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1 II Federal Register / Vol. 68, No. 99 / Thursday, May 22, 2003
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2 III
Contents Federal Register Vol. 68, No. 99
Thursday, May 22, 2003
Agricultural Marketing Service Committee for the Implementation of Textile Agreements RULES NOTICES Cotton classing, testing, and standards: Textile and apparel categories: Classification services to growers; 2003 user fees, 27897– Andean Trade Promotion and Drug Eradication Act; short 27898 supply requests— Cotton research and promotion order: Cotton corduroy fabrics, 27992–27993 Cotton Board Rules and Regulations; amendments, 27898–27903 Defense Department PROPOSED RULES RULES Cherries (tart) grown in— Federal Acquisition Regulation (FAR): Michigan et al., 27943–27946 Commercial items contract terms and conditions required Organic Foods Production Act: to implement statute or Executive orders, 28095– National Organic Program; National List of Allowed and 28098 Prohibited Substances; amendments, 27941–27943 Cost-reimbursement contracts for services; prompt payment, 28091–28093 Agriculture Department Electronic signatures, 28092–28094 See Agricultural Marketing Service Federal Prison Industries contracts; past performance See Grain Inspection, Packers and Stockyards evaluation, 28094–28096 Administration Federal Prison Industries, Inc.; increased waiver See Rural Utilities Service threshold, 28093–28095 Introduction, 28077–28079 Miscellaneous cost principles, 28090–28092 Centers for Disease Control and Prevention Small entity compliance guide, 28097–28100 NOTICES Technical amendments, 28097–28098 Meetings: United States; geographic use of term, 28078–28090 Disease, Disability, and Injury Prevention and Control Wendell H. Ford Aviation Investment and Reform Act for Special Emphasis Panels; correction, 28008 21st Century; implementation: Public Health Service Activities and Research at DOE Excess DOD aircraft sales to persons or entities providing Sites Citizens Advisory Committee, 28008–28009 oil spill response services, 27904–27907 PROPOSED RULES Centers for Medicare & Medicaid Services Federal Acquisition Regulation (FAR): NOTICES Unallowable costs accounting and application of cost Agency information collection activities; proposals, principles and procedures, 28107–28109 submissions, and approvals, 28009–28010 Employee Benefits Security Administration Children and Families Administration NOTICES NOTICES Employee benefit plans; individual exemptions: Adoption and Foster Care Analysis and Reporting System; Metropolitan Life Insurance Co. et al., 28031–28033 improvement; correction, 28010 Employee benefit plans; prohibited transaction exemptions: Deutsche Bank AG et al., 28018–28030 Coast Guard Travelers Group, Inc., 28033 RULES Energy Department Ports and waterways safety: See Federal Energy Regulatory Commission Vessels arriving in or departing from U.S. ports; NOTICES notification requirements Grants and cooperative agreements; availability, etc.: Partial suspension, 27907–27908 Million Solar Roofs Initiative; State and Local PROPOSED RULES Partnerships, 27993–27994 Navigation aids: Technical information affecting buoys, sound signals, Environmental Protection Agency international rules at sea, communications RULES procedures, and large navigational buoys; revision Air pollutants, hazardous; national emission standards: Correction, 28052 Semiconductor manufacturing operations, 27913–27931 Ports and waterways safety: Air programs; approval and promulgation; State plans for Hampton Roads, VA; regulated navigation area, 27948– designated facilities and pollutants: 27953 Vermont, 27911–27913 Air quality implementation plans; approval and Commerce Department promulgation; various States: See Foreign-Trade Zones Board Montana, 27908–27911 See International Trade Administration Superfund program: See National Institute of Standards and Technology National oil and hazardous substances contingency See National Oceanic and Atmospheric Administration plan— See Technology Administration National priorities list update, 27931–27936
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PROPOSED RULES Plantation Pipe Line Co. et al., 27996 Air programs; approval and promulgation; State plans for Portland Natural Gas Transmission System, 27996–27997 designated facilities and pollutants: Tennessee Gas Pipeline Co., 27997 Vermont, 27953–27954 Superfund program: Federal Maritime Commission National oil and hazardous substances contingency NOTICES plan— Meetings; Sunshine Act, 28007 National priorities list update, 27954–27955 NOTICES Federal Railroad Administration Agency information collection activities; proposals, NOTICES submissions, and approvals, 28002–28003 Environmental statements; notice of intent: Meetings: Southeast High Speed Rail Corridor, VA and NC, 28044– Clean Air Act Advisory Committee, 28003–28004 28045 Gulf of Mexico Program Citizens Advisory Committee, 28003 Federal Reserve System Toxic and hazardous substances control: NOTICES New chemicals— Banks and bank holding companies: Test marketing exemption approvals, 28004–28006 Formations, acquisitions, and mergers, 28007 Permissible nonbanking activities, 28007 Federal Aviation Administration Fish and Wildlife Service PROPOSED RULES Class E5 airspace, 27946–27947 RULES NOTICES Endangered and threatened species: Environmental statements; notice of intent: Critical habitat designations— Midwest Airspace Plan, 28042–28043 Plant species from Northwestern Hawaiian Islands, HI, Passenger facility charges; applications, etc.: 28053–28075 Helena Regional Airport, MT, 28044 PROPOSED RULES Endangered and threatened species: Federal Bureau of Investigation Findings on petitions, etc.— Johnston’s frankenia; delisting, 27961–27969 NOTICES Agency information collection activities; proposals, Food and Drug Administration submissions, and approvals, 28017 RULES Animal drugs, feeds, and related products: Federal Communications Commission Biuret, feed-grade, 27904 RULES NOTICES Radio stations; table of assignments: Food additive petitions: Arkansas and Louisiana, 27940 Arkion Life Sciences, 28010 Oregon, 27939–27940 PROPOSED RULES Foreign-Trade Zones Board Radio stations; table of assignments: NOTICES California, 27960 Applications, hearings, determinations, etc.: Kentucky, 27961 California, 27985 Florida Federal Election Commission Federal Mogul Corp.; plant subzone termination, 27985 NOTICES Hawaii Special elections; filing dates: Dole Packaged Foods Co; plant subzone termination, Texas, 28006–28007 27985 Michigan Federal Energy Regulatory Commission Perrigo Co.; pharmaceutical manufacturing and NOTICES distribution facilities, 27985–27986 Electric rate and corporate regulation filings: New York Calpine California Equipment Finance Co., LLC, et al., Bulova Corp.; watch and clock warehousing/ 27999–28000 distribution/repair facilities, 27986 Empire District Electric Co. et al., 27997–27999 Texas, 27987 Environmental statements; availability, etc.: Pacific Gas & Electric Co., 28000 General Services Administration Hydroelectric applications, 28000–28001 RULES Reports and guidance documents; availability, etc.: Federal Acquisition Regulation (FAR): Electric Quarterly Reports; public utility filing Commercial items contract terms and conditions required requirements and software demonstrations, 28001– to implement statute or Executive orders, 28095– 28002 28098 Applications, hearings, determinations, etc.: Cost-reimbursement contracts for services; prompt American Electric Power Service Corp. et al., 27994 payment, 28091–28093 ANR Pipeline Co., 27994–27995 Electronic signatures, 28092–28094 CenterPoint Energy Gas Transmission Co., 27994 Federal Prison Industries contracts; past performance Columbia Gas Transmission Corp., 27995 evaluation, 28094–28096 Entergy Services, Inc., 27995 Federal Prison Industries, Inc.; increased waiver Northwest Pipeline Corp., 27995–27996 threshold, 28093–28095
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Introduction, 28077–28079 International Trade Administration Miscellaneous cost principles, 28090–28092 NOTICES Small entity compliance guide, 28097–28100 Antidumping: Technical amendments, 28097–28098 Fresh Atlantic salmon from— United States; geographic use of term, 28078–28090 Chile, 27987–27988 Federal travel: Stainless steel butt-weld pipe fittings from— Promotional materials; conference planning; clarification, Taiwan, 27988 27936–27937 North American Free Trade Agreement (NAFTA); PROPOSED RULES binational panel reviews: Federal Acquisition Regulation (FAR): Pure magnesium from— Unallowable costs accounting and application of cost Canada, 27988–27989 principles and procedures, 28107–28109 NOTICES International Trade Commission Agency information collection activities; proposals, NOTICES submissions, and approvals, 28008 Meetings; Sunshine Act, 28015 Government Ethics Office RULES Justice Department Privacy Act; implementation, 27891–27897 See Federal Bureau of Investigation NOTICES Pollution control; consent judgments: Grain Inspection, Packers and Stockyards Administration Arizona Public Service Co., 28015–28016 NOTICES Tecumseh Products Co., 28016 Agency designation actions: Virginia Electric & Power Co., 28016–28017 Indiana and Virginia, 27982–27983 Mississippi, 27983 Various States, 27983–27984 Labor Department Meetings: See Employee Benefits Security Administration Grain Inspection Advisory Committee, 27984 See Occupational Safety and Health Administration
Health and Human Services Department Land Management Bureau See Centers for Disease Control and Prevention NOTICES See Centers for Medicare & Medicaid Services Realty actions; sales, leases, etc.: See Children and Families Administration Oregon, 28012–28014 See Food and Drug Administration Survey plat filings: RULES Idaho, 28014–28015 Human drugs: Opiate addiction; opioid drugs use in maintenance and National Aeronautics and Space Administration detoxification treatment RULES List additions, 27937–27939 Federal Acquisition Regulation (FAR): Commercial items contract terms and conditions required Homeland Security Department to implement statute or Executive orders, 28095– See Coast Guard 28098 Cost-reimbursement contracts for services; prompt Housing and Urban Development Department payment, 28091–28093 RULES Electronic signatures, 28092–28094 Federal and Federally funded construction projects; open Federal Prison Industries contracts; past performance competition and government neutrality towards evaluation, 28094–28096 government contractors’ labor relations, 28101–28105 Federal Prison Industries, Inc.; increased waiver NOTICES threshold, 28093–28095 Agency information collection activities; proposals, Introduction, 28077–28079 submissions, and approvals, 28011 Miscellaneous cost principles, 28090–28092 Small entity compliance guide, 28097–28100 Interior Department Technical amendments, 28097–28098 See Fish and Wildlife Service United States; geographic use of term, 28078–28090 See Land Management Bureau PROPOSED RULES PROPOSED RULES Federal Acquisition Regulation (FAR): Hearings and appeals procedures: Unallowable costs accounting and application of cost Public land; special rules, 27955–27960 principles and procedures, 28107–28109 NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Meetings: Gulf Ecosystem Monitoring and Research Program, Advisory Council 28011–28012 Planetary Protection Advisory Committee, 28035
Internal Revenue Service National Institute of Standards and Technology NOTICES NOTICES Agency information collection activities; proposals, Meetings: submissions, and approvals, 28049–28051 Information Security and Privacy Advisory Board, 27989
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National Oceanic and Atmospheric Administration Technology Administration PROPOSED RULES NOTICES Fishery conservation and management: Committees; establishment, renewal, termination, etc.: West Coast States and Western Pacific fisheries— Joint Science and Technology Cooperation Advisory Pacific Coast groundfish, 27972 Council, 27991–27992 Pacific Coast groundfish vessel monitoring system, 27972–27981 Tennessee Valley Authority Western Pacific Fishery Management Council; NOTICES meetings, 27969–27971 Agency information collection activities; proposals, NOTICES submissions, and approvals, 28041–28042 Environmental statements; notice of intent: Channel Islands National Marine Sanctuary, CA, 27989– Textile Agreements Implementation Committee 27990 See Committee for the Implementation of Textile Permits: Agreements Marine mammals, 27990–27991 Transportation Department Nuclear Regulatory Commission See Federal Aviation Administration RULES See Federal Railroad Administration Radiation protection standards: See Surface Transportation Board Radiation exposure reports; personal information PROPOSED RULES labeling, 27903–27904 Computer reservation systems, carrier-owned; public NOTICES hearing, 27948 Agency information collection activities; proposals, NOTICES submissions, and approvals, 28035–28036 Aviation proceedings: Environmental statements; availability, etc.: Agreements filed; weekly receipts, 28042 Teledyne Brown Engineering, Inc., 28036 Certificates of public convenience and necessity and foreign air carrier permits; weekly applications, 28042 Occupational Safety and Health Administration NOTICES Nationally recognized testing laboratories, etc.: Treasury Department Canadian Standards Association, 28033–28034 See Internal Revenue Service NOTICES Privacy Act: Rural Utilities Service Systems of records, 28046–28049 NOTICES Agency information collection activities; proposals, submissions, and approvals, 27984–27985 Separate Parts In This Issue
Securities and Exchange Commission Part II NOTICES Interior Department, Fish and Wildlife Service, 28053– Securities: 28075 Transfer agents; registration, cancellation, etc., 28038 Self-regulatory organizations; proposed rule changes: Part III National Association of Securities Dealers, Inc., et al., Defense Department; General Services Administration; 28039–28041 National Aeronautics and Space Administration, Applications, hearings, determinations, etc.: 28077–28100 Kadant Inc., 28037 Public utility holding company filings, 28037–28038 Part IV Housing and Urban Development Department, 28101–28105 State Department NOTICES Part V Arms Export Control Act: Defense Department; General Services Administration; Countries not cooperating fully with U.S. antiterrorism National Aeronautics and Space Administration, efforts; determination and certification; congressional 28107–28109 notifications, 28041
Surface Transportation Board Reader Aids NOTICES Consult the Reader Aids section at the end of this issue for Rail carriers: phone numbers, online resources, finding aids, reminders, Control exemptions— and notice of recently enacted public laws. International Steel Group, Inc., 28045 To subscribe to the Federal Register Table of Contents Railroad operation, acquisition, construction, etc.: LISTSERV electronic mailing list, go to http:// Keystone Railroad LLC, 28045–28046 listserv.access.gpo.gov and select Online mailing list Railroad services abandonment: archives, FEDREGTOC-L, Join or leave the list (or change V&S Railway, Inc., 28046 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.
5 CFR 29...... 28079 2606...... 27891 31 (2 documents) ...... 28079, 28091 7 CFR 32...... 28092 28...... 27897 35...... 28079 1205...... 27898 36...... 28079 Proposed Rules: 42 (2 documents) ...... 28079, 205...... 27941 28095 930...... 27943 45...... 28079 10 CFR 47 (2 documents) ...... 28079, 20...... 27903 28091 52 (5 documents) ...... 28079, 14 CFR 28091, 28092, 28096, 28098 Proposed Rules: 53...... 28079 71...... 27946 255...... 27948 48 CFR 399...... 27948 Proposed Rules: 21 CFR 31...... 28108 573...... 27904 50 CFR 24 CFR 17...... 28054 5...... 28102 Proposed Rules: 17...... 27961 32 CFR 660 (3 documents) ...... 27969, 207...... 27904 27972 33 CFR 160...... 27907 Proposed Rules: 72...... 28052 165...... 27948 40 CFR 52...... 27908 62...... 27911 63...... 27913 300 (2 documents) ...... 27931, 27933 Proposed Rules: 62...... 27953 300 (2 documents) ...... 27954 41 CFR 301-53...... 27936 301-74...... 27936 42 CFR 8...... 27937 43 CFR Proposed Rules: 4...... 27955 47 CFR 73 (2 documents) ...... 27939, 27940 Proposed Rules: 73 (2 documents) ...... 27960, 27961 48 CFR Ch. 1 (2 documents) ...... 28078, 28098 2 (3 documents) ...... 28079, 28091, 28092 3...... 28079 4 (2 documents) ...... 28079, 28093 5...... 28079 6...... 28079 8 (3 documents) ...... 28079, 28094, 28095 9...... 28079 14...... 28079 19...... 28079 22...... 28079 23...... 28079 25...... 28079 26...... 28079 28...... 28079
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Rules and Regulations Federal Register Vol. 68, No. 99
Thursday, May 22, 2003
This section of the FEDERAL REGISTER reference in § 2606.203(c) to any final rule in light of section 3 of contains regulatory documents having general possible fee for certified copies of Executive Order 12988, Civil Justice applicability and legal effect, most of which records when such are provided. Reform, and certify that it meets the are keyed to and codified in the Code of Instead, the section simply provides that applicable standards provided therein. Federal Regulations, which is published under OGE and concerned agencies generally 50 titles pursuant to 44 U.S.C. 1510. Regulatory Flexibility Act will not furnish certified copies of The Code of Federal Regulations is sold by records. The second change is that OGE As Director of the Office of the Superintendent of Documents. Prices of is clarifying in § 2606.206(a)(2)(ii)(B) Government Ethics, I certify under the new books are listed in the first FEDERAL that only a previous failure to timely Regulatory Flexibility Act (5 U.S.C. REGISTER issue of each week. pay a Privacy Act fee can serve as an chapter 6) that this regulation will not alternate basis for the possible have a significant economic impact on requirement of an advance payment for a substantial number of small entities, OFFICE OF GOVERNMENT ETHICS additional copies of records being because it will primarily affect current provided under the Privacy Act. and former executive branch Federal 5 CFR Part 2606 In addition, OGE published in the employees. RIN 3209–AA18 Federal Register on January 22, 2003 (in a separate part II), at 68 FR 3097–3109, Unfunded Mandates Reform Act Privacy Act; Implementation a notice of proposed new and revised For purposes of the Unfunded systems of records under the Privacy Mandates Reform Act of 1995 (2 U.S.C. AGENCY: Office of Government Ethics Act. Public comments were invited, to (OGE). chapter 25, subpart II), this regulation be received by OGE by March 24, 2003. would not significantly or uniquely ACTION: Final rule. Likewise, OGE did not receive any affect small governments and would not comments on the notice. Pursuant to result in increased expenditures by SUMMARY: The Office of Government that notice, the new and revised records Ethics is adopting as final, with two State, local, and tribal governments, in systems will become effective on May the aggregate, or by the private sector, of minor changes, a proposed rule 22, 2003 without change (except for the establishing procedures relating to $100 million or more (as adjusted for correction of some minor errors, see 68 inflation) in any one year. access, maintenance, disclosure, and FR 24744 (May 8, 2003)). Therefore, amendment of records which are in OGE is making this final rule effective Paperwork Reduction Act OGE systems of records under the on the same date, May 22, 2003. Privacy Act of 1974. This rule also The Paperwork Reduction Act (44 establishes rules of conduct for OGE Administrative Procedure Act U.S.C. chapter 35) does not apply to this personnel who have responsibilities Pursuant to 5 U.S.C. 553(d), as regulation because it does not contain under that Act. Director of the Office of Government information collection requirements that require the approval of the Office of EFFECTIVE DATE: May 22, 2003. Ethics, I find good cause exists for Management and Budget. FOR FURTHER INFORMATION CONTACT: waiving the 30-day delay in Elaine Newton, Attorney Advisor, Office effectiveness as to this final rule. The Congressional Review Act of Government Ethics, Suite 500, 1201 delayed effective date provision is being waived in part because this final OGE The Office of Government Ethics has New York Avenue, NW., Washington, determined that this regulation involves DC 20005–3917; telephone: 202–208– Privacy Act rule makes only two minor changes to the previously published a nonmajor rule under the 8000; TDD: 202–208–8025; FAX: 202– Congressional Review Act (5 U.S.C. 208–8037. proposed rule (as explained above). Furthermore, it is in the public interest chapter 8) and will submit a report SUPPLEMENTARY INFORMATION: In this that this OGE Privacy Act regulation thereon to the U.S. Senate, House of rulemaking document, OGE is adopting become effective on the same date, May Representatives and General Accounting final rules under the Privacy Act, 5 22, 2003, as OGE’s new and revised Office in accordance with that law at the U.S.C. 552a. On January 22, 2003, at 68 Privacy Act systems of records. same time this rulemaking document is FR 2923–2929, OGE published a sent to the Office of the Federal Register proposed rule that would establish Executive Order 12866 for publication in the Federal Register. procedures relating to OGE systems of In promulgating this final rule, the List of Subjects in 5 CFR Part 2606 records under the Privacy Act, for Office of Government Ethics has codification at 5 CFR part 2606. The adhered to the regulatory philosophy Administrative practice and proposed rule invited comments from and the applicable principles of procedure, Archives and records, the public, to be received by OGE on or regulation set forth in section 1 of Conflict of interests, Government before March 24, 2003. No comments Executive Order 12866, Regulatory employees, Privacy Act. were received. After consultation with Planning and Review. This regulation Approved: May 16, 2003. the Office of Management and Budget has also been approved by the Office of Amy L. Comstock, during the course of Executive Order Management and Budget under the Director, Office of Government Ethics. 12866 review of this final rule, OGE has Executive order. determined that only two minor changes ■ Accordingly, for the reasons set forth are needed to the proposed rule in Executive Order 12988 in the preamble, the Office of adopting it as final. The first change is As Director of the Office of Government Ethics is amending that OGE is dropping the proposed Government Ethics, I have reviewed this subchapter A of chapter XVI of title 5 of
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the Code of Federal Regulations by identifier the information is maintained § 2606.104 OGE and agency adding part 2606 to read as follows: or retrieved; responsibilities. He, his, and him include she, hers and (a) The procedures in this part apply PART 2606—PRIVACY ACT RULES to: her. (1) All initial Privacy Act access and Subpart A—General Provisions Office or OGE means the U.S. Office amendment requests regarding records Sec. of Government Ethics; contained in an OGE system of records. 2606.101 Purpose. (2) Administrative appeals from an 2606.102 Definitions. System manager means the Office or other agency official who has the Office or agency denial of an initial 2606.103 Systems of records. request for access to, or to amend, 2606.104 OGE and agency responsibilities. authority to decide Privacy Act matters 2606.105 Rules for individuals seeking to relative to a system of records; records contained in an OGE system of ascertain if they are the subject of a records. record. System of records means a group of (b) For records contained in an OGE 2606.106 OGE employee Privacy Act rules any records containing personal Governmentwide system of records, of conduct and responsibilities. information controlled and managed by each agency is responsible (unless OGE from which information is Subpart B—Access to Records and specifically excepted by the Office) for Accounting of Disclosures retrieved by the name of an individual responding to initial requests for access or by some personal identifier assigned or amendment of records in its custody 2606.201 Requests for access. to that individual; and administrative appeals of denials 2606.202 OGE or other agency action on requests. Working day as used in calculating thereof. 2606.203 Granting access. the date when a response is due means (c) For records and material of another 2606.204 Request for review of an initial calendar days, excepting Saturdays, agency that are in the custody of OGE, but not under its control or ownership, denial of access. Sundays, and legal public holidays. 2606.205 Response to a request for review OGE may refer a request for the records of an initial denial of access. § 2606.103 Systems of records. to that other agency, consult with the 2606.206 Fees. other agency prior to responding, or 2606.207 Accounting of disclosures. (a) Governmentwide systems of notify the requester that the other Subpart C—Amendment of Records records. The Office of Government agency is the proper agency to contact. Ethics maintains two executive branch 2606.301 Requests to amend records. Governmentwide systems of records: the § 2606.105 Rules for individuals seeking to 2606.302 OGE or other agency action on OGE/GOVT–1 system of records, ascertain if they are the subject of a record. requests. An individual seeking to ascertain if 2606.303 Request for review of an initial comprised of Executive Branch refusal to amend a record. Personnel Public Financial Disclosure any OGE system of records contains a 2606.304 Response to a request for review Reports and Other Name-Retrieved record pertaining to him must follow of an initial refusal to amend; Ethics Program Records; and the OGE/ the access procedures set forth at disagreement statements. GOVT–2 system of records, comprised § 2606.201(a) and (b). Authority: 5 U.S.C. 552a, 5 U.S.C. App. of Executive Branch Confidential § 2606.106 OGE employee Privacy Act (Ethics in Government Act of 1978). Financial Disclosure Reports. These rules of conduct and responsibilities. Governmentwide systems of records are Each OGE employee involved in the Subpart A—General Provisions maintained by OGE, and through Office design, development, operation, or § 2606.101 Purpose. delegations of authority, by Federal maintenance of any system of records, This part sets forth the regulations of executive branch departments and or in maintaining any record covered by the Office of Government Ethics (OGE) agencies with regard to their own the Privacy Act, shall comply with the implementing the Privacy Act of 1974, employees, applicants for employment, pertinent provisions of the Act relating as amended (5 U.S.C. 552a). It governs individuals nominated to a position to the treatment of such information. access, maintenance, disclosure, and requiring Senate confirmation, Particular attention is directed to the amendment of records contained in candidates for a position, and former following provisions of the Privacy Act: OGE’s executive branch employees. (a) 5 U.S.C. 552a(e)(7). The requirement to maintain in a system of Governmentwide and internal systems (b) OGE Internal systems of records. records no record describing how any of records, and establishes rules of The Office of Government Ethics individual exercises rights guaranteed conduct for OGE employees who have internal systems of records are under by the First Amendment of the responsibilities under the Act. OGE’s physical custody and control and Constitution of the United States unless are established and maintained by the § 2606.102 Definitions. expressly authorized by statute or by the Office on current and former OGE individual about whom the record is For the purpose of this part, the terms employees regarding matters relating to listed below are defined as follows: maintained or unless pertinent to and the internal management of the Office. Access means providing a copy of a within the scope of an authorized law record to, or allowing review of the These systems of records consist of the enforcement activity. original record by, the data subject or OGE/INTERNAL–1 system, comprised (b) 5 U.S.C. 552a(b). The requirement the requester’s authorized of Pay, Leave and Travel Records; the that no agency shall disclose any record representative, parent or legal guardian; OGE/INTERNAL–2 system, comprised which is contained in a system of Act means the Privacy Act of 1974, as of Telephone Call Detail Records; the records by any means of communication amended, 5 U.S.C. 552a; OGE/INTERNAL–3 system, comprised to any person or to another agency, Amendment means the correction, of Grievance Records; the OGE/ except pursuant to a written request by, addition, deletion, or destruction of a INTERNAL–4 system, comprised of or with the prior written consent of, the record or specific portions of a record; Computer Systems Activity and Access individual to whom the record pertains, Data subject means the individual to Records; and the OGE/INTERNAL–5 except under certain limited conditions whom the information pertains and by system, comprised of Employee Locator specified in subsections (b)(1) through whose name or other individual and Emergency Notification Records. (b)(12) of the Privacy Act.
