, and enforce their own laws as they apply to fundamental principles of federalism, task force meetings, the NAIC sponsors MEWAs since the reports they require and requires the adherence to specific standing HIPAA meetings for members will be available to them and will criteria by Federal agencies in the during the quarterly conferences, process of their formulation and including a Centers for Medicare and identify MEWAs operating in each state. implementation of policies that have Medicaid Services (CMS)/Department of Statutory Authority substantial direct effects on the states, Labor (DOL) meeting on HIPAA issues. 29 U.S.C. 1021, 1027, 1059, 1132, the relationship between the national (This meeting provides CMS and DOL 1135, 1181–1183, 1181 note, 1185, government and the states, or on the the opportunity to provide updates on 1185a–b, 1191, 1191a–c; Secretary of distribution of power and regulations, bulletins, enforcement Labor’s Order 1–2003, 68 FR 5374 (Feb. responsibilities among the various actions, and outreach efforts regarding 3, 2003). levels of government. Agencies HIPAA.) In these quarterly meetings, promulgating regulations that have issues relating to MEWAs and the List of Subjects in 29 CFR Part 2520 these federalism implications must implementation of the Form M–1 filing Accounting, Employee benefit plans, consult with state and local officials, requirement are frequently discussed Pensions, Reporting and recordkeeping and describe in the preamble to the and, periodically, entire sessions are requirements. regulation the extent of their scheduled that are dedicated consultation and the nature of the exclusively to MEWA/Form M–1 issues. ■ For the reasons set out in the preamble, concerns of state and local officials, as The Department also cooperates with part 2520 of Chapter XXV of Title 29 of well as the agency’s position supporting the states in several ongoing outreach the Code of Federal Regulations is the need to issue the regulation, and a initiatives, through which information amended as follows: statement of the extent to which the is shared among federal regulators, state concerns of state and local officials have regulators, and the regulated PART 2520—[AMENDED] been met. community. For example, the ■ 1. The authority for part 2520 con- In the Department’s view, these final Department has established a Health tinues to read: regulations do not have federalism Benefits Education Campaign with more Authority: 29 U.S.C. 1021–1025, 1027, implications because they do not have than 70 partners, including CMS, the 1029–31, 1059, 1134 and 1135; Secretary of substantial direct effects on the states, NAIC, and many business and consumer Labor’s Order 1–2003, 68 FR 5374 (Feb. 3, the relationship between the national groups. In addition, the Department 2003). Sec. 2520.101–2 also issued under 29 government and the states, or on the website offers links to important state U.S.C. 1132, 1181–1183, 1181 note, 1185, distribution of power and websites and other resources, 1185a–b, 1191, and 1191a–c. Secs. 2520.102–

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3, 2520.104b–1 and 2520.104b–3 also issued directly by such person or persons or (i) The administrator of a MEWA that under 29 U.S.C. 1003,1181–1183, 1181 note, indirectly through an agent, custodian, offers or provides benefits consisting of 1185, 1185a–b, 1191, and 1191a–c. Secs. or trustee designated by such person or medical care, regardless of whether the 2520.104b–1 and 2520.107 also issued under entity is a group health plan; and 26 U.S.C. 401 note, 111 Stat. 788. Sec. persons. 2520.101–3 is also issued under 29 U.S.C. Entity Claiming Exception (ECE) (ii) The administrator of an ECE that 1021(i). means an entity that claims it is not a offers or provides benefits consisting of ■ 2. Section 2520.101–2 is revised to MEWA on the basis that the entity is medical care during the first three years read: established or maintained pursuant to after the ECE is originated. one or more agreements that the (2) Exceptions—(i) Nothing in this § 2520.101–2 Annual Reporting by Multiple Secretary finds to be collective paragraph (c) shall be construed to Employer Welfare Arrangements and bargaining agreements within the require reporting under this section by Certain Other Entities Offering or Providing meaning of section 3(40)(A)(i) of ERISA the administrator of a MEWA or ECE if Coverage for Medical Care to the and 29 CFR 2510.3–40. the MEWA or ECE— Employees of Two or More Employers. Excepted benefits means excepted (A) Is licensed or authorized to (a) Basis and scope. Section 101(g) of benefits within the meaning of section operate as a health insurance issuer in the Employee Retirement Income 733(c) of ERISA and 29 CFR every state in which it offers or provides Security Act (ERISA) permits the 2590.732(b). coverage for medical care to employees; Secretary of Labor to require, by Group health plan means a group (B) Provides coverage that consists regulation, multiple employer welfare health plan within the meaning of solely of excepted benefits, which are arrangements (MEWAs) providing section 733(a) of ERISA and 29 CFR not subject to Part 7. If the MEWA or benefits that consist of medical care 2590.701–2. ECE provides coverage that consists of (within the meaning of section 733(a)(2) Health insurance issuer means a both excepted benefits and other of ERISA), and that are not group health health insurance issuer within the benefits for medical care that are not plans, to report, not more frequently meaning of section 733(b)(2) of ERISA excepted benefits, the administrator of than annually, in such form and manner and 29 CFR 2590.701–2. the MEWA or ECE is required to report as the Secretary may require, for the Medical care means medical care under this section; purpose of determining the extent to within the meaning of section 733(a)(2) (C) Is a group health plan that is not which the requirements of part 7 of of ERISA and 29 CFR 2590.701–2. subject to ERISA, including a subtitle B of title I of ERISA (part 7) are Multiple employer welfare governmental plan, church plan, or a being carried out in connection with arrangement (MEWA) means a multiple plan maintained solely for the purpose such benefits. Section 734 of ERISA employer welfare arrangement within of complying with workmen’s provides that the Secretary may the meaning of section 3(40) of ERISA compensation laws, within the meaning promulgate such regulations as may be and 29 CFR 2510.3–40. of sections (4)(b)(1), 4(b)(2), or 4(b)(3) of necessary or appropriate to carry out the Origination means the occurrence of ERISA, respectively; or provisions of part 7. This section sets any of the following three events (and (D) Provides coverage only through out requirements for annual reporting a MEWA or ECE is considered to have group health plans that are not covered by MEWAs that provide benefits that been originated when any of the by ERISA, including governmental consist of medical care and by certain following three events occurs)— plans, church plans, or plans entities that claim not to be a MEWA (1) The MEWA or ECE first begins maintained solely for the purpose of solely due to the exception in section offering or providing coverage for complying with workmen’s 3(40)(A)(i) of ERISA (referred to in this medical care to the employees of two or compensation laws within the meaning section as Entities Claiming Exception more employers (including one or more of sections 4(b)(1), 4(b)(2), or 4(b)(3) of or ECEs). These requirements apply self-employed individuals); ERISA, respectively (or other regardless of whether the MEWA or ECE (2) The MEWA or ECE begins offering arrangements not covered by ERISA, is a group health plan. or providing coverage for medical care such as health insurance coverage (b) Definitions. As used in this to the employees of two or more offered to individuals other than in section, the following definitions apply: employers (including one or more self- connection with a group health plan, Administrator means— employed individuals) after a merger known as individual market coverage); (1) The person specifically so with another MEWA or ECE (unless all (ii) Nothing in this paragraph (c) shall designated by the terms of the of the MEWAs or ECEs that participate be construed to require reporting under instrument under which the MEWA or in the merger previously were last this section by the administrator of an ECE is operated; originated at least three years prior to entity that would not constitute a (2) If the MEWA or ECE is a group the merger); or MEWA or ECE but for the following health plan and the administrator is not (3) The number of employees circumstances: so designated, the plan sponsor (as receiving coverage for medical care (A) The entity provides coverage to defined in section 3(16)(B) of ERISA); or under the MEWA or ECE is at least 50 the employees of two or more trades or (3) In the case of a MEWA or ECE for percent greater than the number of such businesses that share a common control which an administrator is not employees on the last day of the interest of at least 25 percent at any time designated and a plan sponsor cannot be previous calendar year (unless the during the plan year, applying the identified, jointly and severally the increase is due to a merger with another principles of section 414(b) or (c) of the person or persons actually responsible MEWA or ECE under which all MEWAs Internal Revenue Code (26 U.S.C.); (whether or not so designated under the and ECEs that participate in the merger (B) The entity provides coverage to terms of the instrument under which the were last originated at least three years the employees of two or more employers MEWA or ECE is operated) for the prior to the merger). due to a change in control of businesses control, disposition, or management of (c) Persons required to report—(1) (such as a merger or acquisition) that the cash or property received by or General rule. Except as provided in occurs for a purpose other than avoiding contributed to the MEWA or ECE, paragraph (c)(2) of this section, the Form M–1 filing and is temporary in irrespective of whether such control, following persons are required to report nature. For purposes of this paragraph, disposition, or management is exercised under this section— ‘‘temporary’’ means the MEWA or ECE

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does not extend beyond the end of the MEWA or ECE is also required to file a copy of the 2004 Form M–1 on or before plan year following the plan year in completed copy of the Form M–1 within September 29, 2004 (which is 90 days after which the change in control occurs; or 90 days of the origination date (unless the origination date). In addition, the (C) The entity provides coverage to 90 days after the origination date is a administrator of ECE C must file an updated persons (excluding spouses and copy of the 2004 Form M–1 by March 1, 2005 Saturday, Sunday, or federal holiday, in because the last date C was originated was dependents) who are not employees or which case the form must be filed no July 1, 2004, which is less than 3 years prior former employees of the plan sponsor, later than the next business day). to the March 1, 2005 due date. Furthermore, such as non-employee members of the (B) Exception. Paragraph (e)(2)(ii)(A) the administrator of ECE C must file a 2005 board of directors or independent of this section does not apply if the Form M–1 by March 1, 2006 and a 2006 Form contractors, and the number of such origination occurred between October 1 M–1 by March 1, 2007 (because July 1, 2004 persons who are not employees or and December 31. (Thus, no 90-day is less than three years prior to March 1, 2006 former employees does not exceed one origination report is due when an entity and March 1, 2007, respectively). However, if ECE C is not involved in any mergers that percent of the total number of is originated between October 1 and employees or former employees covered would result in a new origination date and December 31. However, the March 1 if ECE C does not experience a growth of 50 under the arrangement, determined as of filing deadline of paragraph (e)(2)(i) of percent or more in the number of employees the last day of the year to be reported this section continues to apply.) to which ECE C provides coverage from the or, in the case of a 90-day origination (iii) Extensions. An extension may be last day of the previous calendar year to any report, determined as of the 60th day granted for filing a report if the day in the current calendar year, then no following the origination date. administrator complies with the Form M–1 report is required to be filed after (d) Information to be reported— (1) extension procedure prescribed in the March 1, 2007. The annual report required by this Instructions to the Form M–1. Example 4. (i) Facts. MEWA D begins section shall consist of a completed offering coverage to the employees of two or (f) Filing address. A completed copy more employers on January 1, 2000. MEWA copy of the Form M–1 Annual Report of the Form M–1 is filed with the for Multiple Employer Welfare D is licensed or authorized to operate as a Secretary by sending it to the address health insurance issuer in every state in Arrangements (MEWAs) and Certain prescribed in the Instructions to the which it offers coverage for medical care to Entities Claiming Exception (ECEs) and Form M–1. employees. any additional statements required in (g) Civil penalties and procedures. For (ii) Conclusion. In this Example 4, the the Instructions to the Form M–1. information on civil penalties under administrator of MEWA D is not required to (2) The Secretary may reject any filing section 502(c)(5) of ERISA for persons file Form M–1 because it is licensed or under this section if the Secretary who fail to file the information required authorized to operate as a health insurance issuer in every state in which it offers determines that the filing is incomplete, under this section, see 29 CFR in accordance with 29 CFR 2560.502c– coverage for medical care to employees. 2560.502c-5. For information relating to Example 5. (i) Facts. MEWA E is originated 5. administrative hearings and appeals in (3) If the Secretary rejects a filing on September 1, 2004. connection with the assessment of civil under paragraph (d)(2) of this section, (ii) Conclusion. In this Example 5, because penalties under section 502(c)(5) of MEWA E was originated on September 1, and if a revised filing satisfactory to the ERISA, see 29 CFR 2570.90 through 2004, the administrator of MEWA E must file Secretary is not submitted within 45 2570.101. a completed copy of the Form M–1 on or days after the notice of rejection, the (h) Examples. The rules of this section before November 30, 2004 (which is 90 days Secretary may bring a civil action for are illustrated by the following after the origination date). In addition, the such relief as may be appropriate administrator of MEWA E must file a examples: (including penalties under section completed copy of the Form M–1 annually by 502(c)(5) of ERISA and 29 CFR Example 1. (i) Facts. MEWA A began every March 1 thereafter. 2560.502c-5). offering coverage for medical care to the Example 6. (i) Facts. Company F maintains (e) Reporting requirement and employees of two or more employers July 1, a group health plan that provides benefits for timing—(1) Period for which report is 1989 (and continues to offer such coverage). medical care for its employees (and their MEWA A does not claim the exception under dependents). Company F establishes a joint required. A completed copy of the Form section 3(40)(A)(i) of ERISA. venture in which it has a 25 percent stock M–1 is required to be filed for each (ii) Conclusion. In this Example 1, the ownership interest, determined by applying calendar year during all or part of which administrator of MEWA A must file a the principles under section 414(b) of the the MEWA or ECE offers or provides completed copy of the Form M–1 each year Internal Revenue Code, and transfers some of coverage for medical care to the by March 1. its employees to the joint venture. Company employees of two or more employers Example 2. (i) Facts. ECE B began offering F continues to cover these transferred (including one or more self-employed coverage for medical care to the employees employees under its group health plan. individuals). of two or more employers on January 1, 1992. (ii) Conclusion. In this Example 6, the (2) Filing deadline—(i) General March ECE B has not been involved in any mergers administrator is not required to file the Form and the number of employees to which ECE M–1 because Company F’s group health plan 1 filing due date for annual filings. A B provides coverage for medical care has not meets the exception to the filing requirement completed copy of the Form M–1 is grown by more than 50 percent in any given in paragraph (c)(2)(ii)(A) of this section. This required to be filed on or before each year. is because Company F’s group health plan March 1 that follows a period to be (ii) Conclusion. In this Example 2, ECE B would not constitute a MEWA but for the fact reported (as described in paragraph was originated on January 1, 1992 and has that it provides coverage to two or more (e)(1) of this section). However, if March not been originated since then. Therefore, the trades or businesses that share a common 1 is a Saturday, Sunday, or federal administrator of ECE B is not required to file control interest of at least 25 percent. holiday, the form must be filed no later a 2003 Form M–1 on March 1, 2004 because Example 7. (i) Facts. Company G maintains than the next business day. the last time the ECE B was originated was a group health plan that provides benefits for (ii) Special rule requiring a 90–Day January 1, 1992 which is more than 3 years medical care for its employees. The plan year prior to March 1, 2004. of Company G’s group health plan is the Origination Report when a MEWA or Example 3. (i) Facts. ECE C began offering fiscal year for Company G, which is October ECE is originated—(A) In general. coverage for medical care to the employees 1st—September 30th. Therefore, October 1, Subject to paragraph (e)(2)(ii)(B) of this of two or more employers on July 1, 2004. 2004—September 30, 2005 is the 2005 plan section, when a MEWA or ECE is (ii) Conclusion. In this Example 3, the year. Company G decides to sell a portion of originated, the administrator of the administrator of ECE C must file a completed its business, Division X, to Company H.

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Company G signs an agreement with DEPARTMENT OF LABOR February 11, 2000 at 65 FR 7181. In the Company H under which Division X will be February 11, 2000 interim rule, the transferred to Company H, effective Employee Benefits Security Department sought comments from September 30, 2005. The change in control of Administration Division X therefore occurs on September 30, affected parties. No comments were 2005. Under the terms of the agreement, received. 29 CFR Part 2560 Company G agrees to continue covering all of On October 21, 2002, the Department the employees that formerly worked for RIN 1210–AA64 published interim final rules relating to Division X under its group health plan until Company H has established a new group notice of blackout periods to Assessment of Civil Penalties Under participants and beneficiaries (during health plan to cover these employees. Under Section 502(c)(5) of ERISA the terms of the agreement, it is anticipated which their right to direct or diversify that Company G will not be required to cover AGENCY: Employee Benefits Security investments, obtain a loan, or obtain a the employees of Division X under its group Administration, Department of Labor. distribution under a pension plan may health plan beyond the end of the 2006 plan be suspended) and related civil year, which is the plan year following the ACTION: Final rule. plan year in which the change in control of penalties under ERISA section 502(c)(7). Division X occurs. SUMMARY: This document contains a Those rules also made conforming (ii) Conclusion. In this Example 7, the final rule that describes procedures changes to the penalty assessment administrator of Company G’s group health relating to the assessment of civil regulations under this section. plan is not required to file the Form M–1 on penalties under section 502(c)(5) of the Specifically, this section was amended March 1, 2006 for fiscal year 2005 because it Employee Retirement Income Security to provide an additional five days in is subject to the exception to the filing Act of 1974, (ERISA) as amended by the which to file a statement of reasonable requirement in paragraph (c)(2)(ii)(B) of this section for an entity that would not Health Insurance Portability and cause or a request for hearing and constitute a MEWA but for the fact that it is Accountability Act of 1996 (HIPAA). answer, as applicable, when the created by a change in control of businesses Section 502(c)(5) authorizes the Department serves a notice of intent to that occurs for a purpose other than to avoid Secretary of Labor (the Secretary) to assess a penalty or a notice of penalty filing the Form M–1 and is temporary in assess a civil monetary penalty against determination by certified mail, and to nature. Under the exception, ‘‘temporary’’ any person from the date of the person’s provide that service of a notice by the means the MEWA does not extend beyond failure or refusal to file the information the end of the plan year following the plan Department by regular mail is complete year in which the change in control occurs. required to be filed under section 101(g) upon receipt. In addition, conforming The administrator is not required to file the of ERISA. The final rule clarifies the amendments were made to provide that 2005 Form M–1 because it is anticipated that manner in which the Secretary will statements of reasonable cause are Company G will not be required to cover the assess penalties under ERISA section treated as filed on mailing or on employees of Division X under its group 502(c)(5) and the procedures for agency transmittal under certain circumstances. health plan beyond the end of the 2006 plan review. Separate documents containing Finally, amendments were made to year, which is the plan year following the a final rule on the reporting requirement plan year in which the change in control of accommodate those changes in the filing businesses occurred. under section 101(g) of ERISA and a and service rules. No comments were Example 8. (i) Facts. Company I maintains final rule relating to procedures for received with respect to these a group health plan that provides benefits for administrative hearings and appeals on conforming amendments. medical care for its employees (and their assessments of penalties under ERISA dependents) as well as certain independent section 502(c)(5) appear separately in This regulation finalizes the interim contractors who are self-employed this issue of the Federal Register. final regulations published February 20, individuals. The plan is therefore a MEWA. 2000, as amended by the interim final EFFECTIVE DATE: This final rule is The administrator of Company I’s group amendments published October 21, effective January 1, 2004. health plan uses calendar year data to report 2002. Only one modification was made, for purposes of the Form M–1. The FOR FURTHER INFORMATION CONTACT: involving applicability dates. administrator of Company I’s group health Amy J. Turner or Deborah S. Hobbs, plan determines that the number of Specifically, the interim final rule Employee Benefits Security contained a transition safe harbor period independent contractors covered under the Administration, U.S. Department of group health plan as of the last day of under which no civil penalty was calendar year 2004 is less than one percent Labor, Room C–5331, 200 Constitution assessed against an administrator that of the total number of employees and former Avenue, NW., Washington, DC 20210 had made a good faith effort to comply (telephone (202) 693–8335). employees covered under the plan with a § 2520.101–2 filing that was due determined as of the last day of calendar year SUPPLEMENTARY INFORMATION: 2004. in the Year 2000. This transition rule (ii) Conclusion. In this Example 8, the A. Background and Overview of was created because, during the first administrator of Company I’s group health Changes in the Final Rule year in which a report was required to plan is not required to file a Form M–1 for be filed under section 101(g) in This document contains a final rule calendar year 2004 (which is otherwise due particular, the Department was focused that provides guidance relating to the by March 1, 2005) because it is subject to the on educating administrators about this exception to the filing requirement provided assessment of civil penalties under filing requirement. Because the dates in paragraph (c)(2)(ii)(C) of this section for section 502(c)(5) of ERISA for the failure during which the transition rule was entities that cover a very small number of or refusal to file a report pursuant to applicable have passed, this rule has persons who are not employees or former section 101(g) of ERISA. This regulation employees of the plan sponsor. is designed to parallel the procedures been deleted from the final rule. Signed at Washington, DC, this 31st day of set forth in § 2560.502c—2 regarding The Department remains committed March 2003. civil penalties under section 502(c)(2) of to working with administrators to help Ann L. Combs, ERISA. them comply with the Form M–1 filing Assistant Secretary, Employee Benefits An interim final rule relating to the requirement. Filers who have questions Security Administration. assessment of civil penalties under or who need assistance in completing a [FR Doc. 03–8115 Filed 4–7–03; 8:45 am] section 502(c)(5) of ERISA was filing may call the EBSA Help Desk, at BILLING CODE 4510–29–P published in the Federal Register on 202–693–8360.

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B. Regulatory Impact Analysis flexibility analysis. The Department concerns of state and local officials, as does not anticipate that this final rule well as the agency’s position supporting Executive Order 12866 Statement will impose a significant impact on a the need to issue the regulation, and a Under Executive Order 12866, the substantial number of small entities, statement of the extent to which the Department must determine whether a however, regardless of whether one uses concerns of state and local officials have regulatory action is ‘‘significant’’ and the definition of small entity found in been met. therefore subject to the requirements of regulations issued by the Small In the Department’s view, these final the Executive Order and subject to Business Administration (13 CFR regulations do not have federalism review by the Office of Management and § 121.201) or one defines small entity, implications because they do not have Budget (OMB). Under section 3(f) of the on the basis of section 104(a)(2) of substantial direct effects on the states, Executive Order, a ‘‘significant ERISA, as an employee benefit plan the relationship between the national regulatory action’’ is an action that is with fewer than 100 participants. government and the states, or on the likely to result in a rule (1) having an distribution of power and annual effect on the economy of $100 Small Business Regulatory Enforcement responsibilities among various levels of million or more, or adversely and Fairness Act government. Not only do these materially affecting a sector of the The final rule being issued here is regulations not reduce state discretion, economy, productivity, competition, subject to the provisions of the Small the reports they require will facilitate jobs, the environment, public health or Business Regulatory Enforcement state enforcement of their own laws as safety, or State, local or tribal Fairness Act of 1996 (5 U.S.C. 801 et they apply to MEWAs since the reports governments or communities (also seq.) and has been transmitted to will be available to the states and will referred to as ‘‘economically Congress and the Comptroller General identify MEWAs operating in each state. significant’’); (2) creating serious for review. The rule is not a ‘‘major Although the Department concludes inconsistency or otherwise interfering rule’’ as that term is defined in 5 U.S.C. that these final regulations do not have with an action taken or planned by 804, because it is not likely to result in federalism implications, in keeping with another agency; (3) materially altering (1) an annual effect on the economy of the spirit of the Executive Order that the budgetary impacts of entitlement $100 million or more; (2) a major agencies shall closely examine any grants, user fees, or loan programs or the increase in costs or prices for policies that may have federalism rights and obligations of recipients consumers, individual industries, or implications or limit the policy making thereof; or (4) raising novel legal or federal, State, or local government discretion of the states, the Department policy issues arising out of legal agencies, or geographic regions; or (3) of Labor engages in extensive efforts to mandates, the President’s priorities, or significant adverse effects on consult with and work cooperatively the principles set forth in the Executive competition, employment, investment, with affected state and local officials. Order. On the basis of these criteria, it productivity, innovation, or on the For example, the Department attends has been determined that this regulatory ability of United States-based quarterly meetings of the National action is significant under section 3(f)(4) enterprises to compete with foreign- Association of Insurance Commissioners of the Executive Order. Accordingly, based enterprises in domestic or export (NAIC) to listen to the concerns of state OMB has reviewed this regulation. markets. insurance departments. The NAIC is a non-profit corporation established by Paperwork Reduction Act Unfunded Mandates Reform Act the insurance commissioners in the 50 The rule being issued here is not For purposes of the Unfunded states, the District of Columbia, and the subject to the requirements of the Mandates Reform Act of 1995 (Pub. L. four U.S. territories that, among other Paperwork Reduction Act of 1995 (44 104–4), as well as Executive Order things, provides a forum for the U.S.C. 3501 et seq.) because it does not 12875, this final rule does not include development of uniform policy when contain a ‘‘collection of information’’ as any Federal mandate that may result in uniformity is appropriate. Its members defined in 44 U.S.C. 3502(3). expenditures by State, local, or tribal meet, discuss, and offer solutions to governments, and will not impose an mutual problems. The NAIC sponsors Regulatory Flexibility Act annual burden of $100 million or more quarterly meetings to provide a forum The Regulatory Flexibility Act (5 on the private sector. for the exchange of ideas, and in-depth U.S.C. 601 et seq.) (RFA) requires each consideration of insurance issues by Federal agency to perform a regulatory Federalism Statement Under Executive regulators, industry representatives, and flexibility analysis for all rules subject Order 13132 consumers. In addition to the general to the notice and comment requirements Executive Order 13132 outlines discussions, committee meetings, and of section 553(b) of the Administrative fundamental principles of federalism, task force meetings, the NAIC sponsors Procedure Act (5 U.S.C 551 et seq.) and requires the adherence to specific standing HIPAA meetings for members unless the head of the agency certifies criteria by federal agencies in the during the quarterly conferences, that the rule will not, if promulgated, process of their formulation and including a Centers for Medicare and have a significant economic impact on implementation of policies that have Medicaid Services (CMS)/Department of a substantial number of small entities. substantial direct effects on the states, Labor (DOL) meeting on HIPAA issues. Small entities include small businesses, the relationship between the national (This meeting provides CMS and DOL organizations, and governmental government and the states, or on the the opportunity to provide updates on jurisdictions. distribution of power and regulations, bulletins, enforcement Because these rules were issued as responsibilities among the various actions, and outreach efforts regarding interim final rules and not as a notice levels of government. Agencies HIPAA.) In these quarterly meetings, of proposed rulemaking, the RFA does promulgating regulations that have issues relating to MEWAs and the not apply and the Department is not these federalism implications must implementation of the Form M–1 filing required to either certify that the rule consult with state and local officials, requirement are frequently discussed will not have a significant economic and describe in the preamble to the and, periodically, entire sessions are impact on a substantial number of small regulation the extent of their scheduled that are dedicated entities, or conduct a regulatory consultation and the nature of the exclusively to MEWA/Form M–1 issues.

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The Department also cooperates with the Code of Federal Regulations is for any day from the date the the states in several ongoing outreach amended as follows: Department serves the administrator initiatives, through which information with a copy of such notice until the day is shared among federal regulators, state PART 2560—[AMENDED] after the Department serves notice on regulators, and the regulated ■ 1. The authority for part 2560 con- the administrator of its determination community. For example, the tinues to read: on reasonable cause and its intention to Department has established a Health assess a penalty (as described in Benefits Education Campaign with more Authority: 29 U.S.C. 1132, 1135, and paragraph (g) of this section). than 70 partners, including CMS, the Secretary of Labor’s Order 1–2003, 68 FR (3) For purposes of this paragraph, the 5374 (Feb. 3, 2003). Sec. 2560.503–1 also date on which the administrator failed NAIC, and many business and consumer issued under 29 U.S.C. 1133. groups. In addition, the Department or refused to file the report shall be the Web site offers links to important state ■ 2. Part 2560 is amended by revising date on which the report was due Web sites and other resources, §2560.502c–5 to read: (determined without regard to any facilitating coordination between the extension of time for filing). A report § 2560.502c–5—Civil penalties under which is rejected under 29 CFR state and federal regulators and the section 502(c)(5). regulated community. 2520.101–2 shall be treated as a failure The Department also coordinates with (a) In general—(1) Pursuant to the to file a report when a revised report state insurance departments to freeze authority granted the Secretary under meeting the requirements of this section assets when a MEWA operator is section 502(c)(5) of the Employee is not filed within 45 days of the date committing fraud or operating in a Retirement Income Security Act of 1974, of the Department’s notice of rejection. financially unsound manner. In these as amended (the Act), the administrator If a revised report meeting the situations, typically, a state will obtain of a multiple employer welfare requirements of this section, as a cease and desist order to stave off arrangement (MEWA) (within the determined by the Secretary, is not further action by the MEWA in that meaning of section 3(40)(A) of the Act) submitted within 45 days of the date of state. In certain situations, the that is not a group health plan, and that the notice of rejection by the Department will then obtain a provides benefits consisting of medical Department, a penalty shall be assessed temporary restraining order (TRO) to care (within the meaning of section under section 502(c)(5) beginning on the freeze assets of the MEWA nationwide. 733(a)(2)), for which a report is required day after the date of the administrator’s In one case this year, the Department to be filed under section 101(g) of the failure or refusal to file the report. obtained a TRO to freeze assets of a Act and 29 CFR 2520.101–2, shall be (c) Notice of intent to assess a penalty. MEWA whose operators were liable for civil penalties assessed by the Prior to the assessment of any penalty committing fraud and not paying Secretary under section 502(c)(5) of the under section 502(c)(5), the Department benefits. This case affects more than Act for each failure or refusal to file a shall provide to the administrator of the 23,000 participants and beneficiaries in completed report required to be filed MEWA a written notice indicating the 50 states and the amount of unpaid under section 101(g) and 29 CFR Department’s intent to assess a penalty claims could exceed $6 million. In a 2520.101–2. The term ‘‘administrator’’ is under section 502(c)(5), the amount of similar case last year, the Department defined in 29 CFR 2520.101–2(b). such penalty, the period to which the obtained a TRO to freeze assets of a (2) For purposes of this section, a penalty applies, and a statement of the MEWA that was diverting plan assets failure or refusal to file the report facts and the reason(s) for the penalty. for personal use of the MEWA’s required to be filed under section 101(g) (d) Reconsideration or waiver of operators. That case affected at least shall mean a failure or refusal to file, in penalty to be assessed. The Department 1,500 participants and $2.8 million in whole or in part, that information may determine that all or part of the unpaid claims. A court order was also described in section 101(g) and 29 CFR penalty amount in the notice of intent issued in that case appointing an 2520.101–2, on behalf of the MEWA, at to assess a penalty shall not be assessed independent fiduciary to manage the the time and in the manner prescribed on a showing that the administrator MEWA. therefor. complied with the requirements of In conclusion, the Department has (b) Amount assessed—(1) The amount section 101(g) of the Act or on a stayed in contact with state regulators assessed under section 502(c)(5) shall be showing by the administrator of and considered their concerns in determined by the Department of Labor, mitigating circumstances regarding the developing these regulations. These taking into consideration the degree degree or willfulness of the regulations should help the states and/or willfulness of the failure to file noncompliance. enforce their own laws as they apply to the report. However, the amount (e) Showing of reasonable cause. MEWAs since the reports they require assessed under section 502(c)(5) of the Upon issuance by the Department of a will be available to them and will Act shall not exceed $1,000 a day, notice of intent to assess a penalty, the identify MEWAs operating in each state. computed from the date of the administrator shall have thirty (30) days administrator’s failure or refusal to file from the date of service of the notice, as Statutory Authority the report and, except as provided in described in paragraph (i) of this 29 U.S.C. 1132(c)(5) and 1135 and paragraph (b)(2) of this section, section, to file a statement of reasonable Secretary of Labor’s Order 1–2003, 68 continuing up to the date on which a cause explaining why the penalty, as FR 5374 (Feb. 3, 2003). report meeting the requirements of calculated, should be reduced, or not be section 101(g) and 29 CFR 2520.101–2, assessed, for the reasons set forth in List of Subjects in 29 CFR Part 2560 as determined by the Secretary, is filed. paragraph (d) of this section. Such Claims, Employee benefit plans, (2) If, upon receipt of a notice of statement must be made in writing and Employee Retirement Income Security intent to assess a penalty (as described set forth all the facts alleged as Act, Law enforcement, Penalties, in paragraph (c) of this section), the reasonable cause for the reduction or Pensions, Reporting and recordkeeping administrator files a statement of nonassessment of the penalty. The requirements. reasonable cause for the failure to file, statement must contain a declaration by ■ For the reasons set out in the preamble, in accordance with paragraph (e) of this the administrator that the statement is Part 2560 of Chapter XXV of Title 29 of section, a penalty shall not be assessed made under the penalties of perjury.