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(c) 5 U.S.C. 552a(e)(1). The to have an opportunity to request that Request’’ on both the envelope and at requirement for an agency to maintain such records be amended. the top of the request letter, to the in its systems of records only such (j) 5 U.S.C. 552a(c)(4) and (d)(4). The Deputy Director, Office of information about an individual as is requirement to inform any person or Administration and Information relevant and necessary to accomplish a other agency about any correction or Management, Office of Government purpose of the agency required to be notation of dispute made by the agency Ethics, Suite 500, 1201 New York accomplished by statute or by Executive in accordance with subsection (d) of the Avenue, NW., Washington, DC 20005– order. Act of any record that has been 3917. (d) 5 U.S.C. 552a(e)(2). The disclosed to the person or agency if an (c) Content of request. (1) A request requirement to collect information to accounting of the disclosure was made; should contain a specific reference to the greatest extent practicable directly and, in any disclosure of information the OGE system of records from which from the subject individual when the about which an individual has filed a access to the records is sought. Notices information may result in adverse statement of disagreement, to note of OGE systems of records subject to the determinations about an individual’s clearly any portion of the record which Privacy Act are published in the Federal rights, benefits, and privileges under is disputed and to provide copies of the Register, and copies of the notices are Federal programs. statement (and if the agency deems it available on OGE’s Web site at http:// (e) 5 U.S.C. 552a(e)(3). The appropriate, copies of a concise www.usoge.gov, or upon request from requirement to inform each individual statement of the reasons of the agency OGE’s Office of General Counsel and asked to supply information to be for not making the amendments Legal Policy. A biennial compilation of maintained in a system of records the requested) to persons or other agencies such notices also is made available authority which authorizes the to whom the disputed record has been solicitation of the information and online and published by the Office of disclosed. Federal Register at the GPO Access Web whether disclosure of such information (k) 5 U.S.C. 552a(n). The requirement is mandatory or voluntary; the principal site (http://www.access.gpo.gov/ for an agency not to sell or rent an su_docs/aces/PrivacyAct.shtml) in purpose or purposes for which the individual’s name or address, unless information is intended to be used; the accordance with 5 U.S.C. 552a(f) of the such action is specifically authorized by Act. routine uses which may be made of the law. information; and the effects on the (l) 5 U.S.C. 552a(i). The criminal (2) If the written inquiry does not individual, if any, of not providing all penalties to which an employee may be refer to a specific system of records, it or any part of the requested information. subject for failing to comply with should include other information that (f) 5 U.S.C. 552a(b) and (e)(10). The certain provisions of the Privacy Act. will assist in the identification of the requirement to comply with established records for which access is being safeguards and procedures to ensure the Subpart B—Access to Records and requested. Such information may security and confidentiality of records Accounting of Disclosures include, for example, the individual’s and to protect personal data from any full name (including her maiden name, anticipated threats or hazards to their § 2606.201 Requests for access. if pertinent), dates of employment, security or integrity which could result (a) Records in an OGE social security number (if any records in in substantial harm, embarrassment, Governmentwide system of records. An the system include this identifier), inconvenience, or unfairness to an individual requesting access to records current or last place and date of Federal individual on whom information is pertaining to him in an OGE employment. If the request for access maintained in a system of records. Governmentwide system of records follows a prior request to determine if (g) 5 U.S.C. 552a(c)(1), (c)(2) and should submit a written request, which an individual is the subject of a record, (c)(3). The requirement to maintain an includes the words ‘‘Privacy Act the same identifying information need accounting of specified disclosures of Request’’ on both the envelope and at not be included in the request for access personal information from systems of the top of the request letter, to the if a reference is made to that prior records in accordance with established appropriate system manager as follows: correspondence, or a copy of the Office procedures. (1) Records filed directly with OGE by response to that request is attached. (h) 5 U.S.C. 552a(e)(5) and (e)(6). The non-OGE employees: The Deputy (3) The request should state whether requirements to maintain all records in Director, Office of Agency Programs, the requester wants a copy of the record, a system of records which are used by Office of Government Ethics, Suite 500, or wants to examine the record in the agency in making any determination 1201 New York Avenue, NW., person. about an individual with such accuracy, Washington, DC 20005–3917; relevance, timeliness, and completeness (2) Records filed with a Designated § 2606.202 OGE or other agency action on as is reasonably necessary to assure Agency Ethics Official (DAEO) or the requests. fairness to the individual in the head of a department or agency: The A response to a request for access determination; and to make reasonable DAEO at the department or agency should include the following: efforts to assure that such records are concerned; or (a) A statement that there is a record accurate, complete, timely, and relevant (3) Records filed with the Federal or records as requested or a statement for agency purposes, prior to Election Commission by candidates for that there is not a record in the system disseminating any record about an President or Vice President: The General of records; individual to any person other than an Counsel, Office of General Counsel, agency (unless the dissemination is Federal Election Commission, 999 E (b) The method of access (if a copy of required by the Freedom of Information Street, NW., Washington, DC 20463. all the records requested is not provided Act, 5 U.S.C. 552). (b) Records in an OGE Internal with the response); (i) 5 U.S.C. 552a(d)(1), (d)(2) and System of Records. An individual (c) The amount of any fees to be (d)(3). The requirement to permit requesting access to records pertaining charged for copies of records under individuals to have access to records to him in an OGE internal system of § 2606.206 of this part or other agencies’ pertaining to themselves in accordance records should submit a written request, Privacy Act regulations as referenced in with established Office procedures and which includes the words ‘‘Privacy Act that section;
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(d) The name, title, and telephone documentation will be required, e.g., an records which are otherwise available to number of the official having employee identification card, driver’s any person under 5 U.S.C. 552. operational control over the record; and license, passport, or other officially (4) Inadequate identification. If the (e) If the request is denied in whole issued document with a picture of the official having operational control over or in part, or no record is found in the person requesting access. the records in a system of records system, a statement of the reasons for (ii) Other than current or former determines that an individual seeking the denial, or a statement that no record employees. Individuals other than access has not provided sufficient has been found, and notice of the current or former employees requesting identification documentation to permit procedures for appealing the denial or access to records pertaining to them in access, the official shall consult with the no record finding. a system of records must produce appropriate system manager prior to adequate identification documentation § 2606.203 Granting access. denying the individual access. prior to being granted access. The extent Whenever the system manager (a) The methods for allowing access to of the identification documentation determines, in accordance with the records, when such access has been required will depend on the type of procedures herein, that access will not granted by OGE or the other agency records to be accessed. In most cases, be granted, the response will also concerned are: identification verification will be include a statement of the procedures to (1) Examination in person in a accomplished by the presentation of two obtain a review of the decision to deny designated office during the hours forms of identification with a picture of access in accordance with § 2606.205. specified by OGE or the other agency; the person requesting access (such as a (2) Providing photocopies of the (f) Access by the parent of a minor, or driver’s license and passport). Any legal guardian. A parent of a minor, records; or additional requirements are specified in (3) Transfer of records at the option of upon presenting suitable personal the system notices published pursuant identification as otherwise provided OGE or the other agency to another to subsection (e)(4) of the Act. more convenient Federal facility. under this section, may access on behalf (2) Access granted by mail. For of the minor any record pertaining to (b) When a requester has not records to be accessed by mail, the the minor in a system of records. A legal indicated whether he wants a copy of appropriate system manager shall, to the guardian, upon presentation of the record, or wants to examine the extent possible, establish identity by a documentation establishing record in person, the appropriate system comparison of signatures in situations guardianship and suitable personal manager may choose the means of where the data in the record is not so identification as otherwise provided granting access. However, the means sensitive that unauthorized access could under this section, may similarly act on chosen should not unduly impede the cause harm or embarrassment to the behalf of a data subject declared to be data subject’s right of access. A data individual to whom they pertain. No incompetent due to physical or mental subject may elect to receive a copy of identification documentation will be incapacity or age by a court of the records after having examined them. required for the disclosure to the data (c) Generally, OGE or the other agency subject of information required to be competent jurisdiction. Minors are not concerned will not furnish certified made available to the public by 5 U.S.C. precluded from exercising on their own copies of records. When copies are to be 552, the Freedom of Information Act. behalf rights given to them by the furnished, they may be provided as When, in the opinion of the system Privacy Act. determined by OGE or the other agency manager, the granting of access through (g) Accompanying individual. A data concerned. the mail could reasonably be expected subject requesting access to his records (d) When the data subject seeks to to result in harm or embarrassment if in a system of records may be obtain original documentation, the disclosed to a person other than the accompanied by another individual of Office and the other agencies concerned individual to whom the record pertains, the data subject’s choice during the reserve the right to limit the request to a notarized statement of identity or course of the examination of the record. copies of the original records. Original some similar assurance of identity may The official having operational control records should be made available for be required. of the record may require the data review only in the presence of the (3) Unavailability of identification subject making the request to submit a appropriate system manager or his documentation. If an individual is signed statement authorizing the designee. unable to produce adequate accompanying individual’s access to the Note to paragraph (d) of § 2606.203: identification documentation, the record. Section 2071(a) of title 18 of the United individual will be required to sign a (h) Access to medical records. When States Code makes it a crime to conceal, statement asserting identity and a request for access involves medical or remove, mutilate, obliterate, or destroy any acknowledging that knowingly or psychological records that the record filed in a public office, or to attempt willfully seeking or obtaining access to appropriate system manager believes to do so. records about another person under requires special handling, the data (e) Identification requirements—(1) false pretenses may result in a criminal subject should be advised that the Access granted in person—(i) Current or fine of up to $5,000 under subsection material will be provided only to a former employees. Current or former (i)(3) of the Act. In addition, depending physician designated by the data employees requesting access to records upon the sensitivity of the records subject. Upon receipt of the designation pertaining to them in a system of sought to be accessed, the appropriate and upon verification of the physician’s records may, in addition to the other system manager or official having identity as otherwise provided under requirements of this section, and at the operational control over the records may this section, the records will be made sole discretion of the official having require such further reasonable available to the physician, who will operational control over the record, assurances as may be considered disclose those records to the data have their identity verified by visual appropriate, e.g., statements of other subject. observation. If the current or former individuals who can attest to the (i) Exclusion. Nothing in these employee cannot be so identified by the identity of the data subject. No regulations permits a data subject’s official having operational control over verification of identity will be required access to any information compiled in the records, adequate identification of data subjects seeking access to reasonable anticipation of a civil action
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or proceeding (see subsection (d)(5) of (i) The search and review time (b) Fees for records filed with agencies the Act). expended by OGE to produce a record; other than OGE. An agency shall apply (j) Maximum access. This regulation (ii) The first copy of the records its own Privacy Act fee schedule for is not intended to preclude access by a provided; or records in OGE’s executive branch data subject to records that are available (iii) The Office of Government Ethics Governmentwide systems that are filed to that individual under other processes, making the records available to be directly with the agency. An agency that such as the Freedom of Information Act personally reviewed by the data subject. does not have a Privacy Act fee (5 U.S.C. 552) or the rules of civil or (2) Additional copies of records. schedule may apply the fee schedule in criminal procedure, provided that the When additional copies of records are this section. appropriate procedures for requesting requested, an individual may be charged § 2606.207 Accounting of disclosures. access thereunder are followed. $.15 per page. (i) Notice of anticipated fees in excess (a) The Office of Government Ethics § 2606.204 Request for review of an initial or the other agency concerned will denial of access. of $25.00. If the charge for these additional copies amounts to more than maintain an accounting of disclosures in (a)(1) A data subject may submit a $25.00, the requester will be notified cases where records about the data written appeal of the decision by OGE and payment of fees may be required subject are disclosed from OGE’s system or the other agency to deny an initial before the additional copies are of records except— request for access to records or a no provided, unless the requester has (1) When the disclosure is made record response. indicated in advance his willingness to pursuant to the Freedom of Information (i) For records filed directly with pay fees as high as those anticipated. Act, as amended (5 U.S.C. 552); or OGE, the appeal must be submitted to (ii) Advance payments. An advance the Director, Office of Government (2) When the disclosure is made to payment before additional copies of the those officers and employees of OGE or Ethics, Suite 500, 1201 New York records are made will be required if: Avenue, NW., Washington, DC 20005– the other agency which maintains the (A) The Office estimates or records who have a need for the records 3917. determines that the total fee to be (ii) For records in OGE’s executive in the performance of their duties. assessed under this section is likely to (b) This accounting of disclosures will branch Governmentwide systems of exceed $250.00. When a determination records that are filed directly with an be retained for at least five years or for is made that the allowable charges are the life of the record, whichever is agency (including the Federal Election likely to exceed $250.00, the requester Commission) other than OGE, the longer, and will contain the following will be notified of the likely cost and information: appeal must be submitted to the Privacy will be required to provide satisfactory (1) A brief description of the record Act access appeals official as specified assurance of full payment where the disclosed; in the agency’s own Privacy Act requester has a history of prompt regulations or the respective head of the payment of Privacy Act fees, or will be (2) The date, nature, and purpose for agency concerned if it does not have any required to submit an advance payment the disclosure; and Privacy Act regulations. of an amount up to the full estimated (3) The name and address of the (2) The words ‘‘Privacy Act Appeal’’ charges in the case of requesters with no individual, agency, or other entity to should be included on the envelope and history of payment; or whom the disclosure is made. at the top of the letter of appeal. (B) The requester has previously (c) Under sections 102 and 105 of the (b) The appeal should contain a brief failed to pay a Privacy Act fee charged Ethics in Government Act, 18 U.S.C. description of the records involved or in a timely fashion (i.e., within 30 days 208(d) and 5 CFR parts 2634 and 2640 copies of the correspondence from OGE of the date of the billing). In such cases, of OGE’s executive branch regulations, a or the agency in which the initial the requester may be required to pay the requester other than the data subject request for access was denied. The full amount owed plus any applicable must submit a signed, written appeal should attempt to refute the interest as provided by paragraph application on the OGE Form 201 or reasons given by OGE or the other (a)(2)(iii) of this section, and to make an agency equivalent form to inspect or agency concerned in its decision to advance payment of the full amount of receive copies of certain records, such deny the initial request for access or the the estimated fee before the Office as SF 278 Public Financial Disclosure no record finding. begins to process a new request. Reports, Certificates of Divestiture, 18 § 2606.205 Response to a request for (iii) Interest charges. Interest charges U.S.C. 208(b)(1) and (b)(3) waivers, and review of an initial denial of access. on an unpaid bill may be assessed OGE certified qualified blind and (a) If the OGE Director or agency starting on the 31st day following the diversified trust instruments and other reviewing official determines that access day on which the billing was sent. publicly available qualified trust to the records should be granted, the Interest shall be at the rate prescribed in materials. The written application response will state how access will be 31 U.S.C. 3717 and shall accrue from requests the name, occupation and provided if the records are not included the date of billing. To collect unpaid address of the requester as well as lists with the response. bills, the Office will follow the the prohibitions on obtaining or using (b) Any decision that either partially provisions of the Debt Collection Act of the records. These applications are used or fully affirms the initial decision to 1982, as amended (96 Stat. 1749 et seq.) as the accounting of disclosures for deny access shall inform the requester and the Debt Collection Improvement these records. of the right to seek judicial review of the Act of 1996 (110 Stat. 1321–358 et seq.), (d) Except for the accounting of a decision in accordance with 5 U.S.C. including the use of consumer reporting disclosure made under subsection (b)(7) 552a(g) of the Privacy Act. agencies, collection agencies, and offset. of the Privacy Act for a civil or criminal (iv) Remittance. Remittance should be law enforcement activity that is § 2606.206 Fees. made by either a personal check, bank authorized by law, the accounting of (a) Fees for records filed with OGE— draft or a money order that is payable disclosures will be made available to the (1) Services for which fees will not be to the Department of the Treasury of the data subject upon request in accordance charged: United States. with the access procedures of this part.
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Subpart C—Amendment of Records serve in lieu of a separate description of (i) The name and address of the the record. official with whom an appeal of the § 2606.301 Requests to amend records. (3) The exact portion of the record(s) denial may be lodged; and (a) Amendment request. A data the data subject seeks to have amended (ii) A description of any other subject seeking to amend a record or should be indicated clearly. If possible, procedures which may be required of records that pertain to him in a system proposed alternative language should be the data subject in order to process the of records must submit his request in set forth, or, at a minimum, the reasons appeal. writing in accordance with the why the data subject believes his record following procedures, unless this § 2606.303 Request for review of an initial is not accurate, relevant, timely, or refusal to amend a record. requirement is waived by the complete should be set forth with appropriate system manager. Records enough particularity to permit OGE or (a)(1) A data subject may submit a not subject to the Privacy Act will not the other agency concerned not only to written appeal of the initial decision by be amended in accordance with these understand the data subject’s basis for OGE or an agency denying a request to provisions. the request, but also to make an amend a record in an OGE system of (b) Addresses—(1) Records in an OGE appropriate amendment to the record. records. Governmentwide system of records. A (i) For records which are filed directly (d) Burden of proof. The data subject request to amend a record in an OGE with OGE, the appeal must be submitted has the burden of proof when seeking Governmentwide system of records to the Director, Office of Government the amendment of a record. The data should be sent to the appropriate system Ethics, Suite 500, 1201 New York subject must furnish sufficient facts to manager as follows: Avenue, NW., Washington, DC 20005– persuade the appropriate system (i) Records filed directly with OGE by 3917. manager of the inaccuracy, irrelevance, non-OGE employees: The Deputy (ii) For records which are filed untimeliness, or incompleteness of the Director, Office of Agency Programs, directly with an agency (including the record. Office of Government Ethics, Suite 500, Federal Election Commission) other 1201 New York Avenue, NW., (e) Identification requirement. When than OGE, the appeal must be submitted Washington, DC 20005–3917; the data subject’s identity has been to the Privacy Act amendments appeals (ii) Records filed with a Designated previously verified pursuant to official as specified in the agency’s own Agency Ethics Official (DAEO) or the § 2606.203, further verification of Privacy Act regulations, or to the head of a department or agency: The identity is not required as long as the respective head of the agency concerned DAEO at the department or agency communication does not suggest a need if it does not have Privacy Act concerned; or for verification. If the data subject’s regulations. (iii) Records filed with the Federal identity has not been previously (2) The words ‘‘Privacy Act Appeal’’ Election Commission by candidates for verified, the appropriate system should be included on the envelope and President or Vice President: The General manager may require identification at the top of the letter of the appeal. Counsel, Office of General Counsel, validation as described in § 2606.203. (b) The request for review should Federal Election Commission, 999 E § 2606.302 OGE or other agency action on contain a brief description of the Street, NW., Washington, DC 20463. requests. record(s) involved or copies of the (2) Records in an OGE internal system correspondence from OGE or the agency of records. A request to amend a record (a) Time limit for acknowledging a request for amendment. To the extent in which the request to amend was in an OGE internal system of records denied, and the reasons why the data should include the words ‘‘Privacy Act possible, OGE or the other agency concerned will acknowledge receipt of a subject believes that the disputed Amendment Request’’ on both the information should be amended. envelope and at the top of the request request to amend a record or records letter, and should be sent to the Deputy within 10 working days. § 2606.304 Response to a request for Director, Office of Administration and (b) Initial determination on an review of an initial refusal to amend; Information Management, Office of amendment request. The decision of disagreement statements. Government Ethics, Suite 500, 1201 OGE or the other agency in response to (a) The OGE Director or agency New York Avenue, NW., Washington, a request for amendment of a record in reviewing official should make a final DC 20005–3917. a system of records may grant in whole, determination in writing not later than (c) Contents of request. (1) A request or deny any part of the request to amend 30 days from the date the appeal was to amend a record in an OGE the record(s). received. The 30-day period may be Governmentwide system of records or (1) If OGE or the other agency extended for good cause. Notice of the an OGE internal system of records concerned grants the request, the extension and the reasons therefor will should include the words ‘‘Privacy Act appropriate system manager will amend be sent to the data subject within the 30- Amendment Request’’ on both the the record(s) and provide a copy of the day period. envelope and at the top of the request amended record(s) to the data subject. (b) If the OGE Director or agency letter. Where an accounting of disclosure has reviewing official determines that the (2) The name of the system of records been maintained, the system manager record(s) should be amended in and a brief description of the record(s) shall advise all previous recipients of accordance with the data subject’s proposed for amendment must be the record that an amendment has been request, the OGE Director or agency included in any request for amendment. made and give the substance of the reviewing official will take the In the event the request to amend the amendment. Where practicable, the necessary steps to advise the data record(s) is the result of the data system manager shall send a copy of the subject, and to direct the appropriate subject’s having gained access to the amended record to previous recipients. system manager: record(s) in accordance with the (2) If OGE or the other agency (1) To amend the record(s), and provisions concerning access to records concerned denies the request in whole (2) To notify previous recipients of as set in subpart B of this part, copies or in part, the reasons for the denial will the record(s) for which there is an of previous correspondence between the be stated in the response letter. In accounting of disclosure that the requester and OGE or the agency will addition, the response letter will state: record(s) have been amended.