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(f) Failure to file a statement of (i) By delivering a copy to the DEPARTMENT OF LABOR reasonable cause. Failure of an administrator or representative thereof; Employee Benefits Security administrator to file a statement of (ii) By leaving a copy at the principal Administration reasonable cause within the thirty (30) office, place of business, or residence of day period described in paragraph (e) of the administrator or representative 29 CFR Part 2570 this section shall be deemed to thereof; or constitute a waiver of the right to appear RIN 1210–AA64 and contest the facts alleged in the (iii) By mailing a copy to the last notice of intent, and such failure shall known address of the administrator or Procedures for Administrative be deemed an admission of the facts representative thereof. Hearings Regarding the Assessment of alleged in the notice for purposes of any (2) If service is accomplished by Civil Penalties Under Section 502(c)(5) proceeding involving the assessment of certified mail, service is complete upon of ERISA a civil penalty under section 502(c)(5) of mailing. If service is by regular mail, the Act. Such notice shall then become service is complete upon receipt by the AGENCY: Employee Benefits Security a final order of the Secretary, within the addressee. When service of a notice Administration, Department of Labor. meaning of 29 CFR 2570.91(g), forty-five under paragraph (c) or (g) of this section ACTION: Final rule. (45) days from the date of service of the is by certified mail, five (5) days shall SUMMARY: This document contains a notice. be added to the time allowed by these final rule that describes procedures (g) Notice of the determination on rules for the filing of a statement, or a statement of reasonable cause—(1) The relating to administrative hearings, in request for hearing and answer, as connection with the assessment of civil Department, following a review of all applicable. the facts alleged in support of no penalties under section 502(c)(5) of the (3) For purposes of this section, a assessment or a complete or partial Employee Retirement Income Security waiver of the penalty, shall notify the statement of reasonable cause shall be Act of 1974 (ERISA), as amended by the administrator, in writing, of its considered filed: Health Insurance Portability and determination to waive the penalty, in (i) Upon mailing, if accomplished Accountability Act of 1996 (HIPAA). whole or in part, and/or assess a using United States Postal Service Section 502(c)(5) of ERISA authorizes penalty. If it is the determination of the certified mail or Express Mail; the Secretary of Labor (the Secretary) to Department to assess a penalty, the assess a civil penalty against any person (ii) Upon receipt by the delivery of up to $1,000 a day from the date of notice shall indicate the amount of the service, if accomplished using a penalty, not to exceed the amount the person’s failure or refusal to file the ‘‘designated private delivery service’’ information required to be filed by such described in paragraph (c) of this within the meaning of 26 U.S.C. 7502(f); section, and a brief statement of the person with the Secretary under reasons for assessing the penalty. This (iii) Upon transmittal, if transmitted regulations prescribed pursuant to notice is a ‘‘pleading’’ for purposes of 29 in a manner specified in the notice of section 101(g) of ERISA. Separate CFR 2570.91(m). intent to assess a penalty as a method documents are also being published (2) Except as provided in paragraph of transmittal to be accorded such today in the Federal Register containing (h) of this section, a notice issued special treatment; or final rules implementing the reporting pursuant to paragraph (g)(1) of this (iv) In the case of any other method requirement under section 101(g) of section, indicating the Department’s of filing, upon receipt by the ERISA and final rules describing the intention to assess a penalty, shall Department at the address provided in manner in which the Department will assess civil penalties under ERISA become a final order, within the the notice of intent to assess a penalty. section 502(c)(5). meaning of 29 CFR 2570.91(g), forty-five (j) Liability—(1) If more than one (45) days from the date of service of the EFFECTIVE DATE: This final rule is person is responsible as administrator effective January 1, 2004. notice. for the failure to file the report, all such FOR FURTHER INFORMATION CONTACT: (h) Administrative hearing. A notice persons shall be jointly and severally Amy J. Turner or Deborah S. Hobbs, issued pursuant to paragraph (g) of this liable with respect to such failure. section will not become a final order, Employee Benefits Security within the meaning of 29 CFR (2) Any person against whom a civil Administration, U.S. Department of 2570.91(g), if, within thirty (30) days penalty has been assessed under section Labor, Room C–5331, 200 Constitution from the date of the service of the 502(c)(5) pursuant to a final order, Avenue, NW., Washington, DC 20210 notice, the administrator or a within the meaning of 29 CFR (telephone (202) 693–8335). representative thereof files a request for 2570.91(g), shall be personally liable for SUPPLEMENTARY INFORMATION: a hearing under 29 CFR 2570.90 through the payment of such penalty. A. Background and Overview of 2570.101, and files an answer to the (k) Cross-reference. See 29 CFR Changes in the Final Rule notice. The request for hearing and 2570.90 through 2570.101 for answer must be filed in accordance with procedural rules relating to This document contains a final rule 29 CFR 2570.92 and 18.4. The answer administrative hearings under section that provides guidance relating to the opposing the proposed sanction shall be 502(c)(5) of the Act. procedures for administrative hearings in writing, and supported by reference and appeals regarding the assessment of to specific circumstances or facts Signed at Washington DC, this 31st day of civil penalties under section 502(c)(5) of surrounding the notice of determination March, 2003. ERISA for the failure or refusal to file a issued pursuant to paragraph (g) of this Ann L. Combs, completed report pursuant to section section. Assistant Secretary, Employee Benefits 101(g) of ERISA. This regulation is (i) Service of notices and filing of Security Administration, Department of designed to parallel the procedures set statements—(1) Service of a notice for Labor. forth in § 2570.502c–2 regarding civil purposes of paragraphs (c) and (g) of [FR Doc. 03–8116 Filed 4–7–03; 8:45 am] penalties under section 502(c)(2) of this section shall be made: BILLING CODE 4510–29–P ERISA.

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An interim final rule relating to the has been determined that this regulatory ability of United States-based procedures for administrative hearings action is significant under section 3(f)(4) enterprises to compete with foreign- and appeals relating to the assessment of the Executive Order. Accordingly, based enterprises in domestic or export of civil penalties under section 502(c)(5) OMB has reviewed this regulation. markets. of ERISA was published in the Federal Paperwork Reduction Act Unfunded Mandates Reform Act Register on February 11, 2000, 65 FR 7185. In the February 11, 2000 interim The rule being issued here is not For purposes of the Unfunded rule, the Department sought comments subject to the requirements of the Mandates Reform Act of 1995 (Pub. L. from those affected by this regulation. Paperwork Reduction Act of 1995 (44 104–4), as well as Executive Order No comments were received. U.S.C. 3501 et seq.) because it does not 12875, this final rule does not include On October 21, 2002, the Department contain a ‘‘collection of information’’ as any Federal mandate that may result in published interim final rules relating to defined in 44 U.S.C. 3502(3). expenditures by State, local, or tribal notice of blackout periods to Regulatory Flexibility Act governments, and will not impose an participants and beneficiaries (during annual burden of $100 million or more The Regulatory Flexibility Act (5 which their right to direct or diversify on the private sector. investments, obtain a loan, or obtain a U.S.C. 601 et seq.), (RFA) requires each distribution under a pension plan may Federal agency to perform a regulatory Federalism Statement Under Executive be suspended) and related civil flexibility analysis for all rules subject Order 13132 to the notice and comment requirements penalties under ERISA section 502(c)(7). Executive Order 13132 outlines of section 553(b) of the Administrative Those rules also made conforming fundamental principles of federalism, Procedure Act (5 U.S.C 551 et seq.) changes to the procedural regulations and requires the adherence to specific unless the head of the agency certifies under this section. Specifically, criteria by federal agencies in the that the rule will not, if promulgated, § 2570.94, which describes process of their formulation and have a significant economic impact on ‘‘consequences of default’’ was modified implementation of policies that have a substantial number of small entities. to provide that, if a respondent fails to substantial direct effects on the states, Small entities include small businesses, file an answer to the notice of the relationship between the national organizations, and governmental determination, the notice of government and the states, or on the jurisdictions. determination shall become a final order Because these rules were issued as distribution of power and of the Secretary 45 days from the date interim final rules and not as a notice responsibilities among the various of service of the notice. No comments of proposed rulemaking, the RFA does levels of government. Agencies were received with respect to this not apply and the Department is not promulgating regulations that have conforming amendment. required to either certify that the rule these federalism implications must The interim rule is, therefore, being will not have a significant economic consult with state and local officials, published as a final rule without impact on a substantial number of small and describe in the preamble to the change. entities, or conduct a regulatory regulation the extent of their B. Regulatory Impact Analysis flexibility analysis. The Department consultation and the nature of the does not anticipate that this final rule concerns of state and local officials, as Executive Order 12866 Statement will impose a significant impact on a well as the agency’s position supporting Under Executive Order 12866, the substantial number of small entities, the need to issue the regulation, and a Department must determine whether a however, regardless of whether one uses statement of the extent to which the regulatory action is ‘‘significant’’ and the definition of small entity found in concerns of state and local officials have therefore subject to the requirements of regulations issued by the Small been met. the Executive Order and subject to Business Administration (13 CFR In the Department’s view, these final review by the Office of Management and 121.201) or one defines small entity, on regulations do not have federalism Budget (OMB). Under section 3(f) of the the basis of section 104(a)(2) of ERISA, implications because they do not have Executive Order, a ‘‘significant as an employee benefit plan with fewer substantial direct effects on the states, regulatory action’’ is an action that is than 100 participants. the relationship between the national likely to result in a rule (1) having an government and the states, or on the annual effect on the economy of $100 Small Business Regulatory Enforcement distribution of power and million or more, or adversely and Fairness Act responsibilities among various levels of materially affecting a sector of the The final rule being issued here is government. Not only do these economy, productivity, competition, subject to the provisions of the Small regulations not reduce state discretion, jobs, the environment, public health or Business Regulatory Enforcement the reports they require will facilitate safety, or State, local or tribal Fairness Act of 1996 (5 U.S.C. 801 et state enforcement of their own laws as governments or communities (also seq.) and has been transmitted to they apply to MEWAs since the reports referred to as ‘‘economically Congress and the Comptroller General will be available to the states and will significant’’); (2) creating serious for review. The rule is not a ‘‘major identify MEWAs operating in each state. inconsistency or otherwise interfering rule’’ as that term is defined in 5 U.S.C. Although the Department concludes with an action taken or planned by 804, because it is not likely to result in that these final regulations do not have another agency; (3) materially altering (1) an annual effect on the economy of federalism implications, in keeping with the budgetary impacts of entitlement $100 million or more; (2) a major the spirit of the Executive Order that grants, user fees, or loan programs or the increase in costs or prices for agencies shall closely examine any rights and obligations of recipients consumers, individual industries, or policies that may have federalism thereof; or (4) raising novel legal or federal, State, or local government implications or limit the policy making policy issues arising out of legal agencies, or geographic regions; or (3) discretion of the states, the Department mandates, the President’s priorities, or significant adverse effects on of Labor engages in extensive efforts to the principles set forth in the Executive competition, employment, investment, consult with and work cooperatively Order. On the basis of these criteria, it productivity, innovation, or on the with affected state and local officials.

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For example, the Department attends benefits. This case affects more than for hearing. Each document filed shall quarterly meetings of the National 23,000 participants and beneficiaries in be clear and legible. Association of Insurance Commissioners 50 states and the amount of unpaid * * * * * (NAIC) to listen to the concerns of state claims could exceed $6 million. In a ■ 3. Subpart E of part 2570 is amended insurance departments. The NAIC is a similar case last year, the Department to read as follows: non-profit corporation established by obtained a TRO to freeze assets of a the insurance commissioners in the 50 MEWA that was diverting plan assets Subpart E—Procedures for the states, the District of Columbia, and the for personal use of the MEWA’s Assessment of Civil Penalties Under four U.S. territories that, among other operators. That case affected at least ERISA Section 502(c)(5) things, provides a forum for the 1,500 participants and $2.8 million in development of uniform policy when unpaid claims. A court order was also Sec. uniformity is appropriate. Its members issued in that case appointing an 2570.90 Scope of Rules. meet, discuss, and offer solutions to 2570.91 Definitions. independent fiduciary to manage the 2570.92 Service: Copies of documents and mutual problems. The NAIC sponsors MEWA. pleadings. quarterly meetings to provide a forum In conclusion, the Department has 2570.93 Parties, how designated. for the exchange of ideas, and in-depth stayed in contact with state regulators 2570.94 Consequnces of default. consideration of insurance issues by and considered their concerns in 2570.95 Consent order or settlement. regulators, industry representatives, and developing these regulations. These 2570.96 Scope of discovery. consumers. In addition to the general regulations should help the states 2570.97 Summary decision. discussions, committee meetings, and enforce their own laws as they apply to 2570.98 Decision of the administrative law task force meetings, the NAIC sponsors judge. MEWAs since the reports they require 2570.99 Review by the Secretary. standing HIPAA meetings for members will be available to them and will during the quarterly conferences, 2570.100 Scope of review. identify MEWAs operating in each state. 2570.101 Procedures for review by the including a Centers for Medicare and Secretary. Medicaid Services (CMS)/Department of Statutory Authority Labor (DOL) meeting on HIPAA issues. 29 U.S.C. 1132(c)(5) and 1135 and § 2570.90 Scope of rules. (This meeting provides CMS and DOL Secretary of Labor’s Order 1–2003, 68 The rules of practice set forth in this the opportunity to provide updates on FR 5374 (Feb.3, 2003). subpart are applicable to ‘‘502(c)(5) civil regulations, bulletins, enforcement penalty proceedings’’ (as defined in actions, and outreach efforts regarding List of Subjects in 29 CFR Part 2570 2570.91(n)) under section 502(c)(5) of HIPAA.) In these quarterly meetings, Administrative practice and the Employee Retirement Income issues relating to MEWAs and the procedure, Claims, Employee benefit Security Act of 1974. The rules of implementation of the Form M–1 filing plans, Law enforcement, Penalties, procedure for administrative hearings requirement are frequently discussed Pensions, Reporting and recordkeeping published by the Department’s Office of and, periodically, entire sessions are requirements. Administrative Law Judges in subpart A scheduled that are dedicated of 29 CFR part 18 will apply to matters ■ exclusively to MEWA/Form M–1 issues. For the reasons set out in the preamble, arising under ERISA section 502(c)(5) The Department also cooperates with Part 2570 of Chapter XXV of Title 29 of except as described by this section. the states in several ongoing outreach the Code of Federal Regulations is These proceedings shall be conducted initiatives, through which information amended as follows: as expeditiously as possible, and the is shared among federal regulators, state PART 2570—[AMENDED] parties shall make every effort to avoid regulators, and the regulated delay at each stage of the proceedings. community. For example, the ■ 1. The authority for part 2570 con- Department has established a Health § 2570.91 Definitions. tinues to read: Benefits Education Campaign with more For 502(c)(5) civil penalty than 70 partners, including CMS, the Authority: 5 U.S.C. 8477, 29 U.S.C. proceedings, this section shall apply in NAIC, and many business and consumer 1002(40), 1021, 1108, 1132, 1135, sec. 102, lieu of the definitions in § 18.2 of this Reorganization Plan No. 4 of 1978, 43 FR groups. In addition, the Department title. Web site offers links to important state 47713, 3 CFR, 1978 Comp., p. 332, and E.O. 12108, 44 FR 1065, 3 CFR, 1978 Comp., p. (a) Adjudicatory proceeding means a Web sites and other resources, 275; Secretary of Labor’s Order 1–2003, 68 judicial-type proceeding before an facilitating coordination between the FR 5374 (Feb.3, 2003). administrative law judge leading to the state and federal regulators and the formulation of a final order; regulated community. ■ 2. Sec. 2570.3 is amended to revise (b) Administrative law judge means an The Department also coordinates with paragraph (a) to read as follows: administrative law judge appointed state insurance departments to freeze pursuant to the provisions of 5 U.S.C. assets when a MEWA operator is § 2570.3 Service: Copies of documents and pleadings. 3105; committing fraud or operating in a (c) Answer means a written statement financially unsound manner. In these * * * * * that is supported by reference to specific situations, typically, a state will obtain (a) General. Copies of all documents circumstances or facts surrounding the a cease and desist order to stave off shall be served on all parties of record. notice of determination issued pursuant further action by the MEWA in that All documents should clearly designate to 29 CFR 2560.502c–5(g); state. In certain situations, the the docket number, if any, and short (d) Commencement of proceeding is Department will then obtain a title of all matters. All documents shall the filing of an answer by the temporary restraining order (TRO) to be delivered or mailed to the Chief respondent; freeze assets of the MEWA nationwide. Docket Clerk, Office of Administrative (e) Consent agreement means any In one case this year, the Department Law Judges, 800 K Street, NW., Suite written document containing a specified obtained a TRO to freeze assets of a 400, Washington, DC 20001–8002, or to proposed remedy or other relief MEWA whose operators were the OALJ regional Office to which the acceptable to the Department and committing fraud and not paying proceedings may have been transferred consenting parties;