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(c) If the appeal decision does not FOR FURTHER INFORMATION CONTACT: maintained at $1.45 per bale; the 2003 grant in full the request for amendment, Norma McDill, Deputy Administrator, crop is estimated at 17,200,000 bales). the decision letter will notify the data Cotton Program, AMS, USDA, Room (2) The fee for services will not affect subject that he may: 2641–S, STOP 0224, 1400 Independence competition in the marketplace; and (1) Obtain judicial review of the Avenue, SW., Washington, DC 20250– (3) The use of classification services is decision in accordance with the terms of 0224. Telephone (202) 720–2145, voluntary. For the 2002 crop, 17,145,000 the Privacy Act at 5 U.S.C. 552a(g); and facsimile (202) 690–1718, or e-mail bales were produced; and, virtually all (2) File a statement setting forth his [email protected]. of these bales were voluntarily reasons for disagreeing with the submitted by growers for the SUPPLEMENTARY INFORMATION: A decision. proposed rule detailing the revisions classification service. (d)(1) A data subject’s disagreement (4) Based on the average price paid to was published in the Federal Register statement must be concise. The growers for cotton from the 2001 crop of on March 31, 2003. (68 FR 15385). A 15- appropriate system manager has the 29.8 cents per pound, 500 pound bales day comment period was provided for authority to determine the interested persons to respond to the of cotton are worth an average of $149 ‘‘conciseness’’ of the statement, taking proposed rule. No comments were each. The user fee for classification into account the scope of the received and no changes have been services, $1.45 per bale, is less than one disagreement and the complexity of the made in the provisions of the final rule. percent of the value of an average bale issues. of cotton. (2) In any disclosure of information Executive Order 12866 Paperwork Reduction Act about which an individual has filed a This final rule has been determined to statement of disagreement, the be not significant for purposes of In compliance with OMB regulations appropriate system manager will clearly Executive Order 12866; and, therefore (5 CFR part 1320), which implement the note any disputed portion(s) of the has not been reviewed by the Office of Paperwork Reduction Act (PRA) (44 record(s) and will provide a copy of the Management and Budget (OMB). U.S.C. 3501 et seq.), the information statement to persons or other agencies to collection requirements contained in the whom the disputed record or records Executive Order 12988 provisions to be amended by this has been disclosed and for whom an This final rule has been reviewed proposed rule have been previously accounting of disclosure has been under Executive Order 12988, Civil approved by OMB and were assigned maintained. A concise statement of the Justice Reform. It is not intended to OMB control number 0581–0009 under reasons for not making the amendments have retroactive effect. This rule would the Paperwork Reduction Act (44 U.S.C. requested may also be provided. not preempt any state or local laws, 3501 et seq.). [FR Doc. 03–12856 Filed 5–21–03; 8:45 am] regulations, or policies unless they Fees for Classification Under the Cotton present an irreconcilable conflict with BILLING CODE 6345–02–P Statistics and Estimates Act of 1927 this rule. There are no administrative procedures that must be exhausted prior The user fee charged to cotton to any judicial challenge to the producers for High Volume Instrument DEPARTMENT OF AGRICULTURE provisions of this rule. (HVI) classification services under the Cotton Statistics and Estimates Act (7 Agricultural Marketing Service Regulatory Flexibility Act U.S.C. 473a) was $1.45 per bale during Pursuant to requirements set forth in the 2002 harvest season as determined 7 CFR Part 28 the Regulatory Flexibility Act (RFA) (5 by using the formula provided in the [CN–02–006] U.S.C. 601 et seq.) AMS has considered Uniform Cotton Classing Fees Act of the economic impact of this action on 1987, as amended by Public Law 102– RIN 0581–AC17 small entities and has determined that 237. The fees cover salaries, costs of Revision of User Fees for 2003 Crop its implementation will not have a equipment and supplies, and other Cotton Classification Services to significant economic impact on a overhead costs, including costs for Growers substantial number of small businesses. administration, and supervision. These The purpose of the RFA is to fit changes will be made effective July 1, AGENCY: Agricultural Marketing Service, regulatory actions to the scale of 2003, as provided by the Cotton USDA. businesses subject to such actions so Statistics and Estimates Act. ACTION: Final rule. that small businesses will not be This final rule establishes the user fee disproportionately burdened. There are charged to producers for HVI SUMMARY: The Agricultural Marketing an estimated 35,000 cotton growers in classification at $1.45 per bale during Service (AMS) is maintaining user fees the U.S. who voluntarily use the AMS the 2003 harvest season. for cotton producers for 2003 crop cotton classing services annually, and Public Law 102–237 amended the cotton classification services under the the majority of these cotton growers are formula in the Uniform Cotton Classing Cotton Statistics and Estimates Act at small businesses under the criteria Fees Act of 1987 for establishing the the same level as in 2002. This is in established by the Small Business producer’s classification fee so that the accordance with the formula provided Administration (13 CFR 121.601). producer’s fee is based on the prevailing in the Uniform Cotton Classing Fees Act Continuing the user fee at the 2002 crop method of classification requested by of 1987. The 2002 user fee for this level as stated will not significantly producers during the previous year. HVI classification service was $1.45 per bale. affect small businesses as defined in the classing was the prevailing method of This final rule would maintain the fee RFA because: cotton classification requested by for the 2003 crop at $1.45 per bale. The (1) The fee represents a very small producers in 2002. Therefore, the 2003 fee and the existing reserve are portion of the cost-per-unit currently producer’s user fee for classification sufficient to cover the costs of providing borne by those entities utilizing the service is based on the 2002 base fee for classification services, including costs services. (The 2002 user fee for HVI classification. for administration and supervision. classification services was $1.45 per The fee was calculated by applying EFFECTIVE DATES: July 1, 2003. bale; the fee for the 2003 crop will be the formula specified in the Uniform
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Cotton Classing Fees Act of 1987, as Growers or their designated agents DEPARTMENT OF AGRICULTURE amended by Public Law 102–237. The receiving classification data would 2002 base fee for HVI classification continue to incur no additional fees if Agricultural Marketing Service exclusive of adjustments, as provided by only one method of receiving the Act, was $2.28 per bale. An increase classification data was requested. The 7 CFR Part 1205 of .84 percent, or 2 cents per bale, fee in § 28.910 (b) for an owner [Doc. # CN–03–002] increase due to the implicit price receiving classification data from the deflator of the gross domestic product central database would remain at 5 Cotton Board Rules and Regulations: added to the $2.28 would result in a cents per bale, and the minimum charge Adjusting Supplemental Assessment 2003 base fee of $2.30 per bale. The of $5.00 for services provided per on Imports, (2003 Amendments) formula in the Act provides for the use monthly billing period would remain of the percentage change in the implicit the same. The provisions of § 28.910 (c) AGENCY: Agricultural Marketing Service, price deflator of the gross national concerning the fee for new classification USDA. product (as indexed for the most recent memoranda issued from the central ACTION: Final rule. 12-month period for which statistics are database for the business convenience of SUMMARY: available). However, gross national The Agricultural Marketing an owner without reclassification of the Service (AMS) is amending the Cotton product has been replaced by gross cotton will remain the same. domestic product by the Department of Board Rules and Regulations by The fee for review classification in Commerce as a more appropriate lowering the value assigned to imported § 28.911 would be maintained at $1.45 measure for the short-term monitoring cotton for the purpose of calculating per bale. and analysis of the U.S. economy. supplemental assessments collected for use by the Cotton Research and The number of bales to be classed by The fee for returning samples after Promotion Program. An adjustment is the United States Department of classification in § 28.911 would remain required on an annual basis to ensure Agriculture from the 2003 crop is at 40 cents per sample. that the assessments collected on estimated at 16,793,610 bales. The 2003 List of Subjects in 7 CFR Part 28 imported cotton and the cotton content base fee was decreased 15 percent based of imported products remain similar to on the estimated number of bales to be Administrative practice and those paid on domestically produced classed (1 percent for every 100,000 procedure, Cotton, Cotton samples, cotton. bales or portion thereof above the base Grades, Market news, Reporting and of 12,500,000, limited to a maximum record keeping requirements, Standards, EFFECTIVE DATE: June 23, 2003. adjustment of 15 percent). This Staples, Testing, Warehouses. FOR FURTHER INFORMATION CONTACT: percentage factor amounts to a 35 cents Whitney Rick, Chief, Research and per bale reduction and was subtracted For the reasons set forth in the Promotion Staff, Cotton Program, AMS, from the 2003 base fee of $2.30 per bale, preamble, 7 CFR Part 28 is amended as USDA, Stop 0224, 1400 Independence resulting in a fee of $1.95 per bale. follows: Ave., SW., Washington, DC 20250–0224, With a fee of $1.95 per bale, the PART 28—[AMENDED] telephone (202) 720–2259, facsimile projected operating reserve would be (202) 690–1718, or email at 51.09 percent. The Act specifies that the [email protected]. ■ 1. The authority citation for 7 CFR Part Secretary shall not establish a fee SUPPLEMENTARY INFORMATION: which, when combined with other 28, Subpart D, continues to read as sources of revenue, will result in a follows: Executive Order 12866 projected operating reserve of more than Authority: 7 U.S.C. 471–476. The Office of Management and Budget 25 percent. Accordingly, the fee of $1.95 ■ has waived the review process required must be reduced by 50 cents per bale, 2. In § 28.909, paragraph (b) is revised to read as follows: by Executive Order 12866 for this to $1.45 per bale, to provide an ending action. accumulated operating reserve for the § 28.909 Costs. fiscal year of 25 percent of the projected Executive Order 12988 * * * * * cost of operating the program. This This rule has been reviewed under would establish the 2003 season fee at (b) The cost of High Volume Executive Order 12988, Civil Justice $1.45 per bale. Instrument (HVI) cotton classification Reform. It is not intended to have Accordingly, § 28.909, paragraph (b) service to producers is $1.45 per bale. retroactive effect. This rule would not would be revised to reflect the * * * * * preempt any state or local laws, continuation of the HVI classification regulations, or policies, unless they ■ 3. In § 28.911, the last sentence of fee at $1.45 per bale. present an irreconcilable conflict with paragraph (a) is revised to read as As provided for in the Uniform Cotton this rule. Classing Fees Act of 1987, as amended, follows: The Cotton Research and Promotion a 5 cent per bale discount would § 28.911 Review classification. Act provides that administrative continue to be applied to voluntary proceedings must be exhausted before centralized billing and collecting agents (a) *** The fee for review parties may file suit in court. Under as specified in § 28.909 (c). classification is $1.45 per bale. section 12 of the Act, any person subject Growers or their designated agents * * * * * to an order may file with the Secretary receiving classification data would a petition stating that the order, any Dated: May 16, 2003. continue to incur no additional fees if provision of the plan, or any obligation only one method of receiving A.J. Yates, imposed in connection with the order is classification data was requested. The Administrator, Agricultural Marketing not in accordance with law and fee for each additional method of Service. requesting a modification of the order or receiving classification data in § 28.910 [FR Doc. 03–12806 Filed 5–21–03; 8:45 am] to be exempted therefrom. Such person would remain at 5 cents per bale. BILLING CODE 3410–02–P is afforded the opportunity for a hearing
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on the petition. After the hearing, the authorized changes in the funding average price received by farmers for Secretary would rule on the petition. procedures for the Cotton Research and Upland cotton during the calendar year The Act provides that the District Court Promotion Program. 2001 which was $0.382 per pound and of the United States in any district in These provisions are: (1) The multiplying by the conversion factor which the person is an inhabitant, or assessment of imported cotton and 2.2046. Using the Average Weighted has his principal place of business, has cotton products; and (2) termination of Price Received by U.S. farmers for jurisdiction to review the Secretary’s the right of cotton producers to demand Upland cotton for the calendar year ruling, provided a complaint is filed a refund of assessments. 2002, which is $0.35 per pound, the within 20 days from the date of the An amended Cotton Research and new value of imported cotton is $0.7716 entry of ruling. Promotion Order was approved by per kilogram. The amended value is producers and importers voting in a Regulatory Flexibility Act $.0706 per kilogram less than the referendum held July 17–26, 1991, and previous value. Pursuant to requirements set forth in the amended Order was published in An example of the complete the Regulatory Flexibility Act (RFA) (5 the Federal Register on December 10, assessment formula and how the various U.S.C. 601 et seq.) AMS has considered 1991, (56 FR 64470). A proposed rule figures are obtained is as follows: the economic impact of this action on implementing the amended Order was One bale is equal to 500 pounds. small entities and has determined that published in the Federal Register on One kilogram equals 2.2046 pounds. its implementation will not have a December 17, 1991, (56 FR 65450). One pound equals 0.453597 significant economic impact on a Implementing rules were published on kilograms. substantial number of small businesses. July 1 and 2, 1992, (57 FR 29181) and There are an estimated 10,000 (57 FR 29431), respectively. One Dollar per Bale Assessment importers who are presently subject to This rule will decrease the value Converted to Kilograms rules and regulations issued pursuant to assigned to imported cotton in the A 500 pound bale equals 226.8 kg. the Cotton Research and Promotion Cotton Board Rules and Regulations (7 (500 × .453597). Order. This rule would affect importers CFR 1205.510(b)(2)). This value is used $1 per bale assessment equals of cotton and cotton-containing to calculate supplemental assessments $0.002000 per pound (1/500) or products. The majority of these on imported cotton and the cotton $0.004409 per kg. (1/226.8). importers are small businesses under content of imported products. Supplemental Assessment of 5⁄10 of One the criteria established by the Small Supplemental assessments are the Percent of the Value of the Cotton Business Administration. This rule second part of a two-part assessment. Converted to Kilograms would lower the assessments paid by The first part of the assessment is levied the importers under the Cotton Research on the weight of cotton produced or The 2002 calendar year weighted and Promotion Order. Even though the imported at a rate of $1 per bale of average price received by producers for assessment would be lowered, the cotton which is equivalent to 500 Upland cotton is $0.35 per pound or decrease is small and will not pounds or $1 per 226.8 kilograms of $0.7716 per kg. (0.35 × 2.2046). significantly affect small businesses. cotton. Five tenths of one percent of the The current assessment on imported Supplemental assessments are levied average price in kg. equals $0.003858 cotton is $0.00862 per kilogram of at a rate of five-tenths of one percent of per kg. (0.7716 × .005). the value of domestically produced imported cotton. The new assessment is Total Assessment $0.008267, a decrease of $0.000353 or a cotton, imported cotton, and the cotton 4.1 percent decrease. From January content of imported products. The The total assessment per kilogram of through December 2002 approximately agency has adopted the practice of raw cotton is obtained by adding the $1 $24 million was collected. Should the assigning the calendar year weighted per bale equivalent assessment of volume of cotton products imported average price received by U.S. farmers $0.004409 per kg. and the supplemental into the U.S. remain at the same level for Upland cotton to represent the value assessment $0.003858 per kg. which in 2003, one could expect the decreased of imported cotton. This is done so that equals $0.008267 per kg. assessment to generate approximately the assessment on domestically The current assessment on imported $23 million or a 4.1 percent decrease produced cotton and the assessment on cotton is $0.008620 per kilogram of from 2002. imported cotton and the cotton content imported cotton. The amended of imported products remain similar. assessment is $0.008267, a decrease of Paperwork Reduction The source for the average price statistic $0.000353 per kilogram. This decrease In compliance with Office of is ‘‘Agricultural Prices,’’ a publication of reflects the decrease in the Average Management and Budget (OMB) the National Agricultural Statistics Weighted Price of Upland Cotton regulations (5 CFR part 1320), which Service (NASS) of the Department of Received by U.S. Farmers during the implement the Paperwork Reduction Agriculture. Use of the weighted average period January through December 2002. Act (PRA) (44 U.S.C. 3501 et seq.), the price figure in the calculation of Since the value of cotton is the basis information collection requirements supplemental assessments on imported of the supplemental assessment contained in the regulation to be cotton and the cotton content of calculation and the figures shown in the amended have been previously imported products yields an assessment right hand column of the Import approved by OMB and were assigned that approximates assessments paid on Assessment Table 1205.510(b)(3) are a control number 0581–0093. domestically produced cotton in the result of such a calculation, the figures prior calendar year. in this table have been revised. These Background The current value of imported cotton figures indicate the total assessment per The Cotton Research and Promotion as published in the Federal Register (67 kilogram due for each Harmonized Act Amendments of 1990 enacted by FR 36793) on May 28, 2002, for the Tariff Schedule (HTS) number subject to Congress under Subtitle G of Title XIX purpose of calculating supplemental assessment. of the Food, Agriculture, Conservation assessments on imported cotton is A proposed rule with request for and Trade Act of 1990 on November 28, $.8422 per kilogram. This number was comments was published in the Federal 1990, contained two provisions that calculated using the annual weighted Register (68 FR 12310) on March 14,
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2003. No comments were received IMPORT ASSESSMENT TABLE— IMPORT ASSESSMENT TABLE— during the period (March 14 through Continued Continued April 14, 2003). [Raw Cotton Fiber] [Raw Cotton Fiber] List of Subjects in 7 CFR Part 1205 HTS No. Conv. fact. Cents/kg. HTS No. Conv. fact. Cents/kg. Advertising, Agricultural research, Cotton, Marketing agreements, 5205310000 .... 1.1111 0.9185 5208418000 .... 1.1455 0.9470 Reporting and recordkeeping 5205320000 .... 1.1111 0.9185 5208421000 .... 1.1455 0.9470 requirements. 5205330000 .... 1.1111 0.9185 5208423000 .... 1.1455 0.9470 ■ For the reasons set forth in the 5205340000 .... 1.1111 0.9185 5208424000 .... 1.1455 0.9470 5205410020 .... 1.1111 0.9185 5208425000 .... 1.1455 0.9470 preamble, 7 CFR Part 1205 is amended 5205410090 .... 1.1111 0.9185 5208430000 .... 1.1455 0.9470 as follows: 5205420020 .... 1.1111 0.9185 5208492000 .... 1.1455 0.9470 5205420090 .... 1.1111 0.9185 5208494020 .... 1.1455 0.9470 PART 1205—COTTON RESEARCH 5205440020 .... 1.1111 0.9185 5208494090 .... 1.1455 0.9470 AND PROMOTION 5205440090 .... 1.1111 0.9185 5208496010 .... 1.1455 0.9470 ■ 1. The authority citation for Part 1205 5206120000 .... 0.5556 0.4593 5208496090 .... 1.1455 0.9470 5206130000 .... 0.5556 0.4593 5208498090 .... 1.1455 0.9470 continues to read as follows: 5206140000 .... 0.5556 0.4593 5208512000 .... 1.1455 0.9470 Authority: 7 U.S.C. 2101–2118. 5206220000 .... 0.5556 0.4593 5208516060 .... 1.1455 0.9470 5206230000 .... 0.5556 0.4593 5208518090 .... 1.1455 0.9470 ■ 2. In § 1205.510, paragraph (b)(2) and 5206240000 .... 0.5556 0.4593 5208523020 .... 1.1455 0.9470 the table in paragraph (b)(3)(ii) are 5206310000 .... 0.5556 0.4593 5208523045 .... 1.1455 0.9470 revised to read as follows: 5207100000 .... 1.1111 0.9185 5208523090 .... 1.1455 0.9470 5207900000 .... 0.5556 0.4593 5208524020 .... 1.1455 0.9470 § 1205.510 Levy of assessments. 5208112020 .... 1.1455 0.9470 5208524045 .... 1.1455 0.9470 * * * * * 5208112040 .... 1.1455 0.9470 5208524065 .... 1.1455 0.9470 (b) * * * 5208112090 .... 1.1455 0.9470 5208525020 .... 1.1455 0.9470 (2) The 12-month average of monthly 5208114020 .... 1.1455 0.9470 5208530000 .... 1.1455 0.9470 weighted average prices received by 5208114060 .... 1.1455 0.9470 5208592025 .... 1.1455 0.9470 U.S. farmers will be calculated 5208114090 .... 1.1455 0.9470 5208592095 .... 1.1455 0.9470 5208118090 .... 1.1455 0.9470 5208594090 .... 1.1455 0.9470 annually. Such weighted average will be 5208124020 .... 1.1455 0.9470 5208596090 .... 1.1455 0.9470 used as the value of imported cotton for 5208124040 .... 1.1455 0.9470 5209110020 .... 1.1455 0.9470 the purpose of levying the supplemental 5208124090 .... 1.1455 0.9470 5209110035 .... 1.1455 0.9470 assessment on imported cotton and will 5208126020 .... 1.1455 0.9470 5209110090 .... 1.1455 0.9470 be expressed in kilograms. The value of 5208126040 .... 1.1455 0.9470 5209120020 .... 1.1455 0.9470 imported cotton for the purpose of 5208126060 .... 1.1455 0.9470 5209120040 .... 1.1455 0.9470 levying this supplemental assessment is 5208126090 .... 1.1455 0.9470 5209190020 .... 1.1455 0.9470 $0.8267 per kilogram. 5208128020 .... 1.1455 0.9470 5209190040 .... 1.1455 0.9470 (3) * * * 5208128090 .... 1.1455 0.9470 5209190060 .... 1.1455 0.9470 (ii) * * * 5208130000 .... 1.1455 0.9470 5209190090 .... 1.1455 0.9470 5208192020 .... 1.1455 0.9470 5209210090 .... 1.1455 0.9470 5208192090 .... 1.1455 0.9470 5209220020 .... 1.1455 0.9470 IMPORT ASSESSMENT TABLE 5208194020 .... 1.1455 0.9470 5209220040 .... 1.1455 0.9470 [Raw Cotton Fiber] 5208194090 .... 1.1455 0.9470 5209290040 .... 1.1455 0.9470 5208196020 .... 1.1455 0.9470 5209290090 .... 1.1455 0.9470 HTS No. Conv. fact. Cents/kg. 5208196090 .... 1.1455 0.9470 5209313000 .... 1.1455 0.9470 5208224040 .... 1.1455 0.9470 5209316020 .... 1.1455 0.9470 5201000500 .... 0 0.8267 5208224090 .... 1.1455 0.9470 5209316035 .... 1.1455 0.9470 5201001200 .... 0 0.8267 5208226020 .... 1.1455 0.9470 5209316050 .... 1.1455 0.9470 5201001400 .... 0 0.8267 5208226060 .... 1.1455 0.9470 5209316090 .... 1.1455 0.9470 5201001800 .... 0 0.8267 5208228020 .... 1.1455 0.9470 5209320020 .... 1.1455 0.9470 5201002200 .... 0 0.8267 5208230000 .... 1.1455 0.9470 5209320040 .... 1.1455 0.9470 5201002400 .... 0 0.8267 5208292020 .... 1.1455 0.9470 5209390020 .... 1.1455 0.9470 5201002800 .... 0 0.8267 5208292090 .... 1.1455 0.9470 5209390040 .... 1.1455 0.9470 5201003400 .... 0 0.8267 5208294090 .... 1.1455 0.9470 5209390060 .... 1.1455 0.9470 5201003800 .... 0 0.8267 5208296090 .... 1.1455 0.9470 5209390080 .... 1.1455 0.9470 5204110000 .... 1.1111 0.9185 5208298020 .... 1.1455 0.9470 5209390090 .... 1.1455 0.9470 5204200000 .... 1.1111 0.9185 5208312000 .... 1.1455 0.9470 5209413000 .... 1.1455 0.9470 5205111000 .... 1.1111 0.9185 5208321000 .... 1.1455 0.9470 5209416020 .... 1.1455 0.9470 5205112000 .... 1.1111 0.9185 5208323020 .... 1.1455 0.9470 5209416040 .... 1.1455 0.9470 5205121000 .... 1.1111 0.9185 5208323040 .... 1.1455 0.9470 5209420020 .... 1.0309 0.8522 5205122000 .... 1.1111 0.9185 5208323090 .... 1.1455 0.9470 5209420040 .... 1.0309 0.8522 5205131000 .... 1.1111 0.9185 5208324020 .... 1.1455 0.9470 5209430030 .... 1.1455 0.9470 5205132000 .... 1.1111 0.9185 5208324040 .... 1.1455 0.9470 5209430050 .... 1.1455 0.9470 5205141000 .... 1.1111 0.9185 5208325020 .... 1.1455 0.9470 5209490020 .... 1.1455 0.9470 5205210020 .... 1.1111 0.9185 5208330000 .... 1.1455 0.9470 5209490090 .... 1.1455 0.9470 5205210090 .... 1.1111 0.9185 5208392020 .... 1.1455 0.9470 5209516035 .... 1.1455 0.9470 5205220020 .... 1.1111 0.9185 5208392090 .... 1.1455 0.9470 5209516050 .... 1.1455 0.9470 5205220090 .... 1.1111 0.9185 5208394090 .... 1.1455 0.9470 5209520020 .... 1.1455 0.9470 5205230020 .... 1.1111 0.9185 5208396090 .... 1.1455 0.9470 5209590025 .... 1.1455 0.9470 5205230090 .... 1.1111 0.9185 5208398020 .... 1.1455 0.9470 5209590040 .... 1.1455 0.9470 5205240020 .... 1.1111 0.9185 5208412000 .... 1.1455 0.9470 5209590090 .... 1.1455 0.9470 5205240090 .... 1.1111 0.9185 5208416000 .... 1.1455 0.9470 5210114020 .... 0.6873 0.5682
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IMPORT ASSESSMENT TABLE— IMPORT ASSESSMENT TABLE— IMPORT ASSESSMENT TABLE— Continued Continued Continued [Raw Cotton Fiber] [Raw Cotton Fiber] [Raw Cotton Fiber]
HTS No. Conv. fact. Cents/kg. HTS No. Conv. fact. Cents/kg. HTS No. Conv. fact. Cents/kg.
5210114040 .... 0.6873 0.5682 5702109020 .... 1.1 0.9094 6006430085 .... 0.1157 0.0956 5210116020 .... 0.6873 0.5682 5702312000 .... 0.0778 0.0643 6006440085 .... 0.1157 0.0956 5210116040 .... 0.6873 0.5682 5702411000 .... 0.0722 0.0597 6101200010 .... 1.0094 0.8345 5210116060 .... 0.6873 0.5682 5702412000 .... 0.0778 0.0643 6101200020 .... 1.0094 0.8345 5210118020 .... 0.6873 0.5682 5702421000 .... 0.0778 0.0643 6102200010 .... 1.0094 0.8345 5210120000 .... 0.6873 0.5682 5702913000 .... 0.0889 0.0735 6102200020 .... 1.0094 0.8345 5210192090 .... 0.6873 0.5682 5702991010 .... 1.1111 0.9185 6103421020 .... 0.8806 0.7280 5210214040 .... 0.6873 0.5682 5702991090 .... 1.1111 0.9185 6103421040 .... 0.8806 0.7280 5210216020 .... 0.6873 0.5682 5703900000 .... 0.4489 0.3711 6103421050 .... 0.8806 0.7280 5210216060 .... 0.6873 0.5682 5801210000 .... 1.1455 0.9470 6103421070 .... 0.8806 0.7280 5210218020 .... 0.6873 0.5682 5801230000 .... 1.1455 0.9470 6103431520 .... 0.2516 0.2080 5210314020 .... 0.6873 0.5682 5801250010 .... 1.1455 0.9470 6103431540 .... 0.2516 0.2080 5210314040 .... 0.6873 0.5682 5801250020 .... 1.1455 0.9470 6103431550 .... 0.2516 0.2080 5210316020 .... 0.6873 0.5682 5801260020 .... 1.1455 0.9470 6103431570 .... 0.2516 0.2080 5210318020 .... 0.6873 0.5682 5802190000 .... 1.1455 0.9470 6104220040 .... 0.9002 0.7442 5210414000 .... 0.6873 0.5682 5802300030 .... 0.5727 0.4735 6104220060 .... 0.9002 0.7442 5210416000 .... 0.6873 0.5682 5804291000 .... 1.1455 0.9470 6104320000 .... 0.9207 0.7611 5210418000 .... 0.6873 0.5682 5806200010 .... 0.3534 0.2922 6104420010 .... 0.9002 0.7442 5210498090 .... 0.6873 0.5682 5806200090 .... 0.3534 0.2922 6104420020 .... 0.9002 0.7442 5210514040 .... 0.6873 0.5682 5806310000 .... 1.1455 0.9470 6104520010 .... 0.9312 0.7698 5210516020 .... 0.6873 0.5682 5806400000 .... 0.4296 0.3552 6104520020 .... 0.9312 0.7698 5210516040 .... 0.6873 0.5682 5808107000 .... 0.5727 0.4735 6104622006 .... 0.8806 0.7280 5210516060 .... 0.6873 0.5682 5808900010 .... 0.5727 0.4735 6104622011 .... 0.8806 0.7280 5211110090 .... 0.6873 0.5682 5811002000 .... 1.1455 0.9470 6104622016 .... 0.8806 0.7280 5211120020 .... 0.6873 0.5682 6001106000 .... 1.1455 0.9470 6104622021 .... 0.8806 0.7280 5211190020 .... 0.6873 0.5682 6001210000 .... 0.8591 0.7102 6104622026 .... 0.8806 0.7280 5211190060 .... 0.6873 0.5682 6001220000 .... 0.2864 0.2368 6104622028 .... 0.8806 0.7280 5211210025 .... 0.6873 0.5682 6001910010 .... 0.8591 0.7102 6104622030 .... 0.8806 0.7280 5211210035 .... 0.4165 0.3443 6001910020 .... 0.8591 0.7102 6104622060 .... 0.8806 0.7280 5211210050 .... 0.6873 0.5682 6001920020 .... 0.2864 0.2368 6104632006 .... 0.3774 0.3120 5211290090 .... 0.6873 0.5682 6001920030 .... 0.2864 0.2368 6104632011 .... 0.3774 0.3120 5211320020 .... 0.6873 0.5682 6001920040 .... 0.2864 0.2368 6104632026 .... 0.3774 0.3120 5211390040 .... 0.6873 0.5682 6003203000 .... 0.8681 0.7177 6104632028 .... 0.3774 0.3120 5211390060 .... 0.6873 0.5682 6003306000 .... 0.2894 0.2392 6104632030 .... 0.3774 0.3120 5211490020 .... 0.6873 0.5682 6003406000 .... 0.2894 0.2392 6104632060 .... 0.3774 0.3120 5211490090 .... 0.6873 0.5682 6005210000 .... 0.8681 0.7177 6104692030 .... 0.3858 0.3189 5211590025 .... 0.6873 0.5682 6005220000 .... 0.8681 0.7177 6105100010 .... 0.985 0.8143 5212146090 .... 0.9164 0.7576 6005230000 .... 0.8681 0.7177 6105100020 .... 0.985 0.8143 5212156020 .... 0.9164 0.7576 6005240000 .... 0.8681 0.7177 6105100030 .... 0.985 0.8143 5212216090 .... 0.9164 0.7576 6005310010 .... 0.2894 0.2392 6105202010 .... 0.3078 0.2545 5509530030 .... 0.5556 0.4593 6005320010 .... 0.2894 0.2392 6105202030 .... 0.3078 0.2545 5509530060 .... 0.5556 0.4593 6005330010 .... 0.2894 0.2392 6106100010 .... 0.985 0.8143 5513110020 .... 0.4009 0.3314 6005340010 .... 0.2894 0.2392 6106100020 .... 0.985 0.8143 5513110040 .... 0.4009 0.3314 6005410010 .... 0.2894 0.2392 6106100030 .... 0.985 0.8143 5513110060 .... 0.4009 0.3314 6005420010 .... 0.2894 0.2392 6106202010 .... 0.3078 0.2545 5513110090 .... 0.4009 0.3314 6005430010 .... 0.2894 0.2392 6106202030 .... 0.3078 0.2545 5513120000 .... 0.4009 0.3314 6005440010 .... 0.2894 0.2392 6107110010 .... 1.1322 0.9360 5513130020 .... 0.4009 0.3314 6005310080 .... 0.2894 0.2392 6107110020 .... 1.1322 0.9360 5513210020 .... 0.4009 0.3314 6005320080 .... 0.2894 0.2392 6107120010 .... 0.5032 0.4160 5513310000 .... 0.4009 0.3314 6005330080 .... 0.2894 0.2392 6107210010 .... 0.8806 0.7280 5514120020 .... 0.4009 0.3314 6005340080 .... 0.2894 0.2392 6107220015 .... 0.3774 0.3120 5516420060 .... 0.4009 0.3314 6005410080 .... 0.2894 0.2392 6107220025 .... 0.3774 0.3120 5516910060 .... 0.4009 0.3314 6005420080 .... 0.2894 0.2392 6107910040 .... 1.2581 1.0401 5516930090 .... 0.4009 0.3314 6005430080 .... 0.2894 0.2392 6108210010 .... 1.2445 1.0288 5601210010 .... 1.1455 0.9470 6005440080 .... 0.2894 0.2392 6108210020 .... 1.2445 1.0288 5601210090 .... 1.1455 0.9470 6006211000 .... 1.1574 0.9568 6108310010 .... 1.1201 0.9260 5601300000 .... 1.1455 0.9470 6006221000 .... 1.1574 0.9568 6108310020 .... 1.1201 0.9260 5602109090 .... 0.5727 0.4735 6006231000 .... 1.1574 0.9568 6108320010 .... 0.2489 0.2058 5602290000 .... 1.1455 0.9470 6006241000 .... 1.1574 0.9568 6108320015 .... 0.2489 0.2058 5602906000 .... 0.526 0.4348 6006310040 .... 0.1157 0.0956 6108320025 .... 0.2489 0.2058 5604900000 .... 0.5556 0.4593 6006320040 .... 0.1157 0.0956 6108910005 .... 1.2445 1.0288 5607909000 .... 0.8889 0.7349 6006330040 .... 0.1157 0.0956 6108910015 .... 1.2445 1.0288 5608901000 .... 1.1111 0.9185 6006340040 .... 0.1157 0.0956 6108910025 .... 1.2445 1.0288 5608902300 .... 1.1111 0.9185 6006310080 .... 0.1157 0.0956 6108910030 .... 1.2445 1.0288 5609001000 .... 1.1111 0.9185 6006320080 .... 0.1157 0.0956 6108920030 .... 0.2489 0.2058 5609004000 .... 0.5556 0.4593 6006330080 .... 0.1157 0.0956 6109100005 .... 0.9956 0.8231 5701104000 .... 0.0556 0.0460 6006340080 .... 0.1157 0.0956 6109100007 .... 0.9956 0.8231 5701109000 .... 0.1111 0.0918 6006410085 .... 0.1157 0.0956 6109100009 .... 0.9956 0.8231 5701901010 .... 1.0444 0.8634 6006420085 .... 0.1157 0.0956 6109100012 .... 0.9956 0.8231
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IMPORT ASSESSMENT TABLE— IMPORT ASSESSMENT TABLE— IMPORT ASSESSMENT TABLE— Continued Continued Continued [Raw Cotton Fiber] [Raw Cotton Fiber] [Raw Cotton Fiber]
HTS No. Conv. fact. Cents/kg. HTS No. Conv. fact. Cents/kg. HTS No. Conv. fact. Cents/kg.
6109100014 .... 0.9956 0.8231 6116926440 .... 1.0965 0.9065 6204223030 .... 1.0413 0.8608 6109100018 .... 0.9956 0.8231 6116928800 .... 1.0965 0.9065 6204223040 .... 1.0413 0.8608 6109100023 .... 0.9956 0.8231 6117809510 .... 0.9747 0.8058 6204223050 .... 1.0413 0.8608 6109100027 .... 0.9956 0.8231 6117809540 .... 0.3655 0.3022 6204223060 .... 1.0413 0.8608 6109100037 .... 0.9956 0.8231 6201121000 .... 0.948 0.7837 6204223065 .... 1.0413 0.8608 6109100040 .... 0.9956 0.8231 6201122010 .... 0.8953 0.7401 6204292040 .... 0.3254 0.2690 6109100045 .... 0.9956 0.8231 6201122050 .... 0.6847 0.5660 6204322010 .... 1.2366 1.0223 6109100060 .... 0.9956 0.8231 6201122060 .... 0.6847 0.5660 6204322030 .... 1.0413 0.8608 6109100065 .... 0.9956 0.8231 6201134030 .... 0.2633 0.2177 6204322040 .... 1.0413 0.8608 6109100070 .... 0.9956 0.8231 6201921000 .... 0.9267 0.7661 6204423010 .... 1.2728 1.0522 6109901007 .... 0.3111 0.2572 6201921500 .... 1.1583 0.9576 6204423030 .... 0.9546 0.7892 6109901009 .... 0.3111 0.2572 6201922010 .... 1.0296 0.8512 6204423040 .... 0.9546 0.7892 6109901049 .... 0.3111 0.2572 6201922021 .... 1.2871 1.0640 6204423050 .... 0.9546 0.7892 6109901050 .... 0.3111 0.2572 6201922031 .... 1.2871 1.0640 6204423060 .... 0.9546 0.7892 6109901060 .... 0.3111 0.2572 6201922041 .... 1.2871 1.0640 6204522010 .... 1.2654 1.0461 6109901065 .... 0.3111 0.2572 6201922051 .... 1.0296 0.8512 6204522030 .... 1.2654 1.0461 6109901090 .... 0.3111 0.2572 6201922061 .... 1.0296 0.8512 6204522040 .... 1.2654 1.0461 6110202005 .... 1.1837 0.9786 6201931000 .... 0.3089 0.2554 6204522070 .... 1.0656 0.8809 6110202010 .... 1.1837 0.9786 6201933511 .... 0.2574 0.2128 6204522080 .... 1.0656 0.8809 6110202015 .... 1.1837 0.9786 6201933521 .... 0.2574 0.2128 6204533010 .... 0.2664 0.2202 6110202020 .... 1.1837 0.9786 6201999060 .... 0.2574 0.2128 6204594060 .... 0.2664 0.2202 6110202025 .... 1.1837 0.9786 6202121000 .... 0.9372 0.7748 6204622010 .... 0.9961 0.8235 6110202030 .... 1.1837 0.9786 6202122010 .... 1.1064 0.9147 6204622025 .... 0.9961 0.8235 6110202035 .... 1.1837 0.9786 6202122025 .... 1.3017 1.0761 6204622050 .... 0.9961 0.8235 6110202040 .... 1.1574 0.9568 6202122050 .... 0.8461 0.6995 6204624005 .... 1.2451 1.0293 6110202045 .... 1.1574 0.9568 6202122060 .... 0.8461 0.6995 6204624010 .... 1.2451 1.0293 6110202065 .... 1.1574 0.9568 6202134005 .... 0.2664 0.2202 6204624020 .... 0.9961 0.8235 6110202075 .... 1.1574 0.9568 6202134020 .... 0.333 0.2753 6204624025 .... 1.2451 1.0293 6110909022 .... 0.263 0.2174 6202921000 .... 1.0413 0.8608 6204624030 .... 1.2451 1.0293 6110909024 .... 0.263 0.2174 6202921500 .... 1.0413 0.8608 6204624035 .... 1.2451 1.0293 6110909030 .... 0.3946 0.3262 6202922026 .... 1.3017 1.0761 6204624040 .... 1.2451 1.0293 6110909040 .... 0.263 0.2174 6202922061 .... 1.0413 0.8608 6204624045 .... 0.9961 0.8235 6110909042 .... 0.263 0.2174 6202922071 .... 1.0413 0.8608 6204624050 .... 0.9961 0.8235 6111201000 .... 1.2581 1.0401 6202931000 .... 0.3124 0.2583 6204624055 .... 0.9854 0.8146 6111202000 .... 1.2581 1.0401 6202935011 .... 0.2603 0.2152 6204624060 .... 0.9854 0.8146 6111203000 .... 1.0064 0.8320 6202935021 .... 0.2603 0.2152 6204624065 .... 0.9854 0.8146 6111205000 .... 1.0064 0.8320 6203122010 .... 0.1302 0.1076 6204633510 .... 0.2546 0.2105 6111206010 .... 1.0064 0.8320 6203221000 .... 1.3017 1.0761 6204633530 .... 0.2546 0.2105 6111206020 .... 1.0064 0.8320 6203322010 .... 1.2366 1.0223 6204633532 .... 0.2437 0.2015 6111206030 .... 1.0064 0.8320 6203322040 .... 1.2366 1.0223 6204633540 .... 0.2437 0.2015 6111206040 .... 1.0064 0.8320 6203332010 .... 0.1302 0.1076 6204692510 .... 0.249 0.2058 6111305020 .... 0.2516 0.2080 6203392010 .... 1.1715 0.9685 6204692540 .... 0.2437 0.2015 6111305040 .... 0.2516 0.2080 6203399060 .... 0.2603 0.2152 6204699044 .... 0.249 0.2058 6112110050 .... 0.7548 0.6240 6203422010 .... 0.9961 0.8235 6204699046 .... 0.249 0.2058 6112120010 .... 0.2516 0.2080 6203422025 .... 0.9961 0.8235 6204699050 .... 0.249 0.2058 6112120030 .... 0.2516 0.2080 6203422050 .... 0.9961 0.8235 6205202015 .... 0.9961 0.8235 6112120040 .... 0.2516 0.2080 6203422090 .... 0.9961 0.8235 6205202020 .... 0.9961 0.8235 6112120050 .... 0.2516 0.2080 6203424005 .... 1.2451 1.0293 6205202025 .... 0.9961 0.8235 6112120060 .... 0.2516 0.2080 6203424010 .... 1.2451 1.0293 6205202030 .... 0.9961 0.8235 6112390010 .... 1.1322 0.9360 6203424015 .... 0.9961 0.8235 6205202035 .... 1.1206 0.9264 6112490010 .... 0.9435 0.7800 6203424020 .... 1.2451 1.0293 6205202046 .... 0.9961 0.8235 6114200005 .... 0.9002 0.7442 6203424025 .... 1.2451 1.0293 6205202050 .... 0.9961 0.8235 6114200010 .... 0.9002 0.7442 6203424030 .... 1.2451 1.0293 6205202060 .... 0.9961 0.8235 6114200015 .... 0.9002 0.7442 6203424035 .... 1.2451 1.0293 6205202065 .... 0.9961 0.8235 6114200020 .... 1.286 1.0631 6203424040 .... 0.9961 0.8235 6205202070 .... 0.9961 0.8235 6114200040 .... 0.9002 0.7442 6203424045 .... 0.9961 0.8235 6205202075 .... 0.9961 0.8235 6114200046 .... 0.9002 0.7442 6203424050 .... 0.9238 0.7637 6205302010 .... 0.3113 0.2574 6114200052 .... 0.9002 0.7442 6203424055 .... 0.9238 0.7637 6205302030 .... 0.3113 0.2574 6114200060 .... 0.9002 0.7442 6203424060 .... 0.9238 0.7637 6205302040 .... 0.3113 0.2574 6114301010 .... 0.2572 0.2126 6203431500 .... 0.1245 0.1029 6205302050 .... 0.3113 0.2574 6114301020 .... 0.2572 0.2126 6203434010 .... 0.1232 0.1018 6505302070 .... 0.3113 0.2574 6114303030 .... 0.2572 0.2126 6203434020 .... 0.1232 0.1018 6205302080 .... 0.3113 0.2574 6115198010 .... 1.0417 0.8612 6203434030 .... 0.1232 0.1018 6206100040 .... 0.1245 0.1029 6115929000 .... 1.0417 0.8612 6203434040 .... 0.1232 0.1018 6206303010 .... 0.9961 0.8235 6115936020 .... 0.2315 0.1914 6203498045 .... 0.249 0.2058 6206303020 .... 0.9961 0.8235 6116101300 .... 0.3655 0.3022 6204132010 .... 0.1302 0.1076 6206303030 .... 0.9961 0.8235 6116101720 .... 0.8528 0.7050 6204192000 .... 0.1302 0.1076 6206303040 .... 0.9961 0.8235 6116926420 .... 1.0965 0.9065 6204198090 .... 0.2603 0.2152 6206303050 .... 0.9961 0.8235 6116926430 .... 1.2183 1.0072 6204221000 .... 1.3017 1.0761 6206303060 .... 0.9961 0.8235
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IMPORT ASSESSMENT TABLE— IMPORT ASSESSMENT TABLE— NUCLEAR REGULATORY Continued Continued COMMISSION [Raw Cotton Fiber] [Raw Cotton Fiber] 10 CFR Part 20 HTS No. Conv. fact. Cents/kg. HTS No. Conv. fact. Cents/kg. RIN 3150–AH07 6206403010 .... 0.3113 0.2574 6301300020 .... 0.8766 0.7247 6206403030 .... 0.3113 0.2574 6302100005 .... 1.1689 0.9663 Radiation Exposure Reports: Labeling 6206900040 .... 0.249 0.2058 6302100008 .... 1.1689 0.9663 Personal Information, Confirmation of 6207110000 .... 1.0852 0.8971 6302100015 .... 1.1689 0.9663 Effective Date 6207199010 .... 0.3617 0.2990 6302215010 .... 0.8182 0.6764 6207210030 .... 1.1085 0.9164 6207220000 .... 0.3695 0.3055 6302215020 .... 0.8182 0.6764 AGENCY: Nuclear Regulatory 6207911000 .... 1.1455 0.9470 6302217010 .... 1.1689 0.9663 Commission. 6207913010 .... 1.1455 0.9470 6302217020 .... 1.1689 0.9663 ACTION: Direct final rule: Confirmation 6207913020 .... 1.1455 0.9470 6302217050 .... 1.1689 0.9663 6208210010 .... 1.0583 0.8749 6302219010 .... 0.8182 0.6764 of effective date. 6208210020 .... 1.0583 0.8749 6302219020 .... 0.8182 0.6764 6208220000 .... 0.1245 0.1029 6302219050 .... 0.8182 0.6764 SUMMARY: The Nuclear Regulatory 6208911010 .... 1.1455 0.9470 6302222010 .... 0.4091 0.3382 Commission (NRC) is confirming the 6208911020 .... 1.1455 0.9470 6302222020 .... 0.4091 0.3382 effective date of June 9, 2003, for the 6208913010 .... 1.1455 0.9470 6302313010 .... 0.8182 0.6764 direct final rule that was published in 6209201000 .... 1.1577 0.9571 6302313050 .... 1.1689 0.9663 the Federal Register on March 25, 2003 6209203000 .... 0.9749 0.8059 6209205030 .... 0.9749 0.8059 6302315050 .... 0.8182 0.6764 (68 FR 14307). This direct final rule 6209205035 .... 0.9749 0.8059 6302317010 .... 1.1689 0.9663 amended the NRC’s regulations on 6209205040 .... 1.2186 1.0074 6302317020 .... 1.1689 0.9663 written event reports submitted to the 6209205045 .... 0.9749 0.8059 6302317040 .... 1.1689 0.9663 NRC that contain personal information. 6209205050 .... 0.9749 0.8059 6302317050 .... 1.1689 0.9663 6209303020 .... 0.2463 0.2036 6302319010 .... 0.8182 0.6764 DATES: The effective date of June 9, 6209303040 .... 0.2463 0.2036 6302319040 .... 0.8182 0.6764 2003, is confirmed for this direct final 6210109010 .... 0.2291 0.1894 6302319050 .... 0.8182 0.6764 rule. 6210403000 .... 0.0391 0.0323 6302322020 .... 0.4091 0.3382 ADDRESSES: Documents related to this 6210405020 .... 0.4556 0.3766 6302322040 .... 0.4091 0.3382 6211111010 .... 0.1273 0.1052 rulemaking, including comments 6302402010 .... 0.9935 0.8213 6211111020 .... 0.1273 0.1052 received, may be examined at the NRC 6302511000 .... 0.5844 0.4831 6211118010 .... 1.1455 0.9470 Public Document Room, Room O–1F23, 6211118020 .... 1.1455 0.9470 6302512000 .... 0.8766 0.7247 11555 Rockville Pike, Rockville, MD. 6211320007 .... 0.8461 0.6995 6302513000 .... 0.5844 0.4831 These same documents may also be 6211320010 .... 1.0413 0.8608 6302514000 .... 0.8182 0.6764 viewed and downloaded electronically 6211320015 .... 1.0413 0.8608 6302600010 .... 1.1689 0.9663 via the rulemaking Web site (http:// 6211320030 .... 0.9763 0.8071 6302600020 .... 1.052 0.8697 ruleforum.llnl.gov). For information 6211320060 .... 0.9763 0.8071 6302600030 .... 1.052 0.8697 about the interactive rulemaking Web 6211320070 .... 0.9763 0.8071 6302910005 .... 1.052 0.8697 6211330010 .... 0.3254 0.2690 site, contact Ms. Carol Gallagher at (301) 6302910015 .... 1.1689 0.9663 415–5905; e-mail [email protected]. 6211330030 .... 0.3905 0.3228 6302910025 .... 1.052 0.8697 6211330035 .... 0.3905 0.3228 6302910035 .... 1.052 0.8697 FOR FURTHER INFORMATION CONTACT: 6211330040 .... 0.3905 0.3228 6302910045 .... 1.052 0.8697 6211420010 .... 1.0413 0.8608 Merri Horn, Office of Nuclear Material 6211420020 .... 1.0413 0.8608 6302910050 .... 1.052 0.8697 Safety and Safeguards, U.S. Nuclear 6211420025 .... 1.1715 0.9685 6302910060 .... 1.052 0.8697 Regulatory Commission, Washington, 6211420060 .... 1.0413 0.8608 6303110000 .... 0.9448 0.7811 DC 20555, telephone (301) 415–8126 (e- 6211420070 .... 1.1715 0.9685 6303910010 .... 0.6429 0.5315 mail: [email protected].). 6211430010 .... 0.2603 0.2152 6303910020 .... 0.6429 0.5315 6211430030 .... 0.2603 0.2152 6304111000 .... 1.0629 0.8787 SUPPLEMENTARY INFORMATION: On March 6211430040 .... 0.2603 0.2152 6304190500 .... 1.052 0.8697 25, 2003 (68 FR 14307), the NRC 6211430050 .... 0.2603 0.2152 6304191000 .... 1.1689 0.9663 published in the Federal Register a 6211430060 .... 0.2603 0.2152 6304191500 .... 0.4091 0.3382 direct final rule amending its 6211430066 .... 0.2603 0.2152 6304192000 .... 0.4091 0.3382 regulations in 10 CFR part 20 requiring 6212105020 .... 0.2412 0.1994 6304910020 .... 0.9351 0.7730 licensees to clearly label any section of 6212109010 .... 0.9646 0.7974 6304920000 .... 0.9351 0.7730 the written event report containing 6212109020 .... 0.2412 0.1994 personal information ‘‘Privacy Act 6212200020 .... 0.3014 0.2492 6505901540 .... 0.181 0.1496 6212900030 .... 0.1929 0.1595 6505902060 .... 0.9935 0.8213 Information: Not for Public Disclosure.’’ 6213201000 .... 1.1809 0.9763 6505902545 .... 0.5844 0.4831 In the direct final rule, NRC stated that 6213202000 .... 1.0628 0.8786 if no significant adverse comments were 6213901000 .... 0.4724 0.3905 * * * * * received, the direct final rule would 6214900010 .... 0.9043 0.7476 become final on June 9, 2003. The NRC 6216000800 .... 0.2351 0.1944 Dated: May 16, 2003. did not receive any comments that 6216001720 .... 0.6752 0.5582 Kenneth C. Clayton, warranted withdrawal of the direct final 6216003800 .... 1.2058 0.9968 Acting Administrator, Agricultural Marketing rule. Therefore, this rule will become 6216004100 .... 1.2058 0.9968 Service. effective as scheduled. 6217109510 .... 1.0182 0.8417 6217109530 .... 0.2546 0.2105 [FR Doc. 03–12802 Filed 5–21–03; 8:45 am] Dated at Rockville, Maryland, this 16th day 6301300010 .... 0.8766 0.7247 BILLING CODE 3410–02–P of May, 2003.