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(f) ERISA means the Employee § 2570.92 Service: Copies of documents § 2570.93 Parties, how designated. Retirement Income Security Act of 1974, and pleadings. For 502(c)(5) civil penalty as amended; For 502(c)(5) penalty proceedings, proceedings, this section shall apply in (g) Final order means the final this section shall apply in lieu of 29 lieu of 29 CFR 18.10. decision or action of the Department of CFR 18.3. (a) The term party wherever used in Labor concerning the assessment of a this subpart shall include any natural (a) In general. Copies of all documents person, corporation, employee benefit civil penalty under ERISA section shall be served on all parties of record. 502(c)(5) against a particular party. Such plan, association, firm, partnership, All documents should clearly designate trustee, receiver, agency, public or final order may result from a decision of the docket number, if any, and short an administrative law judge or the private organization, or government title of all matters. All documents to be agency. A party against whom a civil Secretary, the failure of a party to file a filed shall be delivered or mailed to the statement of reasonable cause described penalty is sought shall be designated as Chief Docket Clerk, Office of ‘‘respondent.’’ The Department shall be in 29 CFR 2560.502c–5(e) within the Administrative Law Judges (OALJ), 800 designated as the ‘‘complainant.’’ prescribed time limits, or the failure of K Street, NW., Suite 400, Washington, (b) Other persons or organizations a party to invoke the procedures for DC 20001–8002, or to the OALJ Regional shall be permitted to participate as hearings or appeals under this title Office to which the proceeding may parties only if the administrative law within the prescribed time limits. Such have been transferred for hearing. Each judge finds that the final decision could a final order shall constitute final document filed shall be clear and directly and adversely affect them or the agency action within the meaning of 5 legible. class they represent, that they may U.S.C. 704; (b) By parties. All motions, petitions, contribute materially to the disposition (h) Hearing means that part of a pleadings, briefs, or other documents of the proceedings and their interest is proceeding which involves the shall be filed with the Office of not adequately represented by existing submission of evidence, either by oral Administrative Law Judges with a copy, parties, and that in the discretion of the presentation or written submission, to administrative law judge the the administrative law judge; including any attachments, to all other parties of record. When a party is participation of such persons or (i) Order means the whole or any part represented by an attorney, service shall organizations would be appropriate. (c) A person or organization not of a final procedural or substantive be made upon the attorney. Service of named as a respondent wishing to disposition of a matter under ERISA any document upon any party may be participate as a party under this section section 502(c)(5); made by personal delivery or by mailing shall submit a petition to the (j) Party includes a person or agency a copy to the last known address. The administrative law judge within fifteen named or admitted as a party to a Department shall be served by delivery (15) days after the person or proceeding; to the Associate Solicitor, Plan Benefits organization has knowledge of or should (k) Person includes an individual, Security Division, ERISA Section have known about the proceeding. The partnership, corporation, employee 502(c)(5) Proceeding, P.O. Box 1914, petition shall be filed with the benefit plan, association, exchange, or Washington, DC 20013. The person administrative law judge and served on other entity or organization; serving the document shall certify to the each person or organization who has manner and date of service. (l) Petition means a written request, been made a party at the time of filing. made by a person or party, for some (c) By the Office of Administrative Such petition shall concisely state: affirmative action; Law Judges. Service of orders, decisions (1) Petitioner’s interest in the and all other documents shall be made (m) Pleading means the notice as proceeding; by regular mail to the last known (2) How his or her participation as a defined in 29 CFR 2560.502c–5(g), the address. party will contribute materially to the answer to the notice, any supplement or disposition of the proceeding; amendment thereto, and any reply that (d) Form of pleadings—(1) Every pleading shall contain information (3) Who will appear for petitioner; may be permitted to any answer, (4) The issues on which petitioner indicating the name of the Employee supplement or amendment; wishes to participate; and (n) 502(c)(5) civil penalty proceeding Benefits Security Administration (5) Whether petitioner intends to means an adjudicatory proceeding (EBSA) as the agency under which the present witnesses. relating to the assessment of a civil proceeding is instituted, the title of the (d) Objections to the petition may be penalty provided for in section 502(c)(5) proceeding, the docket number (if any) filed by a party within fifteen (15) days of ERISA; assigned by the Office of Administrative of the filing of the petition. If objections Law Judges and a designation of the to the petition are filed, the (o) Respondent means the party type of pleading or paper (e.g., notice, against whom the Department is seeking administrative law judge shall then motion to dismiss, etc.). The pleading or determine whether petitioners have the to assess a civil sanction under ERISA paper shall be signed and shall contain section 502(c)(5); requisite interest to be a party in the the address and telephone number of proceedings, as defined in paragraph (b) (p) Secretary means the Secretary of the party or person representing the of this section, and shall permit or deny Labor and includes, pursuant to any party. Although there are no formal participation accordingly. Where delegation of authority by the Secretary, specifications for documents, they petitions to participate as parties are any assistant secretary (including the should be typewritten when possible on made by individuals or groups with 1 × Assistant Secretary for Employee standard size 8 ⁄2 11 inch paper. common interests, the administrative Benefits Security), administrator, (2) Illegible documents, whether law judge may request all such commissioner, appellate body, board, or handwritten, typewritten, photocopies, petitioners to designate a single other official of the Department of or otherwise, will not be accepted. representative, or he or she may Labor; and Papers may be reproduced by any recognize one or more of such (q) Solicitor means the Solicitor of duplicating process provided all copies petitioners. The administrative law Labor or his or her delegate. are clear and legible. judge shall give each such petitioner as

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well as the parties, written notice of the (4) A waiver of any right to challenge additional evidence upon which a decision on his or her petition. For each or contest the validity of the order and decision on the contested issues may petition granted, the administrative law decision entered into in accordance reasonably be based; judge shall provide a brief statement of with the agreement; and (4) If there are no objections to the the basis of the decision. If the petition (5) That the order and decision of the proposed settlement, or if the is denied, he or she shall briefly state administrative law judge shall be final administrative law judge decides to sign the grounds for denial and shall then agency action. the proposed settlement after reviewing treat the petition as a request for (c) Submission. On or before the any such objections, the administrative participation as amicus curiae. expiration of the time granted for law judge shall incorporate the consent negotiations, but, in any case, at least agreement into a decision meeting the § 2570.94 Consequences of default. five (5) days prior to the date set for requirements of paragraph (d) of this For 502(c)(5) civil penalty hearing, the parties or their authorized section. proceedings, this section shall apply in representative or their counsel may: lieu of 29 CFR 18.5(a) and (b). Failure (1) Submit the proposed agreement § 2570.96 Scope of discovery. of the respondent to file an answer to containing consent findings and an For 502(c)(5) civil penalty the notice of determination described in order to the administrative law judge; proceedings, this section shall apply in 29 CFR 2560.502c–5(g) within the 30 (2) Notify the administrative law lieu of 29 CFR 18.14. day period provided by 29 CFR judge that the parties have reached a full (a) A party may file a motion to 2560.502c–5(h) shall be deemed to settlement and have agreed to dismissal conduct discovery with the constitute a waiver of his or her right to of the action subject to compliance with administrative law judge. The motion appear and contest the allegations of the the terms of the settlement; or for discovery shall be granted by the notice of determination, and such (3) Inform the administrative law administrative law judge only upon a failure shall be deemed to be an judge that agreement cannot be reached. showing of good cause. In order to admission of the facts as alleged in the (d) Disposition. In the event that a establish ‘‘good cause’’ for the purposes notice for purposes of any proceeding settlement agreement containing of this section, a party must show that involving the assessment of a civil consent findings and an order is the discovery requested relates to a penalty under section 502(c)(5) of the submitted within the time allowed genuine issue as to a material fact that Act. Such notice shall then become a therefor, the administrative law judge is relevant to the proceeding. The order final order of the Secretary, within the shall issue a decision incorporating of the administrative law judge shall meaning of § 2570.91(g), forty-five (45) such findings and agreement within expressly limit the scope and terms of days from the date of the service of the thirty (30) days of receipt of such discovery to that for which ‘‘good notice. document. The decision of the cause’’ has been shown, as provided in administrative law judge shall this paragraph. § 2570.95 Consent order or settlement. incorporate all of the findings, terms, (b) A party may obtain discovery of For 502(c)(5) civil penalty and conditions of the settlement documents and tangible things proceedings, the following shall apply agreement and consent order of the otherwise discoverable under paragraph in lieu of 29 CFR 18.9. parties. Such decision shall become a (a) of this section and prepared in (a) In general. At any time after the final agency action within the meaning anticipation of or for the hearing by or commencement of a proceeding, but at of 5 U.S.C. 704. for another party’s representative least five (5) days prior to the date set (e) Settlement without consent of all (including his or her attorney, for hearing, the parties jointly may move parties. In cases in which some, but not consultant, surety, indemnitor, insurer, to defer the hearing for a reasonable all, of the parties to a proceeding submit or agent) only upon showing that the time to permit negotiation of a a consent agreement to the party seeking discovery has substantial settlement or an agreement containing administrative law judge, the following need of the materials or information in findings and an order disposing of the procedure shall apply: the preparation of his or her case and whole or any part of the proceeding. (1) If all of the parties have not that he or she is unable without undue The allowance of such deferment and consented to the proposed settlement hardship to obtain the substantial the duration thereof shall be in the submitted to the administrative law equivalent of the materials or discretion of the administrative law judge, then such non-consenting parties information by other means. In ordering judge, after consideration of such factors must receive notice, and a copy, of the discovery of such materials when the as the nature of the proceeding, the proposed settlement at the time it is required showing has been made, the requirements of the public interest, the submitted to the administrative law administrative law judge shall protect representations of the parties and the judge; against disclosure of the mental probability of reaching an agreement (2) Any non-consenting party shall impressions, conclusions, opinions, or which will result in a just disposition of have fifteen (15) days to file any legal theories of an attorney or other the issues involved. objections to the proposed settlement representative of a party concerning the (b) Content. Any agreement with the administrative law judge and proceeding. containing consent findings and an all other parties; order disposing of a proceeding or any (3) If any party submits an objection § 2570.97 Summary decision. part thereof shall also provide: to the proposed settlement, the For 502(c)(5) civil penalty (1) That the order shall have the same administrative law judge shall decide proceedings, this section shall apply in force and effect as an order made after within thirty (30) days after receipt of lieu of 29 CFR 18.41. full hearing; such objections whether to sign or reject (a) No genuine issue of material fact. (2) That the entire record on which the proposed settlement. Where the (1) Where no issue of material fact is any order may be based shall consist record lacks substantial evidence upon found to have been raised, the solely of the notice and the agreement; which to base a decision or there is a administrative law judge may issue a (3) A waiver of any further procedural genuine issue of material fact, then the decision which, in the absence of an steps before the administrative law administrative law judge may establish appeal pursuant to §§ 2570.99 through judge; procedures for the purpose of receiving 2570.101, shall become a final order.

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(2) A decision made under this in whole, the administrative law judge review. Such notice of appeal must be paragraph shall include a statement of: shall make his or her decision. The served on all parties of record. (i) Findings of fact and conclusions of decision of the administrative law judge (c) Upon receipt of a notice of appeal, law, and the reasons therefore, on all shall include findings of fact and the Secretary shall request the Chief issues presented; and conclusions of law with reasons therefor Administrative Law Judge to submit to (ii) Any terms and conditions of the upon each material issue of fact or law him or her a copy of the entire record rule or order. presented on the record. The decision of before the administrative law judge. (3) A copy of any decision under this the administrative law judge shall be paragraph shall be served on each party. based upon the whole record. In a § 2570.100 Scope of review. (b) Hearings on issues of fact. Where contested case in which the Department The review of the Secretary shall not a genuine question of material fact is and the Respondent have presented be a de novo proceeding but rather a raised, the administrative law judge their positions to the administrative law review of the record established before shall, and in any other case may, set the judge pursuant to the procedures for the administrative law judge. There case for an evidentiary hearing. 502(c)(5) civil penalty proceedings as shall be no opportunity for oral § 2570.98 Decision of the administrative set forth in this subpart, the penalty (if argument. any) which may be included in the law judge. § 2570.101 Procedures for review by the For 502(c)(5) civil penalty decision of the administrative law judge Secretary. proceedings, this section shall apply in shall be limited to the penalty expressly provided for in section 502(c)(5) of (a) Upon receipt of the notice of lieu of 29 CFR 18.57. appeal, the Secretary shall establish a (a) Proposed findings of fact, ERISA. It shall be supported by reliable briefing schedule which shall be served conclusions, and order. Within twenty and probative evidence. The decision of on all parties of record. Upon motion of (20) days of the filing of the transcript the administrative law judge shall one or more of the parties, the Secretary of the testimony or such additional time become a final agency action within the may, in his or her discretion, permit the as the administrative law judge may meaning of 5 U.S.C. 704 unless an submission of reply briefs. allow, each party may file with the appeal is made pursuant to the (b) The Secretary shall issue a administrative law judge, subject to the procedures set forth in §§ 2570.99 decision as promptly as possible after judge’s discretion, proposed findings of through 2570.101. receipt of the briefs of the parties. The fact, conclusions of law, and an order § 2570.99 Review by the Secretary. Secretary may affirm, modify, or set together with a supporting brief aside, in whole or in part, the decision expressing the reasons for such (a) The Secretary may review a on appeal and shall issue a statement of proposals. Such proposals and briefs decision of an administrative law judge. reasons and bases for the action(s) shall be served on all parties, and shall Such a review may occur only when a taken. Such decision by the Secretary refer to all portions of the record and to party files a notice of appeal from a shall be final agency action within the all authorities relied upon in support of decision of an administrative law judge meaning of 5 U.S.C. 704. each proposal. within twenty (20) days of the issuance (b) Decision of the administrative law of such decision. In all other cases, the Signed at Washington DC, this 31st day of judge. Within a reasonable time after the decision of the administrative law judge March, 2003. time allowed for the filing of the shall become final agency action within Ann L. Combs, proposed findings of fact, conclusions of the meaning of 5 U.S.C. 704. Assistant Secretary, Employee Benefits law, and order, or within thirty (30) (b) A notice of appeal to the Secretary Security Administration, Department of days after receipt of an agreement shall state with specificity the issue(s) Labor. containing consent findings and an in the decision of the administrative law [FR Doc. 03–8117 Filed 4–7–03; 8:45 am] order disposing of the disputed matter judge on which the party is seeking BILLING CODE 4510–29–P

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Part V

Department of Transportation Federal Aviation Administration

14 CFR Part 121 Flightcrew Compartment Access and Door Designs; Final Rule

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DEPARTMENT OF TRANSPORTATION (3) On the next page, which contains have not been required to meet any the docket summary information, click significant security threat, such as small Federal Aviation Administration on the item you want to see. arms fire or shrapnel, or the exercise of You can also get an electronic copy brute force to enter the flightcrew 14 CFR Part 121 using the Internet through the FAA’s compartment. Web page at http://www.faa.gov/avr/ Besides affording an uninterrupted [Docket No. FAA–2001–10770; SFAR 92–5] arm/nprm/nprm.htm or the Government work environment for the flightcrew, Printing Office’s Web page at http:// _ flightcrew compartment doors often RIN 2120–AH97 www.access.gpo.gov/su docs/aces/ must meet other important safety aces140.html. standards. Should there be a sudden Flightcrew Compartment Access and You can also get a copy by submitting decompression of the airplane, separate Door Designs a request to the Federal Aviation compartments within the airplane, like Administration, Office of Rulemaking, AGENCY: Federal Aviation the cabin and the crew compartments, ARM–1, 800 Independence Ave., SW., Administration (FAA), DOT. must be designed so that the pressure Washington, DC 20591, or by calling differential that is created does not ACTION: Final rule. (202) 267–9680. Make sure to identify compromise the basic airplane the docket number or SFAR number of SUMMARY: This action supersedes structure. Certification standards require this rulemaking. Special Federal Aviation Regulation that airplane designs provide a method (SFAR) 92–4, which was published on Small Business Regulatory Enforcement to compensate for decompression in a March 19, 2002, to allow operators to Fairness Act manner that avoids significant damage quickly modify the flightcrew The Small Business Regulatory to the airplane. In many cases, compartment door to delay or deter Enforcement Fairness Act (SBREFA) of flightcrew compartment doors provide unauthorized entry to the flightcrew 1996 requires the FAA to comply with the pressure compensation by being compartment. This action temporarily small entity requests for information vented or swinging open to equalize the authorizes variances from existing advice about compliance with statutes pressure between the cabin and the design standards for the doors and and regulations within the FAA’s flightcrew compartment. certain operational rules associated with jurisdiction. Therefore, any small entity In addition, design standards require the modifications. It allows for approval that has a question regarding this that the flightcrew have a path to exit for return to service of modified document may contact its local FAA the flightcrew compartment in an airplanes without prior approved data if official. Internet users can find emergency, if the cockpit window exits the modification constitutes a major additional information on SBREFA on are not usable. Flightcrew compartment alteration. This action prohibits the the FAA’s Web page at http:// doors have been designed to provide possession of flightdeck compartment www.faa.gov/avr/arm/sbrefa.htm and this escape path. But this escape feature door keys by other than the flightcrew send electronic inquiries to the may also enable easier unauthorized during flight, unless the flightdeck door following Internet address: 9–AWA– entry into the flightcrew compartment has an internal flightdeck locking device [email protected]. from the cabin. installed, operative, and in use. This action extends regulatory relief for all- Background Operating regulations, in particular cargo transport category airplanes and a § 121.379(b) in the case of a major The September 11, 2001, hijacking alteration, require the work to be done limited number of passenger airplanes events demonstrated that some persons beyond April 9, 2003. in accordance with technical data are willing to hijack airplanes and use approved by the Administrator. DATES: This action is effective April 9, them as weapons against the citizens of Operating regulations for airlines also 2003 and shall remain in effect until the United States. This safety and require that each crewmember have a rescinded. security threat was not anticipated and, key readily available to open doors therefore, not considered in the design FOR FURTHER INFORMATION CONTACT: between passengers and an emergency Dave Rich, Certification Procedures of transport airplanes. The hijackings exit. Some airlines issue flightcrew Branch, Aircraft Certification Service, made clear the critical need to improve compartment door keys to all their Federal Aviation Administration, 800 the security of the flightcrew crewmembers. This allows flight Independence Avenue, SW., compartment. attendants to enter the flightcrew On November 16, 2001, Congress Washington, DC 20591; telephone: (202) compartment and assist the flightcrew enacted the Aviation and Transportation 267–7141; e-mail address: 9-awa-avr- in an emergency, such as incapacitation Security Act, Pub. L. 107–71. Section [email protected]. of a flight crewmember. But it also offers 104(a)(1)(B) of the Act requires the FAA an opportunity for an individual to SUPPLEMENTARY INFORMATION: to issue an order requiring the overpower or coerce a flight attendant, strengthening of the flightdeck door and Availability of This Action take away the key, and enter the locks on certain passenger carrying flightcrew compartment. You can get an electronic copy of this airplanes. document from the Internet by taking This SFAR authorized a temporary the following steps: Flightcrew Compartment Door Designs period during which non-compliance (1) Go to the search function of the Flightcrew compartment doors on with design requirements were allowed Department of Transportation’s transport category airplanes have been when improvements to flightcrew electronic Docket Management System designed principally to ensure privacy, compartment security were made. In (DMS) Web page (http://dms.dot.gov/ so pilots could focus their entire addition, the FAA waived procedural search). attention on their normal and requirements applicable to major (2) On the search page, type in the last emergency flight duties. The doors have alterations (§ 121.379(b)), the approval five digits of the docket number shown not been designed to provide an of service information and requirements at the beginning of this document. Click impenetrable barrier between the cabin for production of parts for door on ‘‘search.’’ and the flightcrew compartment. Doors modifications.