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For the Nuclear Regulatory Commission. II. Conclusion List of Subjects in 21 CFR Part 573 Michael T. Lesar, FDA has evaluated data submitted by Animal feeds, Food additives. Chief, Rules and Directives Branch, Division the sponsor of the petition and ■ Therefore, under the Federal Food, of Administrative Services, Office of concludes that the data establish the Administration. Drug, and Cosmetic Act and under safety and functionality of feed-grade [FR Doc. 03–12847 Filed 5–21–03; 8:45 am] authority delegated to the Commissioner biuret for use as proposed. of Food and Drugs and redelegated to the BILLING CODE 7590–01–P III. Public Disclosure Center for Veterinary Medicine, 21 CFR part 573 is amended as follows: In accordance with § 571.1(h) (21 CFR 571.1(h)), the petition and the PART 573—FOOD ADDITIVES DEPARTMENT OF HEALTH AND documents that FDA considered and PERMITTED IN FEED AND DRINKING HUMAN SERVICES relied upon in reaching its decision to WATER OF ANIMALS approve the petition are available for Food and Drug Administration ■ inspection at the Center for Veterinary 1. The authority citation for 21 CFR part 573 continues to read as follows: 21 CFR Part 573 Medicine by appointment with the information contact person listed above. Authority: 21 U.S.C. 321, 342, 348. As provided in § 571.1(h), the agency § 573.220 Feed-grade biuret. [Docket No. 02F–0327] will delete from the documents any ■ 2. Section 573.220 Feed-grade biuret is Food Additive Permitted in Feed and materials that are not available for public disclosure before making the amended by removing paragraph Drinking Water of Animals; Feed-Grade (c)(1)(iii). Biuret documents available for inspection. IV. Environmental Impact Dated: May 14, 2003. AGENCY: Food and Drug Administration, Stephen F. Sundlof, HHS. The agency has determined under 21 Director, Center for Veterinary Medicine. ACTION: Final rule. CFR 25.32(r) that this action is of a type [FR Doc. 03–12785 Filed 5–21–03; 8:45 am] that does not individually or BILLING CODE 4160–01–S SUMMARY: The Food and Drug cumulatively have a significant effect on Administration (FDA) is amending the the human environment. Therefore, regulations for food additives to provide neither an environmental assessment for the safe use of feed-grade biuret in nor an environmental impact statement DEPARTMENT OF DEFENSE is required. lactating dairy cattle feed. This action is Office of the Secretary in response to a food additive petition V. Objections and Hearing Requests filed by ADM Alliance Nutrition, Inc. Any person who will be adversely 32 CFR Part 207 DATES: This rule is effective May 22, 2003; written objections and request for affected by this regulation may at any RIN 0790–AH02 hearing should be submitted by July 23, time on or before July 23, 2003, file with 2003. the Dockets Management Branch Implementation of Section 740 of the (address above) written objections Wendell H. Ford Aviation Investment ADDRESSES: Submit written objections to thereto. Each objection shall be and Reform Act for the 21st Century as the Dockets Management Branch (HFA– separately numbered, and each Amended by Section 1051 of the 305), Food and Drug Administration, numbered objection shall specify with National Defense Authorization Act for 5630 Fishers Lane, rm. 1061, Rockville, particularity the provisions of the Fiscal Year 2003 MD 20852. regulation to which objection is made FOR FURTHER INFORMATION CONTACT: and the grounds for the objection. Each AGENCY: Department of Defense. Sharon Benz, Center for Veterinary numbered objection on which a hearing ACTION: Interim final rule. Medicine (HFV–228), Food and Drug is requested shall specifically so state. Administration, 7500 Standish Pl., Failure to request a hearing for any SUMMARY: This rule prescribes Rockville, MD 20855, 301–827–6656. particular objection shall constitute a regulations to implement Section 740 of the Wendell H. Ford Aviation SUPPLEMENTARY INFORMATION: waiver of the right to a hearing on that objection. Each numbered objection for Investment and Reform Act for the 21st I. Background which a hearing is requested shall Century as amended by Section 1051 of In a notice published in the Federal include a detailed description and the National Defense Authorization Act Register of August 28, 2002 (67 FR analysis of the specific factual for Fiscal Year 2003. The regulations 55269), FDA announced that a food information intended to be presented in will establish procedures for the sale of additive petition (FAP 2248) had been support of the objection in the event excess Department of Defense aircraft to filed by ADM Alliance Nutrition, Inc., that a hearing is held. Failure to include persons or entities that provide oil spill 1000 North 30th St., P.O. Box C1., such a description and analysis for any response services (including the Quincy, IL 62305–7100. The petition particular objection shall constitute a application of oil dispersants by air) proposed to amend the food additive waiver of the right to a hearing on the pursuant to an oil spill response plan regulations in Part 573 Food Additives objection. Three copies of all documents that has been approved by the Secretary Permitted in Feed and Drinking Water of shall be submitted and shall be of the Department in which the Coast Animals (21 CFR part 573) to provide identified with the docket number Guard is operating. for the use of feed grade biuret in the found in brackets in the heading of this DATES: Effective May 22, 2003 until diets of lactating dairy cows. The notice document. Any objections received in September 30, 2006. Comments are of filing provided for a 75-day comment response to the regulation may be seen requested by July 21, 2003. period on the petitioner’s environmental in the Dockets Management Branch ADDRESSES: Forward comments to the information. No substantive comments between 9 a.m. and 4 p.m., Monday Assistant Deputy Under Secretary of have been received. through Friday. Defense (Supply Chain Integration),
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3500 Defense Pentagon, Room 3B730, that my result in the expenditure by (including the application of oil Washington, DC 20301–3500. State, local, and tribal governments, in dispersants by air). This part FOR FURTHER INFORMATION CONTACT: aggregate, or by the private sector, of implements that section. $100 million or more in any one year. Debra Bennett (703) 692–6031. § 207.2 Applicability. SUPPLEMENTARY INFORMATION: C. Regulatory Flexibility Act The sections in this part apply to the I. Background It has been determined that this rule sale of aircraft and aircraft parts Section 740 of the Wendell H. Ford is not subject to the Regulatory determined to be DoD excess under the Aviation Investment and Reform Act for Flexibility Act (5 U.S.C. 601) because it definition of the Federal Property the 21st Century (Public Law 016–181, would not, if promulgated, have a Management Regulations (FPMR) or the 114 Stat. 173) states that, significant economic impact on a Federal Management Regulation (FMR), notwithstanding section 202 of the substantial number of small entities. and listed in Attachment 1 of Chapter 4 of DoD 4160.21–M (August 1997) 1 as Federal Property and Administrative This rule applies only to the sale of Category A aircraft authorized for Services Act of 1949 (40 U.S.C. 483) and certain aircraft and aircraft parts to commercial use, to contractors subject to subsections (b) and (c), the those entities that provide oil spill providing oil spill response services. Secretary of Defense may sell, during response services. The U.S. Department the period beginning on the date of of Transportation provides the list of § 207.3 Restrictions. enactment of this Act and ending eligible entities that may bid on aircraft (a) Aircraft and aircraft parts sold September 30, 2002, certain aircraft and and aircraft parts. under the Act shall be used primarily aircraft parts to a person or entity that D. Paperwork Reduction Act for oil spill spotting, observation, and provides oil spill response services dispersant delivery, and may not have a (including the application of oil It has been certified that 32 CFR part secondary purpose that interferes with dispersants by air) pursuant to an oil 207 does not impose any reporting or oil spill response efforts under an oil spill response plan that has been record-keeping requirements under the spill response plan. Use for a secondary approved by the Secretary of the Paperwork Reduction Act of 1995 (44 purpose requires the prior written Department in which the Coast Guard is U.S.C. Chapter 44). approval of the Secretary of Defense and operating. Section 740 states that, as E. Executive Order 13132 the Secretary of Transportation, and a soon as practicable after the date of certificate from the Federal Aviation It has been certified that 32 CFR part enactment of the Act, the Secretary of Administration, to be obtained in 207 does not have federalism Defense, in consultation with the advance, for the proposed secondary implications, as set forth in Executive Secretary of Transportation and the use. Administrator of General Services, shall Order 13132. (b) Aircraft may not be flown outside prescribe regulations relating to the sale List of Subjects in 32 CFR Part 207 of or removed from the U.S. except for of aircraft and aircraft parts under this the purpose of fulfilling an international Aircraft, Oil spill, Oil dispersant. section. Section 1051 of the National agreement to assist in oil spill Defense Authorization Act for Fiscal ■ Accordingly, 32 CFR Part 207 is added dispersing efforts, for immediate Year 2003 (Pub. L. 107–314, 116 Stat. to read as follows: response efforts for an oil spill outside 2648) provides for a four-year extension United States waters that has the PART 207—IMPLEMENTATION OF to this authority. This interim final rule potential to threaten United States SECTION 740 OF THE WENDELL H. prescribes such regulations. waters, or for purposes that are jointly FORD AVIATION INVESTMENT AND approved by the Secretary of Defense II. Administrative Requirements REFORM ACT FOR THE 21ST and the Secretary of Transportation. CENTURY AS AMENDED BY SECTION A. Executive Order 12866 (c) The DoD sale of aircraft and 1051 OF THE NATIONAL DEFENSE aircraft parts sold under the Act shall It has been determined that 32 CFR AUTHORIZATION ACT FOR FISCAL not extend past the time limits of the 207 is not a significant regulatory YEAR 2003 Act. action. The rule does not (1) have an annual effect on the economy of $100 Sec. § 207.4 Qualifications. million or more or adversely affect in a 207.1 Background and purpose. The Secretary of Transportation must material way the economy, a sector of 207.2 Applicability. 207.3 Restrictions. certify in writing to the Secretary of the economy, productivity, competition, 207.4 Qualifications. Defense prior to sale that the person or jobs, the environment, public health or 207.5 Sale procedures. entity is capable of meeting the terms safety, or state, local, or tribal 207.6 Reutilization and transfer procedures. and conditions of a contract to perform governments or communities; (2) create 207.7 Reporting requirements. oil spill response services by air, and a serious inconsistency or otherwise 207.8 Expiration. that the overall system to be employed interfere with an action taken or Authority: Section 740 of Public Law 106– by the person or entity for the delivery planned by another agency; (3) 181, 114 STAT. 173 as amended by Section and application of oil spill dispersants materially alter the budgetary impact of 1051 of Public Law 107–314, 116 STAT. has been sufficiently tested to ensure entitlements, grants, user fees, or loan 2648. that the person or entity is capable of programs, or the rights and obligations participating in an oil spill response § 207.1 Background and purpose. of the recipients thereof; or (4) raise plan that has been approved by the novel legal or policy issues arising out Section 740 of the Wendell H. Ford Secretary of the Department in which of legal mandates, the President Aviation Investment and Reform Act for the Coast Guard is operating. priorities, or the principles set forth in the 21st Century, as amended, allows (a) Prior to sales offerings of aircraft this Executive Order. the Department of Defense (DoD), or aircraft parts, the U.S. Department of during the period 4 April 2000 through Transportation (DoT) must provide to B. Unfunded Mandates Reform Act 30 September 2006, to sell aircraft and It has been certified that 32 CFR part aircraft parts to a person or entity that 1 Copies may be obtained via Internet at http:// 207 does not contain a Federal Mandate provides oil spill response services www.dla.mil/dlaps/dod/41602lm/guide.asp.
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the Defense Reutilization and Marketing verifying and enforcing the use of (ii) When an aircraft or aircraft parts Service (DRMS), in writing, a list or aircraft and aircraft parts in accordance are determined to be uneconomically persons or entities eligible to bid under with the terms and conditions of the repairable and suitable only for this Act, including expiration date of sales contract. cannibalization and/or scrapping, the each DOT contract, and locations (i) Sales contracts include provisions purchaser shall advise the SCO in covered by the DOT contract. for on-site visits to the purchaser’s writing and provide evidence in the (b) This requirement may not be place(s) of business and/or worksite(s). form of a technical inspection document delegated to the U.S. Coast Guard (ii) Sales contracts require the from a qualified FAA airframe and (USCG). purchaser to make available to the SCO, powerplant mechanic, or equivalent. upon his or her request, all records § 207.5 Sale procedures. (iii) The policy outlined in paragraph concerning the use of aircraft and (d)(5) of this section also applies to Sale of aircraft and aircraft parts must aircraft parts. be in accordance with the provisions of resales by repurchasers, and to all other (2) DOT shall nominate in writing, manner of proposed title transfer Chapter 4 of DoD 4160.21–M (August and the SCO shall appoint, qualified 1997), paragraph B 2, and with other (including, but not limited to, exchanges Government employees (not contract and barters). pertinent parts of this manual, with the employees) to serve as Contracting following changes and additions: Officer’s Representatives (CORs) for the (iv) Sales of aircraft and aircraft parts (a) Sales shall be limited to the purpose of conducting on-site under the Act are intended for aircraft types listed in Attachment 1 of verification and enforcement of the use principals only. Sales offerings will Chapter 4 of DoD 4160.21–M (August of aircraft and aircraft parts for those caution prospective purchasers not to 1997), and parts thereto. purposes permitted by the sales buy with the expectation of acting as (b) Sales shall be made at fair market contract. brokers, dealers, agents, or middlemen value (FMV), as determined by the (i) COR appointments must be in for other interested parties. Secretary of Defense and, to the extent writing and must state the COR’s duties, (6) The failure of a purchaser to practicable, on a competitive basis. the limitations of the appointment, and (1) DRMS must conduct sales utilizing comply with the sales contract terms the reporting requirements. FMVs that are either provided by the and conditions may be cause for (ii) DOT bears all COR costs. Military Services on the Disposal Turn- suspension and/or debarment, in In Documents (DTIDs) or based on (iii) The SCO may reject any COR addition to other administrative, DRMS’s professional expertise and nominee for cause, or terminate any contractual, civil, and criminal knowledge of the market. Advice COR appointment for cause. (including, but not limited to, 18 U.S.C. regarding FMV shall be provided to (3) Sales contracts require purchasers 1001) remedies which may be available DRMS by DOT, as appropriate. to comply with the Federal Aviation to the Department of Defense. (2) If the high bid for a sale item does Agency (FAA) requirements in Chapter (7) Aircraft parts will be made not equal or exceed the FMV, DRMS is 4 of DoD 4160.21–M (August 1997), available as follows: paragraphs B 2 b (4) (d) 2 through B 2 vested with the discretion to reject all (i) DRMS may, based on availability bids and reoffer the item: b (4) (d) 5. (4) Sales contracts require purchasers and demand, offer for sale under the Act (i) As excess property on another oil whole unflyable aircraft, aircraft spill sale, if there is indication that to comply with the Flight Safety Critical Aircraft Parts regime in Chapter 4 of carcasses for cannibalization, or aircraft reoffer may be successful; or, parts, utilizing substantially the same (ii) As surplus property if, after DoD 4160.21–M (August 1997), provisions outlined in paragraphs (a) reporting the aircraft to the General paragraph B 26 c and d, and in through (d)(6) of this section for flyable Services Administration (GSA) for Attachment 3 to Chapter 4 of DoD aircraft. utilization and donation screening, 4160.21–M (August 1997). there are no Federal or State Agency (5) Sales contracts require purchasers (ii) Sales contracts for unflyable requirements as determined by GSA. to obtain the prior written consent of the aircraft shall contain a restriction in (3) Disposition of proceeds from sale SCO for resale of aircraft or aircraft parts perpetuity against use for flight. DRMS of aircraft under the Act, net of DRMS’s purchased from DRMS under this Act. will not issue a bill of sale for these expenses, will be to the general fund of Resales are only permitted to other aircraft. When unflyable aircraft or the United States Treasury as entities that, at time of resale, meet the aircraft residue is to be sold for parts miscellaneous receipts. qualifications required of initial use, the data plates must be removed (c) Purchasers shall certify that purchasers. The SCO must seek, and and destroyed by the owning military aircraft and aircraft parts will be used DOT must provide, written assurance as service prior to releasing the aircraft to only in accordance with conditions to the acceptability of a prospective the contractor. stated in § 207.3. repurchaser before approving resale. (iii) If DOT requests that DRMS set (1) Sales solicitations will require Resales will normally be approved for aside parts for sale under Act, DOT bidders to submit end-use certificates oil spill response contractors that have must provide listings of parts required, with their bids, stating the intended use completed their contracts, or that have by National Stock Number and and proposed areas of operation. had their contracts terminated, or that Condition Code. (2) The completed end-use certificates can provide other valid reasons for shall be used in the bid evaluation seeking resale that are acceptable to the (iv) Only qualified oil spill response process. SCO. operators who fly the end-item aircraft (d) Sales contracts shall include terms (i) If it is determined by the SCO that will be allowed to purchase unflyable and conditions for verifying and there is no interest in the aircraft or aircraft, aircraft carcasses, or aircraft enforcing the use of the aircraft and aircraft parts being offered for resale parts applicable to that end-item. aircraft parts in accordance with among entities deemed qualified (v) FMVs are not required for aircraft provisions of the guidance. repurchasers by DOT, the SCO may parts. DRMS will utilize historic prices (1) The DRMS Sales Contracting permit resale to entities outside the oil received for similar parts in making sale Officer (SCO) is responsible for spill response industry. determinations.