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Prior Versions of SFAR 92 registered in another country, but 92 waived otherwise applicable Original SFAR 92 was published on operated by a part 121 certificate holder. certification processes. We expect that all passenger operators October 9, 2001, and allowed all part Other Rulemaking will have reinforced doors on their 121 passenger carrying operators to In parallel with SFAR 92, the FAA airplanes by April 9, 2003. But some install flightcrew compartment door issued an immediately adopted rule doors may not have formal certification improvements. It allowed airframe (IAR) setting new design standards for approval by that date. As presently manufacturers and modifiers to produce flightdeck doors in 14 CFR part 25 written, SFAR 92–4 will expire on April service information without separate (Amendment Nos. 25–106 and 121–288, 9, 2003. If it expires, operators will lose FAA approval to assist operators in 67 FR 2118, January 10, 2002). These the ability to operate with reinforced developing modifications to improve new standards enhance resistance to doors that lack certification approval. If intrusion resistance to the flightcrew blunt force and ballistic intrusion. In this were to happen, the operators compartment. The SFAR included a addition, the IAR requires all airplanes would be penalized even though doors provision that overrode the requirement required to have a door under section capable of deterring terrorists are in for parts production approval in support 121.313(f), as well as all-cargo transport place. of door reinforcement activities. Should category airplanes that have flightdeck To avoid this result, the SFAR is any of the changes to the door constitute doors installed on or after January 15, being extended to July 31, 2003, a major alteration, the SFAR relieved 2002, to have a door meeting the new provided certain criteria are met. July the operator of having to obtain prior design standards. The stronger doors 31, 2003, is selected because we believe approval of the data. In addition to the must be installed not later than April 9, that all projects that will qualify for above changes, the FAA also believed it 2003. Doors meeting the new design approval will have approval by that was prudent to eliminate the ability of standards will replace the doors date. To take advantage of this intruders to gain access by obtaining a reinforced under this SFAR. extension, flight attendant’s key. For that reason, SFAR 92–5 (1) Passenger operators must have the SFAR temporarily changed the installed reinforced doors before requirement in § 121.313(g) by stating This SFAR is being extended to midnight April 9, 2003. that only flight crewmembers, and not address two circumstances. One is a (2) The FAA must have determined cabin crewmembers, would have response to recent legislation limiting before midnight April 9, 2003, that flightcrew compartment keys during the application and enforcement of those doors meet the updated intrusion flight. requirements for reinforced doors on resistance standards of 14 CFR SFAR 92–1, published on October 17, cargo airplanes. The other is the need 25.795(a)(1) and (2). 2001, extended the SFAR to cargo for continued relief for a limited number (3) A formal application for airplane operators. of passenger operators. certification approval of the door must As mentioned above, SFAR 92 Section 355 of the recently adopted have been submitted to the FAA before temporarily changed section 121.313(g) Consolidated Appropriations Resolution March 10, 2003. to prohibit the possession of flightdeck (Pub. L. 108–7) limited the FAA’s ability These criteria should assure that keys by non-flightdeck crewmembers. to apply and enforce the new reinforced operators and door producers have SFAR 92–2, published on November 21, door standards for cargo airplanes. As a made a good faith effort to meet the 2001, modified the prohibition to allow result, cargo operators will not be reinforced door requirement. Once these possession of the key under certain subject to the April 9, 2003 deadline for criteria have been satisfied, operators limited circumstances. installation of reinforced doors. can continue to operate until the final When SFAR 92 was originally issued, However, cargo operators have installed certification approval is issued. and subsequently revised, the FAA internal locking devices under the Applicants and operators must expected that flightdeck modifications requirements and authority of this recognize that compliance with all would be made as soon as possible. SFAR. We expect that cargo operators airworthiness standards is essential. For While this was the case for the who have such devices will want to example, some applicants have been substantial majority of operators, not all continue to use them after April 9, 2003, unable to demonstrate compliance with had accomplished the short-term even if they choose not to install a the decompression standards of modifications. Therefore, on January 15, reinforced door. As described above, § 25.365. Based on their progress to 2002, SFAR 92–3 was published to expiration of the SFAR on April 9, 2003, date, it is not clear that they will mandate installation of the internal will limit or eliminate the authority for ultimately be able to do so. Unless these locking devices. This revision also cargo operators to continue to use these designs can be shown to comply with expanded the modification authority to devices. To avoid this decrease in all airworthiness standards by the U.S. registered, transport category security, the SFAR is extended to extended deadline provided by this airplanes that are operated under part continue the authority for these devices SFAR, operators will be required to 129, foreign operations. on cargo airplanes. The new expiration replace these doors with doors that have SFAR 92–4 was published on March date of September 30, 2003, was been shown to comply with all 19, 2002, to extend the authority to selected to correspond with the applicable standards. Operators who are return airplanes to service without expiration date of the Resolution. aware that their doors are unlikely to be previously approved data past the Passenger operators have made great approved must procure doors from other previously established April 22, 2002 strides in meeting the April 9, 2003, approved sources in sufficient time to date. This revision to the SFAR deadline for installation of reinforced comply with § 121.313(j) by July 31, explicitly stated that operational doors. As a part of the installation 2003, the extended deadline for this requirements in sections 121.313(h) and process, and to adopt improved security SFAR. 121.583(b)(1) and (2) are waived if a expeditiously, some operators installed conflict exists when internal locks are doors that meet the strength Justification for Immediate Adoption installed and used. The introductory requirements prior to formal The SFAR is scheduled to expire on language of paragraph 2 was also certification approval. These April 9, 2003. There is insufficient time revised to address airplanes that are installations are possible because SFAR to solicit comment on this proposal.

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Because the circumstances described safety risk. Further, to monitor progress agency to prepare a written statement herein warrant immediate action by the toward the goal of full compliance, the assessing the effects of any Federal FAA, the Administrator finds that SFAR requires a report by April 22, mandate in a proposed or final agency notice and public comment under 5 2002, that describes how the operator rule that may result in a $100 million or U.S.C. 553(b) are impracticable and will come into full regulatory more expenditure (adjusted annually for contrary to the public interest. Further, compliance. inflation) in any one year by State, local, the Administrator finds that good cause Respondents: The respondents are an and tribal governments, in the aggregate, exists under 5 U.S.C. 553(d) for making estimated 135 airplane operators or by the private sector; such a mandate this final rule effective immediately covered under 14 CFR parts 121 and is deemed to be a ‘‘significant regulatory upon publication. This action is 129. action.’’ This SFAR does not contain necessary to prevent a possible Burden: The burden associated with such a mandate. Therefore, the imminent hazard to airplanes and to this SFAR is 6480 hours. requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not protect persons and property within the Regulatory Evaluation United States. apply. Additionally, with respect to the This rulemaking action is taken under Also, the Regulatory Flexibility Act provisions requiring modifications to an emergency situation within the does not require the preparation of a strengthen the flightdeck doors and meaning of Section 6(a)(3)(D) of regulatory flexibility assessment on a locks, Pub. L. 107–71 authorized the Executive Order 12866, Regulatory rule not required to be issued as a Administrator to issue an order without Planning and Review. It also is Notice of Proposed Rulemaking (NPRM) regard to the provisions of chapter 5 of considered an emergency regulation under the Administrative Procedure Title 5 of the United States Code. The under Paragraph 11(g) of the Act. Department of Transportation (DOT) modification to section 121.313 Environmental Analysis contained in this SFAR is within the Regulatory Policies and Procedures. In scope of this authority and is adopted addition, it is a significant rule within FAA Order 1050.1D defines FAA without public notice and a prior the meaning of the Executive Order and actions that may be categorically opportunity to comment. DOT’s policies and procedures. No excluded from preparation of a National regulatory analysis or evaluation Environmental Policy Act (NEPA) International Compatibility accompanies the final rule; however, environmental impact statement. In In keeping with U.S. obligations both DOT and OMB have reviewed this accordance with FAA Order 1050.1D, under the Convention on International rulemaking. At this time, the FAA is not appendix 4, paragraph 4(j) this Civil Aviation, it is FAA policy to able to assess whether this final rule rulemaking action qualifies for a comply with International Civil will have a significant impact on a categorical exclusion. Aviation Organization (ICAO) Standards substantial number of small entities as Energy Impact and Recommended Practices to the defined in the Regulatory Flexibility Act maximum extent practicable. The FAA of 1980, as amended. However, we will The energy impact of this SFAR has determined that there are no ICAO be conducting a regulatory evaluation of been assessed in accordance with the Standards and Recommended Practices the cost and benefits of this rulemaking, Energy Policy and Conservation Act that correspond to this SFAR. including any impact on small entities, (EPCA) Pub. L. 94–163, as amended (42 at a later date. U.S.C. 6362) and FAA Order 1053.1. It Paperwork Reduction Act has been determined that this SFAR is This emergency final SFAR contains Executive Order 13132, Federalism not a major regulatory action under the information collection activities subject The FAA has analyzed this SFAR provisions of the EPCA. to the Paperwork Reduction Act of 1995 under the principles and criteria of List of Subjects in 14 CFR Part 121 (44 U.S.C. 3507(d)). In accordance with Executive Order 13132, Federalism. We section 3507(j)(1)(B) of that statute, the have determined that this action will Air carriers, Aircraft, Airmen, FAA requested the Office of not have a substantial direct effect on Aviation safety, Charter flights, Management and Budget to grant an the States, or the relationship between Reporting and recordkeeping immediate emergency clearance on the the national Government and the States, requirements, Safety, Transportation. paperwork package. OMB granted an or on the distribution of power and The Amendment emergency clearance and assigned OMB responsibilities among the various ■ control number 2120–0674. As levels of government. Therefore, we For the reasons set forth above, the protection provided by the Paperwork have determined that this final rule does Federal Aviation Administration Reduction Act, an agency may not not have federalism implications. amends 14 CFR part 121 as follows: conduct or sponsor, and a person is not Also, the Regulatory Flexibility Act PART 121—OPERATING required to respond to, a collection of does not require the preparation of a REQUIREMENTS: DOMESTIC, FLAG, information unless it displays a regulatory flexibility assessment on a AND SUPPLEMENTAL OPERATIONS currently valid OMB control number. rule not required to be issued as a Following is a description of the Notice of Proposed Rulemaking (NPRM) ■ 1. The authority citation for part 121 information collection burden under the Administrative Procedure continues to read as follows: associated. Act. Authority: 49 U.S.C. 106(g), 1153, 40113, Title: Flightcrew Compartment Access Unfunded Mandates Reform Act 40119, 41706, 44101, 44701–44702, 44705, and Door Designs 44709–44711, 44713, 44716–44717, 44722, Summary/Need: The SFAR required The Unfunded Mandates Reform Act 44901, 44903–44904, 44912, 46105. operators to submit a report to the FAA of 1995 (the Act), enacted as Pub. L. by February 15, 2002, that details the 104–4 on March 22, 1995, is intended, SFAR No. 92–4 [Removed] specific modifications. This will allow among other things, to curb the practice ■ 2. Remove Special Federal Aviation the FAA to monitor what has been of imposing unfunded Federal mandates Regulation No. 92–4. installed and take action if the on State, local, and tribal governments. ■ 3. Add Special Federal Aviation Regu- installation creates an unwarranted Title II of the Act requires each Federal lation (SFAR) 92–5 to read as follows:

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Special Federal Aviation Regulations what major alterations have been done exit must be readily available for each No. 92–5—Flightcrew Compartment without previously approved data. crewmember. No key to the flightcrew Access and Door Designs (ii) If, upon reviewing the data compartment shall be available to any submitted in paragraph 2(a)(i) of this 1. Applicability. This Special Federal crewmember during flight, except for SFAR, the Administrator determines Aviation Regulation (SFAR) applies to flight crewmembers, unless an internal that a door modification presents an all operators that hold an air carrier flightdeck locking device such as a unacceptable safety risk, the FAA may certificate or operating certificate issued deadbolt or bar is installed, operative, issue an order requiring changes to such under 14 CFR part 119 and that conduct and in use. modifications. 6. Door Modification Requirement. operations under this part 121 and to (b) An applicant for an airworthiness operators of U.S. registered transport After March 1, 2002, for each airplane certificate may obtain such a certificate required under § 121.313(f) to have a category airplanes operated under 14 for modified airplanes to be operated by CFR part 129, except paragraph 5 of this door between the passenger and pilot operators described in this SFAR. compartments, and for transport SFAR does not apply to cargo (c) A holder of a production certificate category all-cargo airplanes that have a operations and 14 CFR part 129 may submit for airworthiness door installed between the pilot operations. It applies to the operators certification or approval, modified compartment and any other occupied specified in this SFAR that modify airplanes to be operated by operators compartment on or after January 15, airplanes to improve the flightcrew described in this SFAR. compartment door installations to (d) A person may produce parts for 2002, such door must be equipped with restrict the unwanted entry of persons installation on airplanes in connection an internal locking device installed, into the flightcrew compartment. This with modifications described in this operative, and in use. Such internal SFAR also applies to production SFAR, without FAA parts manufacturer locking device has to be designed so certificate holders and applicants for approval (PMA). that it can only be unlocked from inside airworthiness certificates for airplanes 3. Report of Modifications. Not later the flightdeck. to be operated by operators specified in than April 22, 2002, all operators who 7. Termination. For all-cargo transport this SFAR, and producers of parts to be are required to install flightdeck door category airplanes, this SFAR terminates used in modifications of such airplanes. modifications in accordance with 14 on October 1, 2003. For passenger 2. Regulatory Relief. Contrary CFR 121.313(j) must submit a report to airplanes, this SFAR expires on April 9, provisions of this part 21, and the Director, Aircraft Certification 2003, except for airplanes meeting the §§ 121.313(h), 121.153(a)(2), 121.153(c), Service. The report must describe the criteria specified in paragraphs 7.a, b, 121.379(b), 121.583(b)(1) and (2) and 14 modifications to be made and provide a and c, below. For airplanes meeting CFR 129.13 notwithstanding: schedule for the changes necessary to these criteria, this SFAR expires on July (a) An operator may operate airplanes restore compliance with all applicable 31, 2003. modified to improve the flightcrew airworthiness requirements and to meet a. Before midnight April 9, 2003, the compartment door installations to the requirements of 14 CFR 121.313(j). operator must have installed a restrict the unauthorized entry of The schedule may not extend beyond strengthened flightdeck door meeting persons into the flightcrew the termination date of this SFAR. the requirement of paragraph 7.b; compartment without regard to the 4. Return to Service Documentation. b. Before midnight April 9, 2003, the applicable airworthiness requirements Where operators have modified FAA must have found that the door and may modify those airplanes for that airplanes as authorized in this SFAR, complies with 14 CFR 25.795(a)(1) and purpose, using technical data not the affected airplane must be returned to (2) in effect on January 15, 2002; and previously approved by the service with a note that it was done c. Before March 10, 2003, a formal Administrator, subject to the following under the provisions of this SFAR. application for certification approval of conditions: 5. Provision for Flightdeck Door the door must have been submitted to (i) Not later than February 15, 2002, Compartment Key. Contrary to the FAA. submit to the Director, Aircraft provisions of § 121.313(g), the following Certification Service, a detailed provision applies: A key for each door Issued in Washington, DC, on April 4, description of the changes to the that separates a passenger compartment 2003. airplane that have been accomplished from an emergency exit must be Marion C. Blakey, before that date to enhance the intrusion identified to passengers in the briefing Administrator. resistance of the flightcrew required by § 121.571(a)(1)(ii). The key [FR Doc. 03–8735 Filed 4–7–03; 9:17 am] compartment including identification of required for access to the emergency BILLING CODE 4910–13–P

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Part VI

Department of Commerce Economic Development Administration

Economic Development Assistance Programs—Availability of Funds Under the Public Works and Economic Development Act of 1965, as Amended and the Trade Act of 1974, as Amended; Notice

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DEPARTMENT OF COMMERCE I. Funding Availability 5. Project Impact. Funding appropriated under Pub. L. 6. Project Beneficiaries. Economic Development Administration 7. Civil Rights Issues. 108–07 is available for economic 8. Funding. development assistance programs [Docket No. 991215339–3057–05] 9. Identity of Sources of Non-EDA authorized by the Public Works and Funding. Economic Development Act of 1965, as RIN 0610–ZA14 10. Title/Ownership/Operation and amended (Pub. L. 89–136, 42 U.S.C. Maintenance (Construction Projects). 3121, et seq. and as further amended by Economic Development Assistance 11. Environmental Issues. Pub. L. 105–393), and for trade Proposals for Public Works and Programs—Availability of Funds Under adjustment assistance authorized under the Public Works and Economic Economic Development Facilities title II, chapters 3 and 5 of the Trade Act assistance and Economic Adjustment Development Act of 1965, as Amended of 1974, as amended (19 U.S.C. 2341– and the Trade Act of 1974, as Amended assistance must also include Form ED– 2355; 2391) (Trade Act), and as further 900P, Exhibit A, Area Eligibility for AGENCY: Economic Development amended by Pub. L. 107–210. Funds in Grants under 13 CFR parts 305 (Public Administration (EDA), Department of the amount of $288,115,000 have been Works) and 308 (Economic Adjustment) Commerce (DOC). appropriated for FY 2003 and shall and the necessary documentation and remain available until expended. ACTION: narrative statement. Notice of Funding Availability EDA receives and processes requests (NOFA). Proposals for University Center for funding on an ongoing basis, and has funding must also include the SUMMARY: The role of government is to begun processing requests under the FY additional information set forth in part create conditions in which jobs are 2003 appropriation. New requests X. created, and in which people can find submitted that require approval during Proposals for projects on which EDA work. The Economic Development this fiscal year will face substantial is requested to fund more than 50 Administration (EDA) announces competition. EDA will focus on percent of project costs may be required general policies and application outcomes such as value-added to include Form ED–900P, Exhibit B, procedures for investments that will employment and private sector EDA Grant Rate Determination, and the help our partners across the nation investment. necessary documentation and narrative (States, regions and communities) create II. Authority statement. wealth and minimize poverty by An original and two copies must be The authority for programs listed promoting a favorable business submitted to the appropriate Economic below in parts VIII through XII is the environment to attract private capital Development Representative or regional Public Works and Economic investment and higher-skill, higher- office. Development Act of 1965, as amended wage jobs through world-class capacity Unless otherwise provided herein, (Pub. L. 89–136, 42 U.S.C. 3121, et seq.), building, planning, infrastructure, eligibility, program objectives, and as further amended by Pub. L. 105– research grants, business assistance, and application procedures, selection 393. The authority for the program strategic initiatives. EDA will fulfill this process, evaluation criteria, and other listed in part XIII is title II, chapters 3 mission by promoting progressive requirements for all programs are set and 5 of the Trade Act of 1974, as domestic business policies and growth, forth in EDA regulations at 13 CFR amended by Pub. L. 93–618, 98–120, and by assisting states, local chapter III, and applicants must address 98–369, 99–272, 99–514, 100–418, 103– governments, and community-based those requirements. The Department of 66, 105–277, and 107–210 (19 U.S.C. organizations in achieving their highest Commerce Pre-Award Notification 2341–2391) (Trade Act). economic potential. Requirements for Grants and DATES: Unless otherwise noted below, III. Eligibility Cooperative Agreements contained in the Federal Register notice of October 1, proposals are accepted on a continuing Eligible recipients of EDA financial 2001 (66 FR 49917), as amended by the basis and applications are invited and assistance are defined at 13 CFR 300.2 Federal Register notice published on processed as received. Normally, two and eligible applicants are specified at October 30, 2002 (67 FR 66109), is months are required for a final decision 13 CFR 301.1. An ‘‘area’’ is an eligible incorporated by reference into this after the receipt of a completed recipient and is defined at 13 CFR notice and is available on EDA’s Web application invited by EDA that meets 301.2. One category of the areas eligible site (www.eda.doc.gov). all requirements. for financial assistance are those areas For Public Works (13 CFR part 305) meeting the ‘‘special needs’’ criteria. ADDRESSES: Addresses for EDA’s six and Economic Adjustment Investments The special needs criteria are published regional offices and Washington, DC, (13 CFR part 308) (CFDA No. 11.300 and each year by this notice and are office are provided in part XVI. 11.307 respectively), EDA reviews area provided at part XV. Addresses for Economic Development eligibility at the time an application is Representatives (EDRs) are listed under IV. Proposal Format invited and again at the time an each regional office. Preapplication proposals must be application is received. This review is FOR FURTHER INFORMATION CONTACT: For submitted on EDA’s Preapplication for based on the most recent Federal data national technical assistance, research, Federal Assistance, Form ED–900P. This available for the area where the project and trade adjustment assistance form contains both questions and a will be located or where the substantial investments, please contact the narrative statement. The narrative direct benefits will be received. If no appropriate program office as shown in statement need not exceed four pages. Federal data is available to determine parts X, XII, and XIII, respectively. For The narrative statement must address eligibility, an applicant must submit to community and regional economic the following topics in the order listed: EDA the most recent data available for development investments, contact 1. Project Area. the area through the government of the EDA’s regional office or the EDR for 2. Project Description. State in which the area is located, i.e., your area as shown in part XVI. 3. Proponent’s Capability. conducted by or at the direction of the SUPPLEMENTARY INFORMATION: 4. Problem. State government. Other data may be

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submitted, as appropriate, to be referred to state or local agencies, or weight, which further define the criteria substantiate eligibility based on ‘‘special to non-profit economic development provided at 13 CFR 304.2: need’’ (see part XV of this notice). organizations serving the project area. 1. Extent that proposed investments Project areas must be eligible on the are market-based. VI. Evaluation and Selection Process date of receipt of the application. In the 2. Extent that proposed investments case of any application received by EDA To apply for an award under this are pro-active in nature and scope. more than six months prior to the time notice, an eligible recipient must submit 3. Extent that proposed investments of award, EDA will reevaluate the a pre-application proposal to the look beyond the immediate economic project to determine that the area appropriate Economic Development horizon, anticipate economic changes, remains eligible for EDA assistance Representative for the area or regional and diversify the local and regional before making the award. EDA will office. Each pre-application proposal is economy. reject any documentation of eligibility circulated by a project officer to the 4. Likelihood that proposed that it determines is inaccurate and the appropriate regional office staff for investments maximize the attraction of application may be rejected. review, comments, and private sector investment and would not recommendations. When the necessary otherwise come to fruition absent EDA’s V. General Policies input and information are obtained, the investment. EDA encourages only those pre-application proposal is considered 5. Likelihood that proposed investment proposals that will by the regional office Investment investments have a high probability of significantly benefit areas experiencing Review Committee (IRC) made up of success. or threatened with substantial economic regional office staff. The IRC discusses 6. Likelihood that proposed distress. Distress may exist in a variety the proposal and all pertinent investments result in an environment of forms, including, but not limited to: documentation and evaluates it using where higher-skill, higher-wage jobs are high levels of unemployment, low the general evaluation criteria set forth created. income levels, large concentrations of at 13 CFR 304.1 and 304.2 as further 7. Likelihood that proposed low-income families, significant defined by the Supplemental Evaluation investments maximize Return on declines in per capita income, Criteria set forth in this notice below, Taxpayer Investment. substantial loss of population because of and the program specific criteria the lack of employment opportunities, provided under 13 CFR 305.2 for Public Funding Priorities large numbers (or high rates) of business Works, 13 CFR 306.2 for Planning The Selecting Official considers the failures, sudden major layoffs or plant Assistance, 13 CFR 307.2 for Technical evaluations provided by the IRC and the closures, military base closures, natural Assistance, 13 CFR 307.6 for University degree to which one or more of the or other major disasters, depletion of Centers, 13 CFR 307.10 for National following funding priorities are natural resources, or reduced tax bases. Technical Assistance, Training, included (or packaged together) in Communities affected by the 1988, Research, and Evaluation, and 13 CFR making his/her decisions as to which 1991, 1993, or 1995 Base Realignment 308.2 and 308.4 for Economic preapplication proposals should be and Closure (BRAC) actions, and which Adjustment. University Center funding invited. Highly rated preapplication qualify for either regular Public Works proposals will be evaluated using the proposals may or may not be invited to or regular Economic Adjustment Special Evaluation Criteria set forth in submit full applications based on the funding, may apply for investments part X in lieu of the Supplemental following funding priorities. Generally, under one or both of those programs. Evaluation Criteria set forth below. In all proposals should enhance regional EDA anticipates that construction addition, each proposal is evaluated for competitiveness and support long-term proposals will seek funding from the consistency with the Funding Priorities development of the regional economy. regular Public Works program while set forth below. After completing its Further priority will be given to credit enhancement or other innovative evaluation, the IRC recommends proposals that: financing proposals will compete under whether or not an application should be 1. Encourage innovation and regional the regular Economic Adjustment invited, documenting its competitiveness: authority. recommendation in the meeting minutes a. Reflect coordination of strong Potential applicants are responsible or in the Investment Proposal Summary regional leadership committed to for demonstrating to EDA, by providing and Evaluation Form. The IRC action is regional cluster development; statistics and other appropriate reviewed at headquarters for quality b. Encourage a formal organization information, the nature and level of the assurance. After receiving quality structure and process for working on distress their project efforts are intended control clearance, the Selecting Official cluster development and maintaining to alleviate. EDA provides funding for (depending on the program, either the consensus; eligible investment activities through Regional Director or the Assistant c. Encourage a common vision and direct grants and cooperative Secretary) selects the applications to be collaboration among firms, universities, agreements. In funding cooperative invited. In the case of a continuation and training centers to implement a agreements, a common example of grant, no pre-application proposal is cluster strategy; substantial involvement is collaboration required. Proposals received after the d. Establish research and industrial between EDA program staff and the date of this notice will be processed in parks that encourage innovation-based recipient of a conference planning accordance with the requirements set competition; award to select a conference site, forth herein until the next annual NOFA e. Implement cluster-focused and develop the agenda, and choose is published. innovation-focused business presenters, or to review a research development efforts; and project’s methodology at critical stages Supplemental Evaluation Criteria f. Develop or implement coordinated and the draft written report. EDA will invest in applicants who are economic and workforce development EDA is not authorized to provide entrepreneurial in spirit and in action. strategies. grants directly to individuals or to other Potential investments will be analyzed 2. Upgrade core business for-profit entities seeking to start or using the following seven supplemental infrastructure such as: expand a business. Such requests may evaluation criteria of approximate equal a. Transportation infrastructure;

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b. Communications infrastructure; development, redevelopment of Background Information on EDA’s and brownfield sites, and eco-industrial University Center Program c. Specialized training program development. EDA’s University Center program infrastructure. 3. Help communities plan and IX. Program: Planning—Planning helps to make the wealth of resources— implement economic adjustment Assistance for Economic Development faculty, staff, students, computer strategies in response to sudden and Districts, Indian Tribes, States, and facilities, laboratories, etc.—at severe economic dislocations (e.g., Other Planning Organizations—(Pub. L. institutions of higher education major layoffs, plant closures, trade 89–136, as Amended by Pub. L. 105– available for assisting in local and impacts, defense restructuring, or 393, 42 U.S.C. 3143) regional economic development activities. This announcement provides disasters). (Catalog of Federal Domestic Assistance: 4. Support technology-led economic 11.302 Economic Development—Support for notice of several program and policy development, for example, proposals Planning Organizations) changes. EDA intends to make additional changes in subsequent years. that: Funds in the amount of $23,844,000 EDA will provide assistance under a. Reflect the important role of have been appropriated for the Planning this program only to University Centers research and development capacity of Program. In FY 2002, the average universities in regional development; Economic Development District engaged in economic development. and planning investment was $59,000; the Activities such as community b. Create and support technology average Indian planning investment was development or social service type transfers. $46,000; and the average state and other activities are not consistent with EDA’s 5. Advance community and faith- planning organization investment was mission and will not be considered for based social entrepreneurship in $64,000. These amounts are not funding. Programs focused on activities redevelopment strategies for areas of intended to restrict the size of future other than economic development are chronic economic distress. awards. EDA expects the majority of encouraged to seek other sources of planning funds will be used for support financial support. In addition, beginning VII. Process for Invited Applications in FY 2003, EDA will not fund any and Awards to existing Economic Development District and Indian tribe grantees. University Center that operates in If the Selecting Official declines to Continuation grants are not competed. isolation from other resources at its invite a full application, he/she Any new planning grants shall be sponsoring institution and lacks the provides written notice to the applicant. solicited and evaluated in compliance support of its sponsoring institution’s If an application has been invited by the with this notice. leadership. Selecting Official, it is reviewed by EDA Funds to establish new University program officials to determine whether X. Program: Technical Assistance— Centers will be available only if an it contains any deficiencies under EDA Local Technical Assistance; National existing University Center withdraws or regulations at 13 CFR chapter III and the Technical Assistance; and University is dropped from the program. requirements of this notice. If Centers—(Pub. L. 89–136, as amended deficiencies are noted, the applicant is by Pub. L. 105–393, 42 U.S.C. 3147) A. Additional Information Required provided a written request to amend the (Catalog of Federal Domestic Assistance: In addition to the information application to resolve any deficiencies. 11.303 Economic Development—Technical described in part IV, proposals in or If deficiencies are not resolved 30 days Assistance) after FY 2003 for University Center after receipt of the written notice, the Funds in the amount of $9,040,850 funding must include the additional application may be rejected. If the full have been appropriated for the information described in this section. application is accepted, the recipient Technical Assistance programs of which The Scope of Work for University and EDR are notified and it is forwarded approximately $1,490,250 is available Center proposals must be structured to for final reviews and processing in for the Local Technical Assistance address the University Center’s accordance with EDA and DOC program; $1,093,843 for the National contribution to the following elements: procedures. Technical Assistance program; and (a) Providing technical assistance, (b) conducting applied research, and (c) VIII. Program: Public Works and $6,456,757 for the University Center disseminating results of the activities of Economic Development Facilities program. The average funding level in the University Center. Applicants are Assistance—(Pub. L. 89–136, as FY 2002 for Local Technical Assistance expected to submit a Scope of Work amended by Pub. L. 105–393, 42 U.S.C. investments was $53,000; for National commensurate with the funding 3141) Technical Assistance investments, $134,000; and for University Center requested and consistent with EDA’s (Catalog of Federal Domestic Assistance: investments, the typical range was mission. 11.300 Grants for Public Works and $75,000 to $110,000. These amounts are Economic Development Facilities) B. Evaluation Criteria for University not intended to restrict the size of future Centers Funds in the amount of $203,667,500 awards. have been appropriated for this Multi-year funding may be available University Center funding proposals program. The average funding level for for this program. Funding for each will be analyzed using the Evaluation an investment in FY 2002 was year’s activities is contingent upon Criteria set forth below. The $1,240,000. This amount is not intended continued satisfactory performance ‘‘Supplemental Evaluation Criteria’’ set to restrict the size of future awards. during the preceding period, the forth in part VI will not apply to EDA will provide Public Works availability of program funds, and will University Center applications. EDA investments to support the construction be at EDA’s sole discretion. will invest in University Centers that are or rehabilitation of essential public A separate Federal Register notice(s) focused on economic development and infrastructure and development will set forth the specific funding are proactive and innovative in spirit facilities necessary to generate private priorities, application process, and time and in action. Potential University sector jobs and investment, including frames for certain National Technical Center proposals will be analyzed using investments that support technology-led Assistance projects. the following six special evaluation

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criteria, each of approximate equal XII. Program: Research and Department of Commerce Pre-Award weight. Evaluation—(Pub. L. 89–136, as Notification Requirements for Grants 1. Extent that the proposed University amended by Pub. L. 105–393, 42 U.S.C. and Cooperative Agreements contained Center investment addresses the 3147) in the Federal Register notice of October 1, 2001 (66 FR 49917), as economic development needs, issues (Catalog of Federal Domestic Assistance: amended by the Federal Register notice and opportunities of the proposed 11.312 Economic Development—Research published on October 30, 2002 (67 FR service area. and Evaluation Program) 66109), are applicable to this Funds in the amount of $496,750 have 2. Extent that the service and value of solicitation and can be found on EDA’s been appropriated for this program. The the proposed University Center Web site http://www.doc.gov/eda. average funding level for an investment investment is unique, or fills a void not Certain Departmental and other in FY 2002 was $105,000. This amount offered by other organizations in the requirements are noted below: is not intended to restrict the size of proposed service area that provide A. Projects are expected to be future awards. potentially complementary or duplicate Multi-year funding may be available completed in a timely manner services. for this program. Funding for each consistent with the nature of the project. 3. Extent that the proposed University year’s activities is contingent upon For Public Works and most Economic Center investment will maximize continued satisfactory performance Adjustment implementation coordination with those other entities in during the preceding period, the investments, the maximum period for which assistance will be made available ‘‘2’’ and will minimize the duplication availability of program funds, and will is generally not more than five years of the services provided by those be at EDA’s sole discretion. from the date of award. entities. A separate Federal Register notice(s) will set forth the application process, B. Notwithstanding any other 4. Likelihood that the proposed specific funding priorities, and time provision of law, no person is required University Center investment will frames for certain research and to respond to, nor shall a person be benefit economically distressed areas as evaluation investments. For further subject to a penalty for failure to comply defined in part III. information, contact: John J. McNamee, with a collection of information subject 5. Extent that the proposed University Director, Research and National to the requirements of the Paperwork Center investment will access, take Technical Assistance Division, Reduction Act (PRA) unless that advantage of, and be supported by the Economic Development Administration, collection of information displays a other resources of the sponsoring Room 7019, U.S. Department of currently valid Office of Management institutions. Commerce, Washington, DC 20230, and Budget (OMB) control number. This Telephone: (202) 482–2309. notice involves a collection of 6. Degree of evidence demonstrating information requirement subject to the the support and commitment (both XIII. Program: Trade Adjustment provisions of the PRA and has been financial and nonfinancial) of the Assistance—Title II Chapters 3 and 5 of approved by OMB under Control proposed University Center investment the Trade Act of 1974, as Amended by Number 0610–0094. The EDA from the leadership of the sponsoring Pub. L. 93–618, 98–120, 98–369, 99–272, preapplication (ED–900P) and institution for the University Center and 99–514, 100–418, 103–66, 105–277, 107– application (ED–900A), which its activities. 210; 19 U.S.C. 2341–2391 incorporates the SF–424, are the forms in the EDA application kit, approved C. Support for Existing University (Catalog of Federal Domestic Assistance: 11.313 Economic Development—Trade under the aforementioned OMB control Center Network Adjustment Assistance) number. Funds to establish new University Funds in the amount of $10,431,750 C. The implementing regulations of Centers will be available only if an have been appropriated for this the National Environmental Policy Act existing University Center withdraws or program. EDA expects these funds will (NEPA) require EDA to provide public is dropped from the program. be used to support the existing network notice of the availability of project of Trade Adjustment Assistance Centers specific environmental documents such XI. Program: Economic Adjustment (TAACs). The average funding level for as environmental impact statements, Assistance—(Pub. L. 89–136, as a TAAC in FY 2002 was $875,000. This environmental assessments, findings of Amended by Pub. L. 105–393, 42 U.S.C. amount is not intended to restrict the no significant impact, records of 3149) size of future awards. Continuation decision etc., to the affected public as grants will not be competed. No new specified in 40 CFR 1506.6(b). (Catalog of Federal Domestic Assistance: Depending on the project location, 11.307 Economic Adjustment Assistance) TAACs are expected this fiscal year. For further information on this program environmental information concerning Funds in the amount of $40,634,150 contact: Anthony J. Meyer, Coordinator, specific projects can be obtained from have been appropriated for funding Trade Adjustment and Technical the Regional Environmental Officer under the Economic Adjustment Assistance, Planning and Development (REO) in the appropriate EDA regional Assistance program. Of this amount, Assistance Division, Economic office listed in part XVI. $16,900,000 is available for economic Development Administration, Room D. If an application is selected for funding, EDA has no obligation to adjustment projects located in regions 7317, U.S. Department of Commerce, provide any additional future funding in impacted by coal industry downsizing, Washington, DC 20230, Telephone: connection with an award. Renewal of timber industry issues and Alaska (202) 482–2127. an award to increase funding or extend fishing-dependent communities. The XIV. Other Information and the period of performance is at the sole average funding level for an Economic Requirements discretion of EDA. Adjustment investment in FY 2002 was EDA regulations at 13 CFR chapter III E. EDA will notify unsuccessful $508,600. This amount is not intended are available on the EDA Web site applicants in writing and unsuccessful to restrict the size of future awards. http://www.doc.gov/eda. The applications will be maintained in the