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§ 207.6 Reutilization and transfer (3) Transfer excess aircraft that Dated: May 12, 2003. procedures. survive reutilization and transfer Patricia L. Toppings, Prior to any sales effort, the Secretary screening to the Aerospace Maintenance Alternate OSD Federal Register Liaison of Defense shall, to the maximum extent and Regeneration Center (AMARC), Officer, Department of Defense. practicable, consult with the Davis-Monthan AFB, AZ, and place the [FR Doc. 03–12552 Filed 5–21–03; 8:45 am] Administrator of GSA, and with the aircraft in an ‘‘excess’’ storage category BILLING CODE 5001–08–M heads of other Federal departments and while aircraft are undergoing oil spill agencies as appropriate, regarding response sale. Aircraft shall not be made reutilization and transfer requirements available or offered to oil spill response DEPARTMENT OF HOMELAND for aircraft and aircraft parts under this operators from the Military Service’s SECURITY Act (see Chapter 4 of DoD 4160.21–M airfield. The Military Service shall be (August 1997), paragraphs B 2 b (1) responsible for the AMARC aircraft Coast Guard through B 2 b (3)). induction charges. The aircraft (a) DOT shall notify Army, Navy, and/ purchaser will be liable for all AMARC 33 CFR Part 160 or Air Force, in writing, of their aircraft withdrawal charges, to include any [USCG–2002–11865] requirements as they arise, by aircraft aircraft preparation required from type listed in Attachment 1 of Chapter AMARC. Sale of parts required for RIN 1625–AA41 4 of DoD 4160.21–M (August 1997). aircraft preparation is limited to those (b) When aircraft become excess, the not required for the operational mission Notification of Arrival in U.S. Ports owning Military Service will screen for forces, and only if authorized by AGENCY: Coast Guard, DHS. reutilization requirements within the specific authority of the respective ACTION: Final rule; partial suspension of Department of Defense, and those Military Service’s weapon system regulation. requirements shall take precedence over program manager. DOT requirements under this Act. SUMMARY: The Coast Guard is (c) Federal agency transfer: (1) The § 207.7 Reporting requirements. suspending the Notification of Arrival Military Service shall report aircraft that Not later than 31 March 2003, the requirement to electronically submit survive reutilization screening to GSA Secretary of Defense must submit to the cargo manifest information, (Customs Region 9 on a Standard Form 120. The Committees on Armed Services and Form 1302) to Customs and Border Military Service must advise GSA Commerce, Science, and Transportation Protection. This requirement was Region 9 if DOT has lodged a written of the Senate and the Committees on published on Feb 28, 2003 and was to requirement for the aircraft for use in oil National Security and Transportation be implemented by July 1, 2003. The spill response. GSA will screen for and Infrastructure of the House of Coast Guard is suspending this Federal agency transfer requirements in Representatives a report setting forth the submission requirement pending new accordance with the FMR. following: Customs and Border Protection (2) If a Federal agency requirement regulations. exists, GSA shall advise the owning (a) The number and type of aircraft DATES: Military Service, in writing, of its intent sold under this authority, and the terms This suspension is effective May to issue the aircraft to satisfy the Federal and conditions under which the aircraft 22, 2003. agency requirement. The Military were sold. ADDRESSES: Material received from the Service will notify DOT of the (b) The persons or entities to which public, as well as documents mentioned competing Federal requirement for the the aircraft were sold. in this preamble as being available in the docket, are part of docket USCG– aircraft. If DOT disputes the priority (c) An accounting of the current use 2002–11865 and are available for given to the Federal requirement, it of the aircraft sold. shall end a written notice of dispute to inspection or copying at the Docket (d) DOT must submit to Headquarters, the owning Military Service and to the Management Facility, U.S. Department Defense Reutilization and Marketing Deputy Under Secretary of Defense of Transportation, room PL–401, 400 Service, ATTN: DRMS–LMI, Federal (Logistics and Materiel Readiness Seventh Street SW., Washington, DC, Center, 74 Washington Avenue North, (DUSD (L&MR)) within thirty (30) days between 9 a.m. and 5 p.m., Monday Battle Creek, Michigan, 49017–3092, not of receipt of notice from the Military through Friday, except Federal holidays. later than 1 February 2006, a report Service. DUSD (L&MR) shall then You may also find this docket on the setting forth an accounting of the resolve the dispute, in writing. The Internet at http://dms.dot.gov. current disposition of all aircraft sold aircraft cannot be issued until FOR FURTHER INFORMATION CONTACT: If under the authority of the Act. notification is given and any dispute is you have questions on this rule, call resolved. (e) DRMS must compile the report, LTJG Kimberly B Andersen, U.S. Coast (d) The Military Services shall: (1) based on sales contract files and (for the Guard (G–MPP), at 202–267–2562. If Respond to the DOT, in writing, when third report element) input from the you have questions on viewing or excess aircraft that can meet DOT’s DOT. The report must be provided to submitting material to the docket, call stated requirements have survived Headquarters Defense Logistics Agency Dorothy Beard, Chief, Dockets, reutilization and transfer screening. not later than 1 March 2006. Department of Transportation, at 202– (2) Report excess aircraft that survive Headquarters Defense Logistics Agency 366–5149. reutilization and transfer screening and shall forward the report to Deputy SUPPLEMENTARY INFORMATION: are available for sale to Headquarters, Under Secretary of Defense (Logistics & Defense Reutilization and Marketing Materiel Readiness) not later than 15 Background and Purpose Service, ATTN: DRMS–LMI, Federal March 2006. On February 28, 2003, the Coast Center, 74 Washington Avenue North, Guard published its ‘‘Notification of § 207.8 Expiration. Battle Creek, Michigan 49017–3092. The Arrival in U.S. Ports’’ in the Federal Military Services must use a DD Form This part expires on 30 September Register (68 FR 9537). This final rule, 1348–1A, DTID, for this purpose. 2006. which became effective on April 1,
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2003, permanently replaced the Coast § 160.206 [Amended] Agency, Room B–108 (Mail Code Guard’s temporary requirements for ■ 3. In § 160.206, item (8) in table 6102T), 1301 Constitution Ave., NW., Notification of Arrival in U.S. Ports 160.206, is suspended. Washington, DC 20460. Copies of the published on October 4, 2001, in the State documents relevant to this action Federal Register (66 FR 50565) and was § 160.210 [Amended] are available for public inspection at the in addition to the Customs October 31, ■ 4. In § 160.210, in paragraph (b), the Montana Department of Environmental 2002 rule requiring cargo information 24 last sentence in the paragraph is Quality, Air and Waste Management hours prior to lading (67 FR 66318). suspended; in paragraph (c), the last Bureau, 1520 E. 6th Avenue, Helena, This final rule requires electronic sentence in the paragraph is suspended; Montana 59620. submission of cargo manifest (Customs and paragraph (d) is suspended. FOR FURTHER INFORMATION CONTACT: form 1302) to Customs and Border Laurie Ostrand, EPA, Region 8, (303) Protection via the Automated Manifest § 160.212 [Amended] 312–6437. System (AMS). Implementation of the ■ 5. In § 160.212, paragraph (c) is SUPPLEMENTARY INFORMATION: requirement for electronic submission of suspended. cargo manifest is not required until July Table of Contents Dated: May 5, 2003. 1, 2003. Definitions Paul J. Pluta, The cargo manifest submission I. Summary of EPA’s Final Action on Assistant Commandant for Marine Safety, Portions of the State of Montana’s July 29, requirement was established to capture Security and Environmental Protection. 1998 Submittal and all of the May 4, 2000 electronically the information on cargo [FR Doc. 03–12887 Filed 5–21–03; 8:45 am] Submittal manifest from vessels that were not II. Background BILLING CODE 4910–15–P filing the information electronically III. Statutory and Executive Order Reviews with the Customs and Border Protection. While July 1, 2003, is the Definitions date for implementing the requirement ENVIRONMENTAL PROTECTION For the purpose of this document, we to electronically transmit data through AGENCY are giving meaning to certain words or AMS that is set forth in the Final Rule initials as follows: published on February 28, 2003, the 40 CFR Part 52 (i) The words or initials Act or CAA Coast Guard, in consultation with [MT–001–0010; MT–001–0028; FRL–7489–5] mean or refer to the Clean Air Act, Customs and Border Protection, has unless the context indicates otherwise. decided to suspend the July 1, 2003 Approval and Promulgation of Air (ii) The initials CO mean or refer to implementation date. The date is Quality Implementation Plans; carbon monoxide. suspended pending further Custom and Montana; Billings/Laurel Sulfur Dioxide (iii) The words EPA, we, us or our Border Protection regulatory action State Implementation Plan mean or refer to the United States under recent legislation, including the Environmental Protection Agency. AGENCY: Trade Act of 2002, which should Environmental Protection (iv) The initials SIP mean or refer to eliminate the need for this requirement Agency (EPA). State Implementation Plan. in Coast Guard regulations. In that ACTION: Final rule. (v) The initials SO2 mean or refer to event, the Coast Guard would remove sulfur dioxide. SUMMARY: EPA is partially approving the suspended provisions from its (vi) The words State or Montana some, and limitedly approving and regulation. mean the State of Montana, unless the limitedly disapproving other, revisions context indicates otherwise. List of Subjects in 33 CFR Part 160 to the Billings/Laurel sulfur dioxide (vii) The initials SWS mean or refer to (SO2) State Implementation Plan (SIP) Administrative practice and sour water stripper. submitted by the State of Montana on procedure; Harbors; Hazardous (viii) The initials YELP mean or refer July 29, 1998 and May 4, 2000. The May materials transportation; Marine safety; to the Yellowstone Energy Limited 4, 2000 SIP revision was submitted to Navigation (water); Reporting and Partnership. satisfy earlier commitments made by the recordkeeping requirements; Vessels; Governor. The intended effect of this I. Summary of EPA’s Final Action on Waterways. action is to make federally enforceable Portions of the State of Montana’s July ■ For the reasons discussed in the those provisions that EPA is partially 29, 1998 Submittal and All of the May preamble, the Coast Guard amends 33 and limitedly approving, and to 4, 2000 Submittal CFR Part 160 as follows: limitedly disapprove those provisions We are approving the following that are not fully approvable. EPA is provisions: PART 160—PORTS AND WATERWAYS taking this action under sections 110 SAFETY—GENERAL • YELP’s emission limits in sections and 179 of the Clean Air Act (Act). 3(A)(1) through (3) and reporting Subpart C—Notifications of Arrival, DATES: This final rule is effective June requirements in section 7(C)(1)(b) of Departures, Hazardous Conditions, 23, 2003. YELP’s exhibit A submitted on May 4, and Certain Dangerous Cargoes ADDRESSES: Copies of the documents 2000. relevant to this action are available for • Provisions related to the burning of ■ 1. The authority citation for Part 160 is public inspection during normal SWS overheads in the F–1 Crude revised to read as follows: business hours at the Air and Radiation Furnace (and exhausted through the F– Authority: 33 U.S.C. 1223, 1226, 1231; Program, Environmental Protection 2 Crude/Vacuum Heater stack) at Department of Homeland Security Delegation Agency, Region 8, 999 18th Street, Suite ExxonMobil in sections 3(E)(4) and 4(E) No. 0170. 300, Denver, Colorado, 80202 and (excluding ‘‘or in the flare’’ and ‘‘or the copies of the Incorporation by Reference flare’’ in both sections), 3(A)(2), and § 160.203 [Amended] material may be inspected at the Air and 3(B)(3) of ExxonMobil’s exhibit A, ■ 2. In § 160.203, paragraphs (d) and (e) Radiation Docket and Information submitted on July 29, 1998 and method are suspended. Center, U.S. Environmental Protection #6A–1 of attachment #2 of
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ExxonMobil’s exhibit A, submitted on disapproved are also legally enforceable This partial and limited approval rule May 4, 2000. by us and citizens under the Act. Under will not have a significant impact on a • Minor changes in sections 3, 3(A) a limited approval/disapproval action, substantial number of small entities and 3(B) (only the introductory we approve and disapprove the entire because SIP approvals under section paragraphs); and sections 3(E)(3), rule even though parts of it do and parts 110 and subchapter I, part D of the 6(B)(7), 7(B)(1)(d), 7(B)(1)(j), 7(C)(1)(b), do not satisfy requirements under the Clean Air Act do not create any new 7(C)(1)(d), 7(C)(1)(f), and 7(C)(1)(l) of Act. The rule remains a part of the SIP, requirements but simply approve ExxonMobil’s exhibit A, submitted on however, even though there is a requirements that the State is already May 4, 2000. disapproval, because the rule imposing. Moreover, due to the nature We are limitedly approving and strengthens the SIP. The disapproval of the Federal-State relationship under limitedly disapproving the following only concerns the failure of the rule to the Clean Air Act, preparation of provisions: meet specific requirements of the Act flexibility analysis would constitute • Provisions related to the fuel gas and does not affect incorporation of the Federal inquiry into the economic combustion emission limitations at rule as part of the approved, federally reasonableness of state action. The ExxonMobil in sections 3(B)(2), 4(B), enforceable SIP. By disapproving parts Clean Air Act forbids EPA to base its and 6(B)(3) of ExxonMobil’s exhibit A, of the plan, we are determining that the actions concerning SIPs on such submitted on July 29, 1998 and section requirements necessary to demonstrate grounds. Union Electric Co., v. U.S. 3(A)(1) of ExxonMobil’s exhibit A, attainment in the area have not been EPA, 427 U.S. 246, 255–66 (1976); 42 submitted on May 4, 2000. U.S.C. 7410(a)(2). • met and we may develop a plan or parts Provisions related to ExxonMobil’s of a plan to assure that attainment will Moreover, EPA’s limited disapproval coker CO-boiler emission limitation in be achieved. will not have a significant impact on a sections 2(A)(11)(d), 3(B)(1) and 4(C) of EPA believes partially and limitedly substantial number of small entities ExxonMobil’s exhibit A, submitted on approving the Billings/Laurel SO2 SIP because the limited disapproval action May 4, 2000. only affects two industrial sources of air • meets the requirements of section 110(l) Provisions related to the burning of of the Act. The provisions of the plan pollution in Billings/Laurel, Montana: SWS overheads at Cenex in sections that we are partially and limitedly Cenex Harvest Cooperatives and 3(B)(2) and 4(D) (excluding ‘‘or in the approving strengthen the Montana SIP ExxonMobil Company, USA. Only a flare’’ and ‘‘or the flare’’ in both by providing specific emission limits for limited number of sources are impacted sections), 3(A)(1)(d), and 4(B) of Cenex’s several SO2 sources in Billings/Laurel. by this action. Furthermore, as exhibit A, submitted on July 29, 1998, This will achieve progress toward explained in this action, the submission and method #6A–1 of attachment #2 of attaining the SO2 NAAQS. does not meet the requirements of the Cenex’s exhibit A, submitted on May 4, Clean Air Act and EPA cannot approve 2000. III. Statutory and Executive Order the submission. The limited disapproval We caution that if sources are subject Reviews will not affect any existing State to more stringent requirements under A. Executive Order 12866, Regulatory requirements applicable to the entities. other provisions of the Act (e.g., section Planning and Review Federal disapproval of a State submittal 111 new source performance standards; does not affect its State enforceability. Title I, Part C, (prevention of significant The Office of Management and Budget Therefore, I certify that this action will deterioration); or SIP-approved permit (OMB) has exempted this regulatory not have a significant economic impact programs under Title I, Part A), our action from Executive Order 12866, on a substantial number of small approval and limited approval of the entitled ‘‘Regulatory Planning and entities. SIP (including emission limitations and Review.’’ D. Unfunded Mandates Reform Act other requirements), would not excuse B. Paperwork Reduction Act sources from meeting these other more Under section 202 of the Unfunded stringent requirements. Also, our action Under the Paperwork Reduction Act, Mandates Reform Act of 1995 on this SIP is not meant to imply any 44 U.S.C. 3501 et seq., OMB must (‘‘Unfunded Mandates Act’’), signed sort of applicability determination approve all ‘‘collections of information’’ into law on March 22, 1995, EPA must under other provisions of the Act (e.g., by EPA. The Act defines ‘‘collection of prepare a budgetary impact statement to section 111; Title I, Part C; or SIP- information’’ as a requirement for accompany any proposed or final rule approved permit programs under Title I, ‘‘answers to * * * identical reporting or that includes a Federal mandate that Part A). recordkeeping requirements imposed on may result in estimated costs to State, ten or more persons * * *’’ 44 U.S.C. local, or tribal governments in the II. Background 3502(3)(A). Because this rule does not aggregate; or to the private sector, of On May 2, 2002, 67 FR 22242, we impose an information collection $100 million or more. Under section proposed action on portions of the State burden, the Paperwork Reduction Act 205, EPA must select the most cost- of Montana’s July 29, 1998 submittal does not apply. effective and least burdensome and all of the May 4, 2000 submittal. No alternative that achieves the objectives C. Regulatory Flexibility Act comments were received on our of the rule and is consistent with proposed action. We are finalizing our The Regulatory Flexibility Act (RFA) statutory requirements. Section 203 action as proposed. For further generally requires an agency to conduct requires EPA to establish a plan for information regarding the basis for this a regulatory flexibility analysis of any informing and advising any small action, the reader should refer to our rule subject to notice and comment governments that may be significantly proposed action. rulemaking requirements unless the or uniquely impacted by the rule. Once we approve a SIP, or parts of a agency certifies that the rule will not EPA has determined that the partial SIP, the portions approved are legally have a significant economic impact on and limited approval and limited enforceable by us and citizens under the a substantial number of small entities. disapproval actions do not include a Act. Once we limitedly approve/ Small entities include small businesses, Federal mandate that may result in disapprove a SIP, or parts of a SIP, the small not-for-profit enterprises, and estimated costs of $100 million or more portions limitedly approved/ small governmental jurisdictions. to either State, local, or tribal
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governments in the aggregate, or to the F. Executive Order 13175, Consultation regulation. To comply with NTTAA, private sector. This Federal action and Coordination With Indian Tribal EPA must consider and use ‘‘voluntary partially and limitedly approves and Governments consensus standards’’ (VCS) if available limitedly disapproves pre-existing Executive Order 13175, entitled and applicable when developing requirements under State or local law, ‘‘Consultation and Coordination with programs and policies unless doing so and imposes no new requirements. Indian Tribal Governments’’ (65 FR would be inconsistent with applicable Accordingly, no additional costs to 67249, November 6, 2000), requires EPA law or otherwise impractical. State, local, or tribal governments, or to to develop an accountable process to The EPA believes that VCS are the private sector, result from this ensure ‘‘meaningful and timely input by inapplicable to this action. Today’s action. tribal officials in the development of action does not require the public to regulatory policies that have tribal perform activities conducive to the use E. Executive Order 13132, Federalism implications.’’ This final rule does not of VCS. have tribal implications, as specified in Federalism (64 FR 43255, August 10, J. Congressional Review Act 1999) revokes and replaces Executive Executive Order 13175. It will not have Orders 12612 (Federalism) and 12875 substantial direct effects on tribal The Congressional Review Act, 5 governments, on the relationship (Enhancing the Intergovernmental U.S.C. 801 et seq., as added by the Small between the Federal government and Partnership). Executive Order 13132 Business Regulatory Enforcement Indian tribes, or on the distribution of requires EPA to develop an accountable Fairness Act of 1996, generally provides power and responsibilities between the that before a rule may take effect, the process to ensure ‘‘meaningful and Federal government and Indian tribes. timely input by State and local officials agency promulgating the rule must This action does not involve or impose submit a rule report, which includes a in the development of regulatory any requirements that affect Indian policies that have federalism copy of the rule, to each House of the Tribes. Thus, Executive Order 13175 Congress and to the Comptroller General implications.’’ ‘‘Policies that have does not apply to this rule. federalism implications’’ is defined in of the United States. Section 804, however, exempts from section 801 the the Executive Order to include G. Executive Order 13045, Protection of following types of rules: rules of regulations that have ‘‘substantial direct Children From Environmental Health particular applicability; rules relating to effects on the States, on the relationship and Safety Risk Protection of Children from agency management or personnel; and between the national government and rules of agency organization, procedure, the States, or on the distribution of Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), or practice that do not substantially power and responsibilities among the affect the rights or obligations of non- various levels of government.’’ Under applies to any rule that: (1) Is determined to be ‘‘economically agency parties. 5 U.S.C. 804(3). EPA is Executive Order 13132, EPA may not not required to submit a rule report issue a regulation that has federalism significant’’ as defined under Executive Order 12866, and (2) concerns an regarding this action under section 801 implications, that imposes substantial because this is a rule of particular direct compliance costs, and that is not environmental health or safety risk that EPA has reason to believe may have a applicability. required by statute, unless the Federal disproportionate effect on children. If government provides the funds K. Petitions for Judicial Review the regulatory action meets both criteria, necessary to pay the direct compliance the Agency must evaluate the Under section 307(b)(1) of the Clean costs incurred by State and local environmental health or safety effects of Air Act, petitions for judicial review of governments, or EPA consults with the planned rule on children, and this action must be filed in the United State and local officials early in the explain why the planned regulation is States Court of Appeals for the process of developing the proposed preferable to other potentially effective appropriate circuit by July 21, 2003. regulation. EPA also may not issue a and reasonably feasible alternatives Filing a petition for reconsideration by regulation that has federalism considered by the Agency. the Administrator of this final rule does implications and that preempts State This rule is not subject to Executive not affect the finality of this rule for the law unless the Agency consults with Order 13045 because it does not involve purposes of judicial review nor does it State and local officials early in the decisions intended to mitigate extend the time within which a petition process of developing the proposed environmental health or safety risks. for judicial review may be filed, and regulation. H. Executive Order 13211, Actions That shall not postpone the effectiveness of This rule will not have substantial Significantly Affect Energy Supply, such rule or action. This action may not direct effects on the States, on the Distribution, or Use be challenged later in proceedings to relationship between the national enforce its requirements. (See section This rule is not subject to Executive government and the States, or on the 307(b)(2).) Order 13211, ‘‘Actions Concerning distribution of power and Regulations That Significantly Affect List of Subjects in 40 CFR Part 52 responsibilities among the various Energy Supply, Distribution, or Use’’ (66 Environmental protection, Air levels of government, as specified in FR 28355, May 22, 2001) because it is Executive Order 13132, because it pollution control, Incorporation by not a significant regulatory action under reference, Intergovernmental relations, merely partially or limitedly approves Executive Order 12866. and limitedly disapproves a state rule Reporting and recordkeeping implementing a federal standard, and I. National Technology Transfer and requirements, Sulfur oxides. does not alter the relationship or the Advancement Act Dated: April 17, 2003. distribution of power and Section 12 of the National Technology Robert E. Roberts, responsibilities established in the Clean Transfer and Advancement Act Regional Administrator, Region 8. Air Act. Thus, the requirements of (NTTAA) of 1995 requires Federal section 6 of the Executive Order do not agencies to evaluate existing technical ■ 40 CFR part 52 is amended to read as apply to this rule. standards when developing a new follows:
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PART 52—[AMENDED] 7(C)(1)(l). The stipulation revises the Montana Department of Environmental following sections of Exxon Mobil Quality and Exxon Mobil Corporation, ■ 1. The authority citation for part 52 Corporation’s exhibit A: 3 (introductory adopted by Board Order issued on continues to read as follows: text only), 3(A) (introductory text only), March 17, 2000, by the Montana Board Authority: 42 U.S.C. 7401 et seq. 3(A)(1), 3(B) (introductory text only), of Environmental Review. 3(B)(1), 3(E)(3), 6(B)(7), 7(B)(1)(d), [FR Doc. 03–12616 Filed 5–21–03; 8:45 am] Subpart BB—Montana 7(C)(1)(b), 7(C)(1)(d), and 7(C)(1)(f). (E) Board Order issued on March 17, BILLING CODE 6560–50–P ■ 2. Section 52.1370 is amended by 2000, by the Montana Board of adding paragraph (c)(52) to read as Environmental Review adopting and follows: ENVIRONMENTAL PROTECTION incorporating the February 14, 2000 AGENCY § 52.1370 Identification of plan stipulation between the Montana * * * * * Department of Environmental Quality 40 CFR Part 62 and Yellowstone Energy Limited (c) * * * [VT–1226a; FRL–7502–1] (52) The Governor of Montana Partnership (YELP). The stipulation revises the following sections of YELP’s submitted sulfur dioxide (SO2) SIP Approval and Promulgation of State revisions for Billings/Laurel on July 29, exhibit A: sections 3(A)(1) through (3) Plans for Designated Facilities and 1998 and May 4, 2000. EPA is approving and 7(C)(1)(b). Pollutants: Vermont; Negative ■ 3. In § 52.1384, add paragraph (e) to some of the provisions of the July 29, Declaration 1998 submittal that it did not approve read as follows: AGENCY: Environmental Protection before. The May 4, 2000 submittal § 52.1384 Emission control regulations. Agency (EPA). revises some previously approved * * * * * ACTION: provisions of the Billings/Laurel SO2 (e) In 40 CFR 52.1370(c)(52), we Direct final rule. SIP and adds new provisions. approved portions of the Billings/Laurel SUMMARY: (i) Incorporation by reference. EPA is approving the sections Sulfur Dioxide SIP for the limited 111(d) negative declaration submitted (A) Sections 3(B)(2) and 4(D) purpose of strengthening the SIP. Those (excluding ‘‘or the flare’’ and ‘‘or the by the Vermont Department of provisions that we limitedly approved Environmental Conservation (DEC) on flare’’ in both sections), 3(A)(1)(d) and are hereby limitedly disapproved. This 4(B) of Cenex Harvest States August 20, 1996. This negative limited disapproval does not prevent declaration adequately certifies that Cooperatives’ exhibit A to the EPA, citizens, or the State from stipulation between the Montana there are no existing municipal solid enforcing the provisions. This paragraph waste (MSW) landfills located in the Department of Environmental Quality identifies those provisions of the and Cenex Harvest States Cooperatives, state of Vermont that have accepted Billings/Laurel SO2 SIP identified in 40 adopted June 12, 1998 by Board Order waste since November 8, 1987 and that CFR 52.1370(c)(52) that have been must install collection and control issued by the Montana Board of limitedly disapproved. Environmental Review. systems according to EPA’s emissions (1) Sections 3(B)(2) and 4(D) guidelines for existing MSW landfills. (B) Board Order issued March 17, (excluding ‘‘or in the flare’’ and ‘‘or the 2000 by the Montana Board of EPA publishes regulations under flare’’ in both sections, which was sections 111(d) and 129 of the Clean Air Environmental Review adopting and previously disapproved in paragraphs incorporating the February 14, 2000 Act requiring states to submit control (d)(1)(i)(B) and (C) above), 3(A)(1)(d) plans to EPA. These state control plans stipulation between the Montana and 4(B) of Cenex Harvest State Department of Environmental Quality show how states intend to control the Cooperatives’ exhibit A to the emissions of designated pollutants from and Cenex Harvest States Cooperatives. stipulation between the Montana This stipulation revises attachment #2 designated facilities (e.g., landfills). The Department of Environmental Quality state of Vermont submitted this negative to Cenex Harvest States Cooperatives’ and Cenex Harvest State Cooperatives, exhibit A to require the use of method declaration in lieu of a state control adopted June 12, 1998 by Board Order plan. #6A–1. issued by the Montana Board of (C) Sections 3(E)(4) and 4(E) Environmental Review. DATES: This direct final rule is effective (excluding ‘‘or in the flare’’ and ‘‘or the (2) Method #6A–1 of attachment #2 of on July 21, 2003 without further notice flare’’ in both sections), 3(A)(2), 3(B)(2), Cenex Harvest State Cooperatives’ unless EPA receives significant adverse 3(B)(3), 4(B) and 6(B)(3) of Exxon’s exhibit A, as revised pursuant to the comment by June 23, 2003. If EPA exhibit A to the stipulation between the stipulation between the Montana receives adverse comment, we will Montana Department of Environmental Department of Environmental Quality publish a timely withdrawal of the Quality and Exxon, adopted June 12, and Cenex Harvest State Cooperatives, direct final rule in the Federal Register 1998 by Board Order issued by the adopted by Board Order issued on and inform the public that the rule will Montana Board of Environmental March 17, 2000, by the Montana Board not take effect. Review. of Environmental Review. ADDRESSES: You should address your (D) Board Order issued March 17, (3) Sections 3(B)(2), 4(B), and 6(B)(3) written comments to: Mr. Steven Rapp, 2000, by the Montana Board of of Exxon’s exhibit A to the stipulation Chief, Air Permits, Toxics & Indoor Environmental Review adopting and between the Montana Department of Programs Unit, Office of Ecosystem incorporating the February 14, 2000 Environmental Quality and Exxon, Protection, U.S. EPA, One Congress stipulation between the Montana adopted on June 12, 1998 by Board Street, Suite 1100 (CAP), Boston, MA Department of Environmental Quality Order issued by the Montana Board of 02114–2023. and Exxon Mobil Corporation. The Environmental Review. Copies of the documents relevant to stipulation adds the following to Exxon (4) Sections 2(A)(11)(d), 3(A)(1), this action are available for public Mobil Corporation’s exhibit A: method 3(B)(1) and 4(C) of Exxon Mobil inspection during normal business #6A–1 of attachment #2 and sections Corporation’s exhibit A, as revised hours, by appointment at the Office of 2(A)(11)(d), 4(C), 7(B)(1)(j) and pursuant to the stipulation between the Ecosystem Protection, U.S.
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Environmental Protection Agency, landfills as designated facilities. EPA on the relationship between the national Region I, One Congress Street, 11th specified non-methane organic government and the States, or on the floor, Boston, MA. compounds (NMOC) as a designated distribution of power and FOR FURTHER INFORMATION CONTACT: John pollutant by proposing the emission responsibilities among the various J. Courcier, (617) 918–1659. guidelines for existing MSW landfills. levels of government, as specified in SUPPLEMENTARY INFORMATION: These guidelines were published in Executive Order 13132 (64 FR 43255, final form on March 12, 1996 (61 FR August 10, 1999), because it merely Table of Contents 9905). approves a state rule implementing a I. What action is EPA taking today? federal standard, and does not alter the IV. When Did Vermont Submit Its II. What is the origin of the requirements? relationship or the distribution of power Negative Declaration? III. When did the requirements first become and responsibilities established in the known? On August 20, 1996, the Vermont Clean Air Act. This rule also is not IV. When did Vermont submit its negative Department of Environmental declaration? subject to Executive Order 13045 V. Regulatory Assessment Requirements Conservation (DEC) submitted a letter ‘‘Protection of Children from certifying that there are no existing Environmental Health Risks and Safety I. What Action Is EPA Taking Today? MSW landfills subject to 40 CFR part Risks’’ (62 FR 19885, April 23, 1997), EPA is approving the negative 60, subpart B. Section 111(d) and 40 because it is not economically declaration submitted by the state of CFR 62.06 provide that when no such significant. Vermont on August 20, 1996. designated facilities exist within a In reviewing sections 111(d)/129 State EPA is publishing this negative state’s boundaries, the affected state Plans, EPA’s role is to approve state declaration without prior proposal may submit a letter of ‘‘negative choices, provided that they meet the because the Agency views this as a declaration’’ instead of a control plan. criteria of the Clean Air Act. In this noncontroversial amendment and EPA is publishing this negative context, in the absence of a prior anticipates no adverse comments. declaration at 40 CFR 62.11485. existing requirement for the State to use However, in the proposed rules section V. Regulatory Assessment voluntary consensus standards (VCS), of this Federal Register, EPA is Requirements EPA has no authority to disapprove a publishing a separate document that state plan for failure to use VCS. It will serve as the proposal to approve Under Executive Order 12866 (58 FR would thus be inconsistent with this negative declaration should 51735, October 4, 1993), this action is applicable law for EPA, when it reviews relevant adverse comments be filed. If not a ‘‘significant regulatory action’’ and a state plan, to use VCS in place of a EPA receives no significant adverse therefore is not subject to review by the submission that otherwise satisfies the comment by June 23, 2003, this action Office of Management and Budget. For provisions of the Clean Air Act. Thus, will be effective July 21, 2003. this reason, this action is also not the requirements of section 12(d) of the If EPA receives significant adverse subject to Executive Order 13211, National Technology Transfer and comments by the above date, we will ‘‘Actions Concerning Regulations That Advancement Act of 1995 (15 U.S.C. withdraw this action before the effective Significantly Affect Energy Supply, 272 note) do not apply. This rule does date by publishing a subsequent Distribution, or Use’’ (66 FR 28355, May not impose an information collection document in the Federal Register. EPA 22, 2001). This action merely approves burden under the provisions of the will address all public comments state law as meeting Federal Paperwork Reduction Act of 1995 (44 received in a subsequent final rule requirements and imposes no additional U.S.C. 3501 et seq.) based on the parallel proposed rule requirements beyond those imposed by The Congressional Review Act, 5 published in today’s Federal Register. state law. Accordingly, the U.S.C. 801 et seq., as added by the Small EPA will not institute a second Administrator certifies that this rule Business Regulatory Enforcement comment period on this action. Any will not have a significant economic Fairness Act of 1996, generally provides parties interested in commenting on this impact on a substantial number of small that before a rule may take effect, the action should do so at this time. If EPA entities under the Regulatory Flexibility agency promulgating the rule must receives no comments, this action will Act (5 U.S.C. 601 et seq.). Because this submit a rule report, which includes a be effective July 21, 2003. rule approves pre-existing requirements copy of the rule, to each House of the under state law and does not impose Congress and to the Comptroller General II. What Is the Origin of the any additional enforceable duty beyond of the United States. EPA will submit a Requirements? that required by state law, it does not report containing this rule and other Under section 111(d) of the Clean Air contain any unfunded mandate or required information to the U.S. Senate, Act, EPA published regulations at 40 significantly or uniquely affect small the U.S. House of Representatives, and CFR part 60, subpart B which require governments, as described in the the Comptroller General of the United states to submit plans to control Unfunded Mandates Reform Act of 1995 States prior to publication of the rule in emissions of designated pollutants from (Pub. L. 104–4). the Federal Register. A major rule designated facilities. In the event that a This rule also does not have tribal cannot take effect until 60 days after it state does not have a particular implications because it will not have a is published in the Federal Register. designated facility located within its substantial direct effect on one or more This action is not a ‘‘major rule’’ as boundaries, EPA requires that a negative Indian tribes, on the relationship defined by 5 U.S.C. 804(2). declaration be submitted in lieu of a between the Federal Government and Under section 307(b)(1) of the Clean control plan. Indian tribes, or on the distribution of Air Act, petitions for judicial review of power and responsibilities between the this action must be filed in the United III. When Did the Requirements First Federal Government and Indian tribes, States Court of Appeals for the Become Known? as specified by Executive Order 13175 appropriate circuit by July 21, 2003. On May 30, 1991 (56 FR 24468), EPA (65 FR 67249, November 9, 2000). This Interested parties should comment in proposed emission guidelines for action also does not have Federalism response to the proposed rule rather existing MSW landfills. This action implications because it does not have than petition for judicial review, unless enabled EPA to list existing MSW substantial direct effects on the States, the objection arises after the comment
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period allowed for in the proposal. SUMMARY: This action promulgates development of the rule. The docket is Filing a petition for reconsideration by national emission standards for a dynamic file because material is added the Administrator of this final rule does hazardous air pollutants (NESHAP) for throughout the rule development not affect the finality of this rule for the new and existing semiconductor process. The docketing system is purposes of judicial review nor does it manufacturing operations located at intended to allow members of the public extend the time within which a petition major sources of emissions of hazardous and industries involved to readily for judicial review may be filed, and air pollutants (HAP). The final identify and locate documents so that shall not postpone the effectiveness of standards implement section 112(d) of they can effectively participate in the such rule or action. This action may not the Clean Air Act (CAA), which requires rule development process. Along with be challenged later in proceedings to the Administrator to regulate emissions the proposed and promulgated enforce its requirements. (See section of HAP listed in section 112(b) of the standards and their preambles, the 307(b)(2).) CAA. The intent of the standards is to contents of the docket will serve as the protect public health and the record in the case of judicial review. List of Subjects in 40 CFR Part 62 environment by requiring new and (See section 307(d)(7)(A) of the CAA.) Environmental protection, existing major sources to control The regulatory text and other materials Administrative practice and procedure, emissions to the level attainable by related to the final rule are available for Air pollution control, Intergovernmental implementing the maximum achievable review in the docket or copies may be relations, Reporting and recordkeeping control technology (MACT). The mailed on request from the Air and requirements, Waste treatment and primary HAP that will be controlled Radiation Docket and Information disposal. with this action include hydrochloric Center by calling (202) 566–1742. A Dated: May 8, 2003. acid (HCl), hydrogen flouride (HF), reasonable fee may be charged for methanol, glycol ethers, and xylene. copying docket materials. Robert W. Varney, Exposure to these substances has been Electronic Docket Access. You may Regional Administrator, EPA New England. demonstrated to cause adverse health access the final rule electronically ■ 40 CFR part 62 is amended as follows: effects such as irritation of the lung, eye, through the EPA Internet under the and mucous membranes; effects on the ‘‘Federal Register’’ listings at http:// PART 62—[AMENDED] central nervous system; liver and kidney www.epa.gov/fedrgstr/. An electronic version of the public docket is available ■ 1. The authority citation for part 62 damage; and, possibly cancer. We do through EPA’s electronic public docket continues to read as follows: not have the type of current detailed data on each of the facilities and the and comment system, EPA Dockets. You Authority: 42 U.S.C. 7401–7671q. people living around the facilities may use EPA Dockets at http:// covered by today’s final rule for this www.epa.gov/edocket/ to view public Subpart UU—Vermont source category that would be necessary comments, access the index listing of ■ 2. Subpart UU is amended by adding to conduct an analysis to determine the the contents of the official public a new § 62.11485 and a new actual population exposures to the HAP docket, and to access those documents undesignated center heading to read as emitted from these facilities and the in the public docket that are available follows: potential for resultant health effects. electronically. Although not all docket Therefore, we do not know the extent to materials may be available Emission From Existing Municipal which the adverse health effects electronically, you may still access any Solid Waste Landfills described above occur in the of the publicly available docket populations surrounding these facilities. materials through the docket facility in § 62.11485 Identification of Plan—negative the above paragraph entitled ‘‘Docket.’’ declaration. However, to the extent the adverse effects do occur, and today’s final rule Once in the system, select ‘‘search,’’ On August 20, 1996, the Vermont reduces emissions, subsequent then key in the appropriate docket Department of Environmental exposures will be reduced. identification number. Conservation submitted a letter EFFECTIVE DATE: May 22, 2003. World Wide Web (WWW). In addition certifying that there are no existing to being available in the docket, an municipal solid waste landfills in the ADDRESSES: Docket No. A–97–15 and E- Docket No. OAR–2002–0086 contain electronic copy of the final rule will also state subject to the emission guidelines be available on the WWW through the under part 60, subpart B of this chapter. supporting information used in developing the standards for the EPA’s Technology Transfer Network [FR Doc. 03–12863 Filed 5–21–03; 8:45 am] semiconductor manufacturing source (TTN). Following signature by the EPA Administrator, a copy of the final rule BILLING CODE 6560–50–P category. The docket is located at EPA Docket Center (Air Docket), U.S. EPA, will be posted on the TTN’s policy and 1301 Constitution Avenue, NW., Room guidance page for newly proposed or ENVIRONMENTAL PROTECTION B108, Mail Code: 6102T, Washington, promulgated rules at http:// www.epa.gov/ttn/oarpg. The TTN AGENCY DC 20460. provides information and technology FOR FURTHER INFORMATION CONTACT: 40 CFR Part 63 Mr. exchange in various areas of air John Schaefer, U.S. EPA, Office of Air [OAR–2002–0086, FRL–7461–3] pollution control. If more information Quality Planning and Standards, regarding the TTN is needed, call the RIN 2060–AG93 Emission Standards Division (C504–05), TTN HELP line at (919) 541–5384. Research Triangle Park, NC 27711, Regulated Entities. Categories and National Emission Standards for telephone number (919) 541–0296, entities potentially regulated by this Hazardous Air Pollutants for electronic mail (e-mail) address: action include those listed on the Semiconductor Manufacturing [email protected]. following table. This table is not AGENCY: Environmental Protection SUPPLEMENTARY INFORMATION: Docket. intended to be exhaustive, but is just a Agency (EPA). The docket is an organized and guide to entities likely to be regulated complete file of all the information by these standards. It lists the types of ACTION: Final rule. considered by the EPA in the entities that may be regulated, but you
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should examine the applicability is regulated by the standards. If you the person listed in the preceding FOR criteria in §§ 63.7181 and 63.7182 of the have any questions about whether your FURTHER INFORMATION CONTACT section. final rule to decide whether your facility facility is subject to the standards, call
CATEGORIES AND ENTITIES POTENTIALLY REGULATED BY THE STANDARDS
NAICS SIC Category code code Examples of regulated entities
Industrial ...... 334413 3674 Semiconductor crystal growing facilities, semiconductor wafer fabrication facilities, semiconductor test and assembly facilities.