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regional office files for not more than 200 jobs, or 1 percent of the CLF, attacks. Unless further extended by the three years from the date of receipt. whichever is less. Assistant Secretary, an area that has F. EDA is committed to a policy of B. Substantial out-migration or received one of the following disaster non-discrimination in the population loss. Applicants seeking declarations is eligible to apply for EDA administration of all its programs. eligibility under this criterion will be assistance for a period of 18 months G. EDA applications proposed for asked to present appropriate and after the date of declaration. funding are subject to the requirements compelling economic or demographic 1. A Presidential Disaster Declaration of Executive Order 12372, data to demonstrate the special need. pursuant to the Robert T. Stafford ‘‘Intergovernmental Review of Federal C. Underemployment, that is, Disaster Relief and Emergency Programs,’’ as referenced in EDA’s employment of workers at less than full Assistance Act, as amended (Pub. L. 93– regulations at 13 CFR chapter III. time or at less skilled tasks than their 288), 42 U.S.C. 5121 et seq), or H. This notice has been determined to training or abilities permit. Applicants 2. A Federally-Declared Disaster be ‘‘not significant’’ for purposes of seeking eligibility under this criterion pursuant to the Magnuson-Stevens Executive Order 12866. will be asked to present appropriate and Fishery Conservation and Management I. It has been determined that this compelling economic and demographic Act, (Pub. L. 94–265) as amended by the notice does not contain policies with data to demonstrate the special need. Sustainable Fisheries Act (Pub. L. 104– federalism implications as that term is D. Military base closures or 297), or defined in Executive Order 13132. realignments, defense contractor 3. A Federal Declaration pursuant to J. Because notice and comment are reductions-in-force, or Department of the Consolidated Farm and Rural not required under 5 U.S.C. 553, or any Energy defense-related funding Development Act, as amended (Pub. L. other law, for this notice relating to reductions. 92–419, 96–438, 97–35, 98–258, 99–198, public property, loans, grants benefits or 1. A military base closure refers to a 100–233, 100–387, and 101–624), or contracts (5 U.S.C. 553(a)), a Regulatory military base that was closed or is 4. A Federally-Declared Disaster Flexibility Analysis is not required and scheduled for closure or realignment pursuant to the Small Business Act, as has not been prepared for this notice, 5 pursuant to a Base Realignment and amended (Pub. L. 85–536). U.S.C. 601 et seq. Closure Act (BRAC) process or other F. Extraordinary depletion of natural Department of Defense (DoD) process. resources. EDA presently recognizes the XV. Special Need Criteria Unless further extended by the Assistant following conditions of extraordinary These criteria are published in Secretary for Economic Development, natural resource depletion: accordance with 13 CFR 301.2(h) and the area is eligible from the date of 1. Fisheries. define what constitutes a special need Defense Department recommendation 2. Coal. sufficient to make an area eligible for for closure until five years after the 3. Timber. Public Works and Economic actual date of closing of the installation. Modifications to the above listing of Development Facilities assistance and 2. A defense contractor reduction-in- conditions of extraordinary natural Economic Adjustment assistance as force refers to a defense contractor(s) resource depletion, as they may occur, described in part III above. An area is experiencing defense contract will be announced in subsequent public eligible pursuant to ‘‘Special Need’’ (13 cancellations or reductions resulting notices. CFR 301.2(b)(3)), if the area meets one from official DoD announcements and G. Communities undergoing transition of the criteria described below: having aggregate value of at least $10 of their economic base as a result of A. Closure or restructuring of million per year. Actual dislocations changing trade patterns. An area industrial firms essential to area must have occurred within one year of certified as eligible by the North economies. An area has experienced application to EDA and threatened American Development Bank either: (1) An actual closure or dislocations must be anticipated to (NADBank) Program or the Community restructuring of a firm(s), within the occur within two years of application to Adjustment and Investment Program past twelve months, resulting in sudden EDA. Defense contracts that expire in (CAIP). job losses and meeting the following the normal course of business will not H. Other special need. The area is dislocation criteria; or (2) a threat that be considered in meeting this criterion. experiencing other special and/or results from a public announcement of 3. A Department of Energy defense- extraordinary economic adjustment an impending closure or restructuring of related funding reduction refers to a needs as determined by the Assistant a firm(s), expected to occur within two Department of Energy facility that has Secretary. years of preapplication, and result in experienced or will experience a The applicant will be asked to present sudden job losses meeting the following reduction of employment resulting from appropriate economic or demographic dislocation criteria: its defense mission change. The area is statistics to demonstrate a special need. 1. For areas over 100,000 population, eligible from the date of the Department the actual or threatened dislocation is of Energy announcement of reductions XVI. EDA Regional Offices and 500 jobs, or 1 percent of the civilian until five years after the actual date of Economic Development Representatives labor force (CLF), whichever is less. reduced operations at the installation. EDA regional offices and the 2. For areas up to 100,000 population, E. Natural or other major disasters or Economic Development Representatives the actual or threatened dislocation is emergencies, including terrorists and the areas served are listed below:

William J. Day, Jr., Regional Director, Atlanta Regional Office, 401 West Peachtree Street, NW., Suite 1820, Atlanta, Georgia 30308–3510, Telephone: (404) 730–3002, Fax: (404) 730–3025, Internet Address: [email protected]

Economic development representatives or regional office contacts States covered

PATTERSON, Gilbert ...... Mississippi. 401 West Peachtree Street, NW. Suite 1820

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Economic development representatives or regional office contacts States covered

Atlanta, GA 30308–3510 Telephone: (404) 730–3000 Internet Address: [email protected] SMITH, Lola B ...... Georgia. 401 West Peachtree Street, NW. Suite 1820 Atlanta, GA 30308–3510 Telephone: (404) 730–3013 Internet Address: [email protected] HUNTER, Bobby D ...... Kentucky. 771 Corporate Drive, Suite 200 North Carolina (Western). Lexington, KY 40503–5477 Telephone: (859) 224–7426 Internet Address: [email protected] DIXON, Patricia M ...... South Carolina. U.S. Department of Commerce—EDA North Carolina (Easter). P.O. Box 1707 Lugoff, SC 29078 Telephone: (803) 408–2513 Internet Address: [email protected] DENNIS, Bobby ...... Alabama. 401 West Peachtree Street, NW. Suite 1820 Atlanta, GA 30308–3510 Telephone: (404) 730–3020 Internet Address: [email protected] TAYLOR, Willie C ...... Florida. 401 West Peachtree Street, NW. Suite 1820 Atlanta, GA 30308–3510 Telephone: (404) 730–3032 Internet Address: [email protected] REED, Tonia ...... Tennessee. 401 West Peachtree Street, NW. Suite 1820 Atlanta, Georgia 30308–3510 Telephone: (404) 730–3026 Internet Address: [email protected]

Pedro R. Garza, Regional Director, Austin Regional Office, 327 Congress Avenue, Suite 200, Austin, Texas 78701–4037, Telephone: (512) 381–8144, Fax: (512) 381–8177, Internet Address: [email protected]

Area directors States covered

CULBERTSON, David W ...... Arkansas. Austin Regional Office New Mexico. 327 Congress Avenue, Suite 200 Oklahoma. Austin, Texas 78701–4037 Texas (North). Telephone: (512) 381–8160 Internet Address: [email protected] FRERKING, Sharon T ...... Louisiana. Austin Regional Office Texas (South). 327 Congress Avenue, Suite 200 Austin, Texas 78701–4037 Telephone: (512) 381–8176 Internet Address: [email protected]

Economic development representative States covered

DAVIDSON-EHLERS, Pamela ...... Louisiana. 501 Magazine Street, Room 1025 Texas (South). New Orleans, LA 70130 Telephone: (504) 589–4179 Internet Address: [email protected]

C. Robert Sawyer, Regional Director, Chicago Regional Office, 111 North Canal Street, Suite 855, Chicago, IL 60606, Telephone: (312) 353–7706, Fax: (312) 353–8575, Internet Address: [email protected]

Economic development representatives States covered

ARNOLD, John B. III ...... Illinois. 104 Federal Building Minnesota. 515 West First Street

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Economic development representatives States covered

Duluth, MN 55802 Telephone: (888) 865–5719 (Illinois), (218) 720–5326 (Minnesota) Internet Address: [email protected] HICKEY, Robert F ...... Ohio. Federal Building, Room 740 Indiana. 200 North High Street Columbus, Ohio 43215 Telephone: (800) 686–2603 (Indiana), (614) 469–7314 (Ohio) Internet Address: [email protected] PECK, John E ...... Michigan. P.O. Box 517 Wisconsin. Acme, Michigan 49610–0517 Telephone: (231) 938–1712 Internet Address: [email protected]

Anthony J. Preite, Regional Director, Denver Regional Office, 1244 Speer Boulevard, Room 670, Denver, Colorado 80204, Telephone: (303) 844–4715, Fax: (303) 844–3968, Internet Address: [email protected]

Economic development representatives States covered

ZENDER, John P ...... Colorado. 1244 Speer Boulevard, Room 632 Utah. Denver, CO 80204 Telephone: (303) 844–4902 Internet Address: [email protected] CECIL, Robert ...... Iowa. Federal Building, Room 823 Nebraska. 2l0 Walnut Street Des Moines, IA 50309 Telephone: (515) 284–4746 Internet Address: [email protected] HILDEBRANDT, Paul ...... Missouri. Federal Building, Room B–2 Kansas. 608 East Cherry Street Columbia, MO 65201 Telephone: (573) 442–8084 Internet Address: [email protected] ROGERS, John C ...... Montana. P.O. Box 578 Wyoming Helena, MT 59624 Telephone: (406) 449–5380 Internet Address: [email protected] JUNGBERG, Cip ...... South Dakota. Post Office/Courthouse North Dakota. 102 4th Avenue, SE., Room 216 P.O. Box 190 Aberdeen, South Dakota 57401 Telephone: (605) 226–7315 Internet Address: [email protected]

Paul M. Raetsch, Regional Director, Philadelphia Regional Office, Curtis Center, 601 Walnut Street, Suite 140 South, Philadelphia, PA 19106, Telephone: (215) 597–4603, Fax: (215) 597–1063, Internet Address: [email protected]

Economic development representatives or regional office contacts States covered

BEACH, Tyrone ...... Maine. Philadelphia Regional Office Rhode Island. The Curtis Center-Suite 140 South 601 Walnut Street Philadelphia, PA 19106 Telephone: (215) 597–7883 Internet Address: [email protected] POTTER, Rita V ...... New Hampshire. 143 North Main Street, Suite 209 Massachusetts. Concord, NH 03301–5089 Telephone: (603) 225–1624 Internet Address: [email protected] HUMMEL, Edward L ...... New Jersey. Philadelphia Regional Office New York City/Long Island. The Curtis Center-Suite 140 South 601 Walnut Street Philadelphia, PA 19106 Telephone: (215) 597–6767

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Economic development representatives or regional office contacts States covered

Internet Address: [email protected] MARSHALL, Harold J ...... New York. 620 Erie Boulevard West, Suite 104 Vermont. Syracuse, NY 13204–2442 Telephone: (315) 448–0938 Internet Address: [email protected] PECONE, Anthony M ...... Pennsylvania. 523 North Broad Street Connecticut. West Hazleton, PA 18202–1107 Telephone: (570) 459–6861 Internet Address: [email protected] MCGINLEY, Marguerite ...... Puerto Rico. Philadelphia Regional Office Virgin Islands. The Curtis Center-Suite 140 South 601 Walnut Street Philadelphia, PA 19106 Telephone: (215) 597–8822 Internet Address: [email protected] NOYES, Neal E ...... Virginia. Federal Building, Delaware. Room 474 District of Columbia. 400 North 8th Street P.O. Box 10229 Maryland. Richmond, VA 23240–1001 Telephone: (804) 771–2061 Internet Address: [email protected] DAVIS, R. Byron ...... West Virginia. 405 Capital Street, Room 411 Charleston, WV 25301–1727 Telephone: (304) 347–5252 Internet Address: [email protected]

A. Leonard Smith, Regional Director, Seattle Regional Office, Jackson Federal Building, Room 1890, 915 Second Avenue, Seattle, Washington 98174, Telephone: (206) 220–7660, Fax: (206) 220–7669, Internet Address: [email protected].

Economic development representatives or regional office contacts States covered

RICHERT, Bernhard E. Jr ...... Alaska. 550 West 7th Avenue, Suite 1780 Anchorage, AK 99501–7594 Telephone: (907) 271–2272 Internet Address: [email protected] SOSSON, Deena R ...... California (Central). 801 I Street, Suite 411 Sacramento, CA 95814 Telephone: (916) 498–5285 Internet Address: [email protected] CHURCH, Dianne V ...... California (Central Coastal). 280 South First Street, #135–B San Jose, CA 95113 Telephone: (408) 535–5550 Internet Address: [email protected] FUJITA, Gail S ...... Hawaii, Guam, Federal Building, Room 5180 American Samoa, 300 Ala Moana Boulevard Marshall Islands, P.O. Box 50264 Micronesia, Honolulu, HI 96850 Northern Marianas Telephone: (808) 541–3391 Republic of Palau. Internet Address: [email protected] NAYLOR, Thomas (Acting) ...... Idaho. Seattle Regional Office Jackson Federal Building 915 Second Avenue, Room 1890 Seattle, WA 98174 Telephone: (206) 220–7688 (888) 693–1370 Internet Address: [email protected] BERBLINGER, Anne S ...... Oregon. One World Trade Center California (Northern). 121 S.W. Salmon Street, Suite 244 Portland, OR 97204 Telephone: (503) 326–3078 Internet Address: [email protected] MARSHALL, Wilfred ...... California (Southern).