Judicial Review. Under section 307(b) H. Executive Order 13211: Actions That performing 12 percent of existing of the CAA, judicial review of the final Significantly Affect Energy Supply, sources in the category or subcategory rule is available only by filing a petition Distribution, or Use (or the best performing five sources for for review in the United States Court of I. National Technology Transfer categories with fewer than 30 sources). Advancement Act Appeals for the District of Columbia J. Congressional Review Act In developing MACT, we also Circuit by July 21, 2003. Under section consider control options that are more 307(d)(7)(B) of the CAA, only an I. Background stringent than the floor. We may objection to the rule which was raised A. What Is the Source of Authority for establish standards more stringent than with reasonable specificity during the Development of NESHAP? the floor based on consideration of the period for public comment can be raised cost of achieving the emission during judicial review. Moreover, under Section 112 of the CAA requires us to reductions, any health and section 307(b)(2) of the CAA, the list categories and subcategories of environmental impacts, and energy requirements established by this final major sources and area sources of HAP requirements. action may not be challenged separately and to establish NESHAP for the listed II. What Changes and Clarifications in any civil or criminal proceeding we source categories and subcategories. On Have We Made for the Final Standards? bring to enforce these requirements. July 16, 1992, major source categories Outline. The information presented in covered by the NESHAP were listed In response to public comments this preamble is organized as follows: under the Semiconductor received on the proposed standards, we I. Background Manufacturing industry group (57 FR made several changes in developing the A. What Is the Source of Authority for 31576). Major sources of HAP are those final rule. Some of the changes had a Development of NESHAP? that have the potential to emit direct effect on the MACT floors and B. What Criteria Do We Use in the considering controls, in the aggregate, emission limits, while other changes Development of NESHAP? 10 tons per year (tpy) or more of any clarified the substantive requirements II. What Changes and Clarifications Have We HAP or 25 tpy or more of any for the final rule. A more Made for the Final Standards? combination of HAP. comprehensive summary of comments A. MACT Floors and Emission Limits and responses can be found in Docket B. Compliance Options and Procedures B. What Criteria Do We Use in the No. A–97–15 and E–Docket No. OAR– III. Response to Comments on the Proposed Development of NESHAP? NESHAP for Semiconductor 2002–0086. Section 112 of the CAA requires that Manufacturing A. MACT Floors and Emission Limits IV. What Are the Final Standards? we establish NESHAP for the control of A. What Is the Source Category? HAP from both new and existing major Process vents. When we developed B. What Is the Affected Source? sources. The CAA requires the NESHAP the original MACT floors for process C. What Are the Emission Standards? to reflect the maximum degree of vents, we first determined the control V. When Must I Comply With the Final Rule? reduction in emissions of HAP that is efficiency, expressed as percent VI. What Are the Testing and Initial achievable. This level of control is emission reduction, for each process Compliance Requirements? A. Test Methods and Procedures commonly referred to as MACT. vent for which we had inlet and outlet B. Monitoring Requirements The MACT floor is the minimum HAP concentration data. We then VII. What Notification, Recordkeeping, and control level allowed for NESHAP and ranked the process vents based on the Reporting Requirements Must I Follow? is defined under section 112(d)(3) of the control efficiency achieved. Based on VIII. What Are the Environmental, Energy, CAA. In essence, the MACT floor the best performing five process vents, and Economic Impacts of the Final Rule? ensures that the standard is set at a level we determined that thermal oxidation A. What Are the Secondary and Energy that assures that all major sources was used for emission control on four of Impacts? achieve the level of control at least as them. Consequently, we selected B. What Are the Cost Impacts? C. What Are the Economic Impacts? stringent as that already achieved by the thermal oxidation as the MACT floor. IX. Statutory and Executive Order Reviews better-controlled and lower-emitting For the emission limit, we chose 98 A. Executive Order 12866: Regulatory sources in each source category or percent control as representative of the Planning and Review subcategory. For new sources, the level of control typically achieved by B. Paperwork Reduction Act MACT floor cannot be less stringent thermal oxidizers in practice. We C. Regulatory Flexibility Act than the emission control that is decided not to base the emission limit D. Unfunded Mandates Reform Act achieved in practice by the best- on the reported performance of the E. Executive Order 13132: Federalism controlled similar source. The MACT thermal oxidizers because, in all cases, F. Executive Order 13175: Consultation and Coordination With Indian Tribal standards for existing sources can be the inlet streams were high volume with Governments less stringent than the standards for new low concentration of HAP. Under those G. Executive Order 13045: Protection of sources, but they cannot be less conditions, measurements of the actual Children From Environmental Health & stringent than the average emission performance of a thermal oxidizer can Safety Risks limitation achieved by the best be unreliable. As such, we believe
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choosing 98 percent control efficiency is outlet emissions of those five process allows for a buffer so that the treatment more representative of what the thermal vents, we established the alternative can be adequately carried out. All of the oxidizers can consistently achieve in emission limit as 0.42 ppmv. flow-through tanks in the data supplied practice. Storage tanks. We received comments by the industry are controlled by One commenter objected to this on whether all of the tanks we included scrubbers. However, the industry also procedure, stating that the CAA directs in the MACT floor analysis were the provided information that the purpose us to consider only the actual type of tank we intended to regulate of all of these scrubbers was primarily performance of the sources used to through the rulemaking. The comments to control ammonia odors. We do not establish the MACT floor. The provided additional clarifying believe that requiring scrubbers on flow- commenter believed that we should information on a number of the tanks through tanks would result in revise the MACT floor and emission we used to develop the MACT floor. significant reductions of HAP limits based on the reported Specifically, the comments questioned emissions, nor was it our intent in the performance of the five best performing whether storage tanks for wastewater proposed rule to regulate such tanks. sources. While we agree that the CAA with very low concentration of HAP, Therefore, the definition of storage tank directs us to base the MACT floors on waste storage tanks already covered that we added to the final rule clarifies actual performance, we believe that the under the Resource Conservation and that flow-through tanks are not test data do not accurately represent Recovery Act (RCRA), and wastewater considered storage tanks for the actual performance because of the high- treatment tanks should have been purposes of the final rule. volume, low-concentration nature of the included in the MACT floor analysis. We made an additional change for the emission streams. With the exception of wastewater final rule based on our revised storage In response to this comment, we treatment tanks, it was our intent to tank MACT floor analysis. Because we decided to reevaluate the process vent include all of these types of tanks in the eliminated several tanks from the data MACT floor by considering organic and affected source. However, based on the set used in the MACT floor analysis, the inorganic streams separately, as additional information provided by the cutoff for the smallest size tank for suggested by another commenter. By industry, we have concluded that it was which the final rule applies increased doing so, we can more accurately assess not appropriate to develop one MACT from 800 gallons to 1,500 gallons. We the performance of the different control floor for all types of tanks due to the also revised our analysis of alternatives devices used for these two types of wide range of emissions from the each more stringent than the MACT floor to emission streams. type of tank. Therefore, we developed reflect the increased tank size. We found Organic emission streams are almost separate MACT floors for chemical that the cost per ton of additional always controlled by some type of storage tanks (including waste storage emission reduction (approximately thermal oxidation. As discussed above, tanks regulated under RCRA) and $300,000/ton) is still too great to measurements of thermal oxidizer wastewater storage tanks. warrant a more stringent level of performance can be unreliable for high- We found that the level of control, control. We have also included a volume, low-concentration streams. based on the top five best performing definition for ‘‘storage tank’’ to 40 CFR Thus, we continue to believe that the sources in each data set, is the same for 63.7195 to clarify which tanks we test data for organic HAP emission each type of tank. The level of control intended to be subject to the final rule. control we obtained for thermal is to reduce emissions through the use oxidizers controlling semiconductor of a scrubber and is identical to the level B. Compliance Options and Procedures manufacturing process vents may not of control used to establish the MACT As part of our reevaluation of the accurately portray actual performance. floor that was the basis of the emission MACT floors for process vents as Thus, our original selection of a known limits in the proposed rule. However, described above, we also considered achievable emission reduction based on other comments we received, other compliance options to reflect our percentage, as used for MACT in rules we have decided not to use the same position on the performance of control such as the Hazardous Organic NESHAP MACT floor procedure for the final rule. devices. While we believe the or HON (57 FR 19402), better represents Since the semiconductor industry performance of scrubbers controlling actual performance as directed by the storage tank emission streams will have high-volume, low-concentration CAA. For the final rule, we retained 98 similar characteristics to those of emission streams can be measured, we percent control as the emission limit for process vents (i.e., low pollutant also recognize that control efficiency organic emission streams from process concentration), rather than hydrochloric cannot always be reliably predicted for vents. We also retained the alternative acid production industry storage tanks, such streams. Also, facilities may emission limit of 20 parts per million by we now believe the most representative choose to use a control device other volume (ppmv) for organic emission similar sources for evaluating the MACT than a scrubber which may be more streams. floor for storage tanks are the difficult to measure performance. For For inorganic emissions from process semiconductor industry process vents. these situations, we have included a vents, all the data we obtained showed Therefore, in response to the comments compliance option to the final rule (see that scrubbers were used to control concerning our use of hydrochloric acid 40 CFR 63.7187(i)) that allows a source those emissions. Unlike thermal production industry storage tanks as the to perform a design evaluation of the oxidizers, scrubbers experience less most representative similar source, we add-on control device. If the inlet erratic performance characteristics with are adopting the process vent inorganic concentration of inorganic HAP is less high-volume, low-concentration HAP emission limits for all storage than or equal to 20 ppmv, then the emission streams. Accordingly, we were tanks required to control emissions in facility may choose to perform a design able to use the actual performance data the final rule. evaluation of the control device that to establish the MACT floor for the The comments we received clarified demonstrates the device is capable of control of inorganic emissions from that the reported wastewater treatment achieving the required control process vents. Again, using the top five tanks were not actually storage tanks but efficiency. best performing process vents, we flow-through tanks used for certain We chose 20 ppmv as the cutoff for established the MACT floor as 95 continuous treatment processes such as allowing a design evaluation because percent control. Based on the actual pH adjustment. The tank volume merely the data we obtained showed erratic
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performance measurement values below that sources use best air pollution manufacturing process is based this level. The test results show control control practices during those periods. undergoes substantial change every few device performance decreasing as the Response: We disagree with the years. This extremely short technology inlet concentration decreases. However, commenter’s interpretation of the life cycle results in constant research the last entry shows that even at very proposed rule. The General Provisions and development efforts geared toward low inlet concentrations, control device at 40 CFR 63.6(e)(1)(i) require that developing and implementing new performance can sometimes be high. sources must at all times, including manufacturing technologies. The These data show the difficulty of periods of startup, shutdown, and continual research and development measuring control device performance malfunction, maintain the affected efforts result in an ongoing integration with high-volume, low-concentration source in a manner such that emissions of new technologies into mainstream inlet streams, and why we believe a are minimized to the level required by production operations. New design evaluation procedure is the relevant standard. That section manufacturing operations are typically necessary. In the final rule, we have further clarifies that this means to ‘‘meet not developed apart from existing adopted the design evaluation the emission standards or comply with manufacturing operations, but rather procedure alternative from the the startup, shutdown, and malfunction side-by-side with them. The new Pharmaceuticals Production NESHAP plan.’’ The purpose of the startup, operations are gradually integrated into (40 CFR part 63, subpart GGG). shutdown, and malfunction plan mainstream production. As such, the During our review of the proposed (SSMP), as described in 40 CFR majority of research and development rule, we realized that we inadvertently 63.6(e)(3)(i)(A), is to: work is done in a manner nearly omitted Method 26A of 40 CFR part 60, [e]nsure that, at all times, the owner or indistinguishable from the existing appendix A, for analysis of emission operator operate and maintain affected manufacturing process. streams for inorganic HAP. The final sources, including associated air pollution Given the manner in which research rule includes this test method. control and monitoring equipment, in a and development activities are manner consistent with safety and good air integrated into production, there is no III. Response to Comments on the pollution control practices for minimizing bright line distinction between research Proposed NESHAP for Semiconductor emissions to at least the levels required by and development and production. They Manufacturing the relevant standards. A properly written SSMP does not are located in the same clean rooms and, Comment: One commenter requested allow the source to emit at whatever more importantly, share the same that EPA consider providing exemptions levels they want merely because they exhaust plenums and emission control that would exclude insignificant sources comply with what they have written in devices. For these reasons, the research from regulation. The commenter argued the SSMP. Under the SSMP, the source and development activities are that the administrative burdens must detail the procedures that will be considered part of the production associated with the proposed rule are used to maintain emissions within the process and are within the affected unwarranted for such sources. The limits set by the rule during periods of source. commenter further argued that if startup, shutdown, and malfunction. In We note, however, that the research additional add-on control devices this case, the SSMP is analogous to and development operations have to be would be required, it would result in parameter monitoring for evaluating located at a semiconductor insignificant HAP reductions. Another continuous compliance of add-on manufacturing facility to be considered commenter suggested that storage tanks control devices. Just as maintaining the a semiconductor manufacturing process are insignificant HAP emission sources temperature of a thermal oxidizer at the unit. Therefore, research and and should be excluded from the final proper operating temperature as development activities that are not used rule. determined during the initial to produce semiconductors for Response: While we understand the compliance demonstration is deemed to commerce, or produce them only for commenters’ concern with the burden be compliance with the emission limits, captive use, would not be imposed by regulation of sources with following the SSMP is deemed to be semiconductor manufacturing process low annual emissions, the CAA does not compliance with emission limits during units and would not be subject to the provide a mechanism by which we can periods of startup, shutdown, and final rule. Nor would research and exempt such emission sources from the malfunction. development operations that are stand affected source solely on the basis of Comment: One commenter was alone activities (that is, not integrated emissions. Additionally, some facilities concerned with the burden of into the production process) be subject in the semiconductor industry are compliance as proposed at facilities that to the final rule. We modified 40 CFR characterized by multiple point sources are classified as major sources of HAP 63.7182(b) of the final rule to clarify this of emissions, many of which have low due to processes other than point. annual emissions. If we exempted all semiconductor manufacturing and that Comment: One commenter argued such sources, there is a possibility that only conduct minimal production of that EPA must regulate all major sources a large portion of the emissions from the semiconductors for research and and believed the proposed rule fails to facility could escape regulation. For development purposes. The commenter do this because it does not apply to these reasons, we are not exempting requested that EPA add a de minimis sources that installed add-on control sources with low HAP emissions from threshold for rule applicability. devices after the facility was designed the final rule. Response: Through our data gathering and commenced operation. The Comment: One commenter contended efforts, we found that research and commenter interpreted the court’s that EPA’s exemption of sources during development activities are often ruling in Alabama Power (Alabama periods of startup, shutdown, and integrated into the production activities Power Co. v. U.S. EPA, 636 F.2d 323 (DC malfunction is a violation of the at semiconductor manufacturing Cir. 1979)) as specifying that controls requirement for continuous compliance. facilities. Such research and must be incorporated into the original The commenter argued that EPA may development activities are often used in design of the facility in order to be only allow unavoidable deviations from actual production because the considered when calculating the emissions standards and must require technology upon which the facility’s potential to emit.
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Response: We believe the commenter MACT program under section 112, many unless they are stand alone operations. incorrectly interpreted the court’s sources that otherwise would be subject to We believe that relief valve discharge decision in Alabama Power. That case these new requirements under the Clean Air points, process analyzers, and addressed, in part, the interpretation of Act Amendments of 1990 also have obtained, conservation vents can be adequately or plan to obtain, PTE limits to avoid ‘‘potential to emit’’ in the definition of coverage. connected to process vent exhaust major source in the prevention of ducts, if this is not already the case. significant deterioration (PSD) The phrase ‘‘have obtained, or plan to Emergency electrical generators are not regulations (also part of the CAA, but obtain’’ implies that these sources will included in the definition of unrelated to hazardous air pollutant be adding controls to limit emissions. semiconductor manufacturing process regulations). The court found that EPA Since these controls would be added to unit, so there is no need to exclude ‘‘must look to the facility’s ‘design an existing facility, they could not have them from the definition of process capacity’ a concept which not only been designed into the facility before it vent. includes a facility’s maximum was ever constructed. Thus, the Comment: One commenter was productive capacity * * * but also takes commenter’s interpretation is incorrect, concerned about the broad definition of into account the anticipated functioning and we have made no changes for the ‘‘control device’’ in 40 CFR 63.981(a). of the air pollution control equipment final rule in response to this comment. According to the commenter, this designed into the facility.’’ (Alabama Comment: One commenter requested paragraph could be interpreted to mean Power, 636 F.2d at 353). The commenter that a definition for ‘‘process vent’’ be that certain devices that are part of the has interpreted this statement to mean added to the final rule. Additionally, the process (not an add-on control device) that only controls that were part of the commenter further argued that if EPA would be subject to the rule. original design of the facility can be cannot exclude research and Response: We agree that there are taken into account when calculating development vents from the definition certain devices used by the potential to emit. Nowhere does the of process vents, then the final rule semiconductor industry that could be court state or even imply such a result must provide an exemption for research construed as control devices but are in in its decision. The commenter failed to and development activities consistent fact an inherent part of the process, and take into account that the PSD with section 112(c)(7) of the CAA. that clarification is necessary in the regulations define a preconstruction A second commenter was also final rule. In response, we have permitting process. Because the air concerned with the absence of a included the following definition to 40 emission sources under consideration in definition for process vent. The CFR 63.7195: Control device means a the PSD process have yet to be commenter pointed out that the absence combustion device, recovery device, constructed, the permitting process of a definition results in ambiguity recapture device, or any combination of must necessarily deal with only designs regarding compliance obligations. The these devices used for the primary of future air emission sources. We commenter also suggested that a process purpose of reducing emissions to believe the court’s language reflects only vent definition would allow EPA to comply with this subpart. Devices that this aspect of the PSD review process, exclude categories of emission points are inherent to a process or are integral not the interpretation given by the with negligible emissions potential. to the operation of a process are not commenter. Response: We agree that a definition considered control devices for the The NESHAP program, on the other of ‘‘process vent’’ would be beneficial in purposes of this subpart, even though hand, is concerned with air emission determining which emission points at a these devices may have the secondary sources already in existence, as well as semiconductor manufacturing facility effect of reducing emissions. new sources. If we were to apply the are subject to the emission limitations in Comment: One commenter objected to wording of Alabama Power to the 40 CFR 63.7184 of the final rule. the EPA’s approach of using area source NESHAP program, our interpretation Because the affected source is defined in information to establish the MACT floor would be that the phrase ‘‘designed into terms of semiconductor manufacturing as being inconsistent with section the facility’’ means any air emission process units (see 40 CFR 63.7182), the 112(d)(3) of the CAA. The commenter control equipment in use at the facility process vents subject to regulation believed that area sources are not part at the time a major source determination necessarily must originate from these of the semiconductor manufacturing must be made, not the interpretation process units. Therefore, we have category for major sources and should given by the commenter. This is included the following definition to 40 not be relied on for establishing the reflected in our memorandum 1 on the CFR 63.7195: Process vent means the MACT floor. interim policy on federal enforceability point at which HAP emissions are Response: Section 112(a)(1) of the of limitations on potential to emit. In released to the atmosphere from a CAA defines major source as ‘‘any this memorandum, we stated: semiconductor manufacturing process stationary source or group of stationary [T]he EPA regulations provide that unit or storage tank by means of a stack, sources * * * that emits or has the ‘‘controls’’ (i.e., both pollution control chimney, vent, or other functionally potential to emit considering controls, equipment and operational restrictions) that equivalent opening. The HAP emission in the aggregate, 10 tpy or more of any limit a source’s maximum capacity to emit a points originating from wastewater hazardous air pollutant or 25 tpy or pollutant may be considered in determining more of any combination of hazardous its potential to emit. Historically, large treatment equipment, other than storage numbers of new or modified sources that tanks, are not considered to be a process air pollutants.’’ An area source is then otherwise would be subject to PSD and NSR vent, unless the wastewater treatment defined in section 112(a)(2) as any permitting requirements have limited their equipment emission points are stationary source that is not a major PTE in order to obtain ‘‘synthetic minor’’ connected to a common vent or exhaust source. The facilities which we used to status and thereby avoid major source plenum with other process vents. establish the MACT floor were requirements. With the advent of operating We do not believe any of the other ‘‘synthetic minor’’ sources, meaning that permit programs under Title V and the process vent exemptions requested by they reduced their potential to emit these commenters are appropriate. below the major source threshold (here, 1 ‘‘Release of Interim Policy on Federal Enforceability of Limitations on Potential to Emit’’ Research and development operations through the use of add-on control (January 22, 1996) (available at http://www.epa.gov/ are considered to be part of the overall devices and material substitution). ttn/oarpg/t5/memoranda/pte122.pdf). semiconductor manufacturing process Without these controls, these facilities
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would have the potential to emit at in the proposed rule. For inorganic floors for the different types of storage major source levels. HAP, we calculated the MACT floor to tanks in the semiconductor industry, We disagree that the MACT floors be 95 percent control or an inorganic and that it was inappropriate to use must be based solely on major sources emission limit of 0.42 ppmv. We have storage tanks from the HCl production of HAP emissions. Section 112(d)(1) of written 40 CFR 63.7184 of the final rule industry as the most representative the CAA directs us to promulgate rules to reflect these revised MACT floors. similar source. for categories of major and area sources Comment: One commenter had It was always our intent to include all of HAP emissions. Then, section several concerns with the approach storage and wastewater tanks containing 112(d)(2) mandates that these standards used to establish the MACT floor for HAP in the affected source. However, ‘‘shall require the maximum degree of storage tanks. The commenter believed based on the additional information reduction in emissions * * * that area source semiconductor provided by the industry, we have achievable for new or existing sources.’’ manufacturing facilities and HCl concluded that it was not appropriate to Section 112(d)(3) specifies how we are production sources are not part of the develop one MACT floor for all types of to determine the maximum degree of major source semiconductor tanks due to the wide range of emissions emission reduction and describes it as manufacturing category and should not from the each type of tank. While we ‘‘not less stringent than the emission have been relied on to set the storage cannot exempt an emission source control that is achieved in practice by tank MACT floor. Two commenters solely due to the low annual emissions the best controlled similar source’’ for requested that any storage tank limits from that source, we thought that the new sources, and for existing sources should be limited specifically to tanks MACT floor level of control could be describes it as ‘‘the average emission storing HCl or hydrofluoric acid (HF). influenced by the level of emissions limitation achieved by the best Another commenter argued that EPA from each type of tank and the existing performing 12 percent of the existing improperly based floors for storage regulations (i.e., RCRA) to which some sources * * *’’ Even though Congress tanks over 800 gallons on the tanks may be subject. Therefore, we saw fit to distinguish between major and performance of scrubbers. The developed separate MACT floors for area sources in many other places in commenter stated that EPA must chemical storage tanks (including waste section 112 of the CAA, they identify the relevant best performing storage tanks regulated under RCRA), specifically did not require that the floor storage tanks, determine their actual wastewater storage tanks, and be based on major sources. Throughout performance, and recalculate floors for wastewater treatment tanks. section 112(d), Congress simply used storage tanks over 800 gallons based on We found that the MACT floor level the term ‘‘source.’’ We interpret this to the average of that performance. The of control for both chemical storage mean that Congress left it to our commenter also contended that EPA tanks and wastewater storage tanks, discretion to determine the most must conduct beyond-the-floor analysis based on the top five best performing appropriate sources on which to base for storage tanks under 800 gallons to sources in each data set, is the same for the MACT floors. Accordingly, for the determine the maximum degree of each type of tank. The level of control proposed rule we used both major emissions reductions achievable. is to reduce emissions through the use sources and synthetic minor sources as One commenter argued that any final of a scrubber and is identical to the level the basis of the MACT floors. We rule should exclude hazardous waste of control used to establish the emission believe our interpretation of section storage tanks and vessels storing limits as proposed. However, based on 112(d) of the CAA is correct, and no wastewater. The commenter contended other comments we received, we changes were made for the final rule as that EPA has not made the required decided not to use the same procedure a result of these comments. MACT finding for hazardous waste to establish the emission limits for the Comment: One commenter contended storage tanks and vessels