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Economic development representatives or regional office contacts States covered

5777 West Century Boulevard Suite 1675 Los Angeles, CA 90045 Telephone: (310) 348–5386 Internet Address: [email protected] KIRRY, Lloyd P ...... Washington. Seattle Regional Office Jackson Federal Building 915 Second Avenue, Room 1890 Seattle, WA 98174 Telephone: (206) 220–7682 Internet Address: [email protected] MACIAS, Jacob (Acting for Nevada) ...... Arizona. Seattle Regional Office Nevada. Jackson Federal Building 915 Second Avenue, Room 1890 Seattle, WA 98174 Telephone: (206) 220–7666 Internet Address: [email protected]

For general information on EDA Development Administration, Room Dated: April 3, 2003. contact the appropriate Regional Office 7814A, U.S. Department of Commerce, David A. Sampson, listed above or EDA’s Office of Washington, DC 20230, Telephone: Assistant Secretary for Economic Congressional Liaison, Program (202) 482–2309, EDA Web site http:// Development. Research and Evaluation: Economic www.doc.gov/eda. [FR Doc. 03–8612 Filed 4–8–03; 8:45 am] BILLING CODE 3510–24–P

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Reader Aids Federal Register Vol. 68, No. 68 Wednesday, April 9, 2003

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING APRIL

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. 98...... 16922 Presidential Documents 3 CFR 130...... 16922 Proclamations: Executive orders and proclamations 741–6000 Proposed Rules: 7657...... 15921 The United States Government Manual 741–6000 77...... 16733 7658...... 16403 105...... 17327 Other Services 7659...... 17253 115...... 17327 Electronic and on-line services (voice) 741–6020 Executive Orders: Privacy Act Compilation 741–6064 10448 (Amended by 10 CFR Public Laws Update Service (numbers, dates, etc.) 741–6043 13293) ...... 15917 Proposed Rules: TTY for the deaf-and-hard-of-hearing 741–6086 11157 (Revoked by 170...... 16374 13294) ...... 15919 171...... 16374 11800 (Revoked by ELECTRONIC RESEARCH 13294) ...... 15919 11 CFR 12452 (Revoked by World Wide Web 110...... 16715 13295) ...... 17255 Full text of the daily Federal Register, CFR and other publications 13293...... 15917 12 CFR is located at: http://www.access.gpo.gov/nara 13294...... 15919 Federal Register information and research tools, including Public 13295...... 17255 226...... 16185 1730...... 16715 Inspection List, indexes, and links to GPO Access are located at: Administrative Orders: http://www.archives.gov/federallregister/ Presidential Proposed Rules: 702...... 16450 E-mail Determinations: No. 2003–18 of March 704...... 16450 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 24, 2003 ...... 16165 712...... 16450 an open e-mail service that provides subscribers with a digital No. 2003–19 of March 723...... 16450 form of the Federal Register Table of Contents. The digital form 24, 2003 ...... 16167 13 CFR of the Federal Register Table of Contents includes HTML and PDF links to the full text of each document. 5 CFR Proposed Rules: 121...... 15971 To join or leave, go to http://listserv.access.gpo.gov and select 5201...... 16398 Online mailing list archives, FEDREGTOC-L, Join or leave the list Proposed Rules: 14 CFR (or change settings); then follow the instructions. 870...... 17315 1600...... 16449 1...... 16943 PENS (Public Law Electronic Notification Service) is an e-mail 1605...... 16449 121...... 17514 service that notifies subscribers of recently enacted laws. 1606...... 16449 39 ...... 15653, 15937, 16190, To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 1655...... 16449 16192, 16195, 16198, 16200, and select Join or leave the list (or change settings); then follow 16203, 16205, 16948 the instructions. 7 CFR 71 ...... 16207, 16351, 16409, 16410, 16943, 16950, 16951, FEDREGTOC-L and PENS are mailing lists only. We cannot 25...... 16169 16952, 17153 respond to specific inquiries. 718...... 16170 723...... 16170 95...... 16943 Reference questions. Send questions and comments about the 916...... 17257 93...... 15657 Federal Register system to: [email protected] 917...... 17257 97 ...... 16411, 16412, 16943 The Federal Register staff cannot interpret specific documents or 923...... 15923 121...... 15884 regulations. 989...... 15926 125...... 15884 993...... 17267 129...... 15884 FEDERAL REGISTER PAGES AND DATE, APRIL 1412...... 16170 Proposed Rules: 1413...... 16170 1...... 16992 15653–15920...... 1 1465...... 17272 21...... 16217 15921–16164...... 2 1940...... 17153 25...... 16458 39 ...... 15682, 15684, 15687, 16165–16402...... 3 Proposed Rules: 16220, 16222, 16225, 16458, 16403–16714...... 4 762...... 17316 772...... 17320 16735, 16736 16715–16942...... 7 930...... 15971 71 ...... 16227, 16229, 16230, 16943–17252...... 8 956...... 17325 16992 17253–17528...... 9 1901...... 17320 91...... 16992 1941...... 17316 95...... 16992 1943...... 17316 97...... 16992 1951...... 17316, 17320 121...... 16992 125...... 16992 9 CFR 129...... 16992 71...... 16922 135...... 16992 92...... 16922 93...... 16922 15 CFR 94...... 15932, 16922 740...... 16144, 16208

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742...... 16144, 16208 29 CFR 46...... 16708 76...... 17312 762...... 16208 70...... 16398 52 ...... 15661, 15664, 16721, 78...... 16962 774...... 16144, 16208 71...... 16398 16724, 16726, 16959 101...... 16962 Proposed Rules: 96...... 16162 61...... 16726 Proposed Rules: 911...... 16993 99...... 16162 82...... 16728, 16729 64...... 16250 2509...... 16399 180 ...... 15945, 15958, 15963, 16 CFR 73...... 16750, 16968 2510...... 16399, 17472 16436, 17307 Proposed Rules: 2520...... 16399, 17494 271...... 17308 305...... 16231 2550...... 16399 Proposed Rules: 48 CFR 310...... 16238, 16414 2560...... 16399, 17503 Ch. 1 ...... 16747 1847...... 16969 2570 ...... 16399, 17484, 17506 52 ...... 15696, 16644, 16748, 1852...... 16969 17 CFR 2575...... 16399 17002, 17331 Proposed Rules: 228...... 15939 2582...... 16399 82...... 16749 2...... 16366 229...... 15939 2584...... 16399 261...... 17234 244...... 15939 2589...... 16399 271...... 17332 4...... 16366 249...... 15939 2590...... 16399 13...... 16366 41 CFR 32...... 16366 Proposed Rules: 30 CFR 240...... 15688 Ch. 101 ...... 16730 52...... 16366 Proposed Rules: 20 CFR 70...... 15691 42 CFR 49 CFR 404...... 15658 72...... 15691 422...... 16652 408...... 16415 75...... 15691 489...... 16652 1...... 16215 90...... 15691 Proposed Rules: Ch. 4 ...... 16953 21 CFR 533...... 16868 31 CFR 440...... 15973 172...... 17277 665...... 15672 1308...... 16427 800...... 16720 43 CFR 1109...... 17312 Proposed Rules: 32 CFR 10...... 16354 1111...... 17312 1...... 16998 423...... 16214 1114...... 17312 Proposed Rules: 10...... 16461 Proposed Rules: 199...... 16247 44 CFR 24 CFR 312...... 16249 172...... 16751 806b...... 16746 Ch.1 ...... 15666 173...... 16751 Proposed Rules: 61...... 15666 174...... 16751 202...... 15906 33 CFR 64...... 15967 175...... 16751 902...... 16461 Ch. 1 ...... 16953 176...... 16751 1000...... 17000 45 CFR 117 ...... 15943, 16721, 16953 177...... 16751 164...... 17153 26 CFR 165...... 16955, 17291 178...... 16751 Proposed Rules: 2506...... 16437 1 ...... 15940, 16430, 17002, 266...... 16753 110...... 15691 46 CFR 17277 165...... 15694 40...... 15940 Ch. 1 ...... 16953 50 CFR 48...... 15940 36 CFR Ch. 3 ...... 16953 17 ...... 15804, 16970, 17156, 49...... 15940 7...... 16432, 17292 Proposed Rules: 17428, 17430 54...... 17277 401...... 15697 224...... 15674 301...... 16351 37 CFR 530...... 15978 230...... 15680 602 ...... 15940, 15942, 17277 540...... 17003 201...... 16958 635...... 16216 Proposed Rules: Proposed Rules: 47 CFR 648...... 16731 1...... 15801, 16462 201...... 15972 49...... 15690 2...... 16962 679 ...... 15969, 16990, 17314 38 CFR 21...... 16962 697...... 16732 28 CFR 1...... 15659 25...... 16446, 16962 Proposed Rules: 2...... 16718 54...... 15669 17 ...... 15876, 15879, 16602 Proposed Rules: 40 CFR 73...... 16730, 16968 600 ...... 17004, 17005, 17333 2...... 16743 9...... 16708 74...... 16962 660...... 16754

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REMINDERS Classification services to Clean Water Act— consolidation and fee The items in this list were growers; 2003 user fees; Waters of United States; reduction; comments due editorially compiled as an aid comments due by 4-15- definition; comments by 4-17-03; published 3- to Federal Register users. 03; published 3-31-03 [FR due by 4-16-03; 18-03 [FR 03-06458] Inclusion or exclusion from 03-07631] published 2-28-03 [FR HEALTH AND HUMAN this list has no legal Cotton research and 03-04768] SERVICES DEPARTMENT significance. promotion order: ENVIRONMENTAL Food and Drug Cotton Board rules and PROTECTION AGENCY Administration regulations; amendments; Air programs; approval and Human drugs: RULES GOING INTO comments due by 4-14- promulgation; State plans Vaginal contraceptive EFFECT APRIL 9, 2003 03; published 3-14-03 [FR for designated facilities and 03-06164] products (OTC) containing pollutants: nonoxynol 9; labeling ENVIRONMENTAL AGRICULTURE New York; comments due requirements; comments PROTECTION AGENCY DEPARTMENT by 4-14-03; published 3- due by 4-16-03; published Air programs: Animal and Plant Health 13-03 [FR 03-05908] 1-16-03 [FR 03-00902] Inspection Service Clean Air Act; alternate Air quality implementation HOMELAND SECURITY permit program Interstate transportation of plans; approval and DEPARTMENT approvals— animals and animal products promulgation; various Coast Guard Guam; published 1-9-03 (quarantine): States: Drawbridge operations: Exotic Newcastle disease; FEDERAL Kentucky; comments due by Virginia; comments due by COMMUNICATIONS quarantine area 4-18-03; published 3-19- designations— 4-14-03; published 2-12- COMMISSION 03 [FR 03-06584] 03 [FR 03-03458] Television broadcasting: Arizona; comments due Missouri; comments due by by 4-15-03; published Ports and waterways safety: Cable television systems- - 4-17-03; published 3-18- 2-14-03 [FR 03-03685] Columbia River, Vancouver, Markets definition for 03 [FR 03-06311] COMMERCE DEPARTMENT WA; safety zone; purposes of broadcast Hazardous waste program comments due by 4-15- National Oceanic and signal carriage rules; authorizations: 03; published 2-14-03 [FR Atmospheric Administration published 4-9-03 Virginia; comments due by 03-03605] Fishery conservation and HOMELAND SECURITY 4-14-03; published 3-13- San Diego Bay, CA; management: DEPARTMENT 03 [FR 03-06110] security zones; comments Coast Guard Magnuson-Stevens Act Pesticides; tolerances in food, due by 4-14-03; published provisions— Ports and waterways safety: animal feeds, and raw 2-11-03 [FR 03-03263] National standard agricultural commodities: Tampa Bay et al., FL; Tampa Bay Captain of Port guidelines; revision; security zones Methoprene, etc.; comments Zone, FL; security zones; comments due by 4-16- due by 4-14-03; published Correction; published 4-9- comments due by 4-14- 03; published 3-3-03 2-12-03 [FR 03-03236] 03 03; published 2-12-03 [FR [FR 03-04886] Water pollution control: 03-03460] INTERIOR DEPARTMENT COMMODITY FUTURES Clean Water Act— HOMELAND SECURITY National Park Service TRADING COMMISSION Waters of United States; DEPARTMENT Special regulations: Commodity pool operators and definition; comments Federal Emergency Lake Mead National commodity trading advisors: due by 4-16-03; Management Agency Recreation Area, NV and Commodity trading advisors; published 2-28-03 [FR Disaster assistance: AZ; personal watercraft performance data and 03-04768] use; published 4-9-03 disclosure; comments due Federal assistance to FEDERAL individuals and TRANSPORTATION by 4-14-03; published 3- COMMUNICATIONS households; comments DEPARTMENT 13-03 [FR 03-06081] COMMISSION due by 4-15-03; published Federal Aviation DEFENSE DEPARTMENT Common carrier services: 9-30-02 [FR 02-24733] Administration Federal Acquisition Regulation Federal-State Joint Board National Flood Insurance Air carrier certification and (FAR): on Universal Service— Program: operations: Cost-reimbursement Universal services; Group flood insurance Flightcrew compartment contracts; payment bonds; definition; comments policy; comments due by access and door designs; comments due by 4-15- due by 4-14-03; 4-15-03; published 9-30- published 4-9-03 03; published 2-14-03 [FR published 3-13-03 [FR 02 [FR 02-24734] 03-03575] TREASURY DEPARTMENT 03-06092] INTERIOR DEPARTMENT Fish, shellfish, and seafood Internal Revenue Service Radio frequency devices: products; comments due Fish and Wildlife Service Excise taxes: by 4-15-03; published 2- Advanced wireless service; Endangered and threatened Pension excise taxes; future 14-03 [FR 03-03574] comments due by 4-14- species: benefit accrual rate; Security-guard functions; 03; published 3-13-03 [FR Canada lynx; contiguous significant reduction; contractor performance; 03-06038] U.S. distinct population published 4-9-03 comments due by 4-15- Television broadcasting: segment; comments due 03; published 2-14-03 [FR Digital television conversion; by 4-16-03; published 3- COMMENTS DUE NEXT 03-03577] transition issues; 17-03 [FR 03-06291] WEEK Vessel repair and alteration comments due by 4-14- INTERIOR DEPARTMENT contracts; loss liability; 03; published 2-18-03 [FR Minerals Management AGRICULTURE comments due by 4-15- 03-03812] Service DEPARTMENT 03; published 2-14-03 [FR GENERAL SERVICES Royalty management: 03-03576] ADMINISTRATION Agricultural Marketing Federal geothermal Service DEFENSE DEPARTMENT Acquisition regulations: resources; discussions for Cotton classing, testing, and Engineers Corps Industrial funding fee and developing consensus on standards: Water pollution control: sales reporting clauses; royalty valuation

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approaches; comments Reduced vertical separation Adaptive frontal-lighting Register but may be ordered due by 4-16-03; published minimum in domestic U.S. systems; comments due in ‘‘slip law’’ (individual 3-17-03 [FR 03-06254] airspace; comments due by 4-14-03; published pamphlet) form from the Oil value for royalties due by 4-14-03; published 2- 2-12-03 [FR 03-03505] Superintendent of Documents, on Indian leases; 28-03 [FR 03-04765] TRANSPORTATION U.S. Government Printing establishment; comments Airworthiness directives: DEPARTMENT Office, Washington, DC 20402 due by 4-14-03; published BAE Systems (Operations) Saint Lawrence Seaway (phone, 202–512–1808). The 2-12-03 [FR 03-03466] Ltd.; comments due by 4- Development Corporation text will also be made available on the Internet from PENSION BENEFIT 16-03; published 3-17-03 Seaway regulations and rules: GPO Access at http:// GUARANTY CORPORATION [FR 03-06260] Tariff of tolls; comments due Boeing; comments due by www.access.gpo.gov/nara/ Government Paperwork by 4-16-03; published 3- 4-17-03; published 3-3-03 nara005.html. Some laws may Elimination Act; 17-03 [FR 03-06347] [FR 03-04842] not yet be available. implementation: TREASURY DEPARTMENT Dassault; comments due by Electronic transactions; Disclosure of records: 4-17-03; published 3-18- H.R. 395/P.L. 108–10 removal of regulatory Legal proceedings; access 03 [FR 03-06261] to information and impedments to filings, Empresa Basileira de Do-Not-Call Implementation issuances, computation of records; clarification; Aeronautica S.A. comments due by 4-16- Act (Mar. 11, 2003; 117 Stat. time, and electronic (EMBRAER); comments 557) record retention; 03; published 3-17-03 [FR due by 4-16-03; published 03-06247] comments due by 4-15- 3-17-03 [FR 03-06259] Last List March 10, 2003 03; published 2-14-03 [FR VETERANS AFFAIRS Eurocopter France; DEPARTMENT 03-03081] comments due by 4-15- Disabilities rating schedule: SECURITIES AND 03; published 2-14-03 [FR Musculoskeletal system; EXCHANGE COMMISSION 03-03774] comments due by 4-14- Public Laws Electronic McDonnell Douglas; Investment advisers and 03; published 2-11-03 [FR Notification Service comments due by 4-14- investment companies: 03-02119] (PENS) Compliance programs; 03; published 2-27-03 [FR comments due by 4-18- 03-04587] 03; published 2-11-03 [FR Turbomeca S.A.; comments LIST OF PUBLIC LAWS 03-03315] due by 4-14-03; published PENS is a free electronic mail 2-12-03 [FR 03-03473] This is a continuing list of TRANSPORTATION notification service of newly Class E airspace; comments public bills from the current DEPARTMENT enacted public laws. To due by 4-16-03; published session of Congress which subscribe, go to http:// Federal Aviation 3-17-03 [FR 03-06334] have become Federal laws. It listserv.gsa.gov/archives/ Administration TRANSPORTATION may be used in conjunction publaws-l.html Air carrier certification and DEPARTMENT with ‘‘PLUS’’ (Public Laws Update Service) on 202–741– operations: National Highway Traffic Note: This service is strictly 6043. This list is also Transponder continuous Safety Administration for E-mail notification of new available online at http:// operation; comments due Motor vehicle safety laws. The text of laws is not www.nara.gov/fedreg/ by 4-18-03; published 3- standards: available through this service. plawcurr.html. 18-03 [FR 03-06511] Lamps, reflective devices, PENS cannot respond to Air traffic operating and flight and associated The text of laws is not specific inquiries sent to this rules, etc.: equipment— published in the Federal address.

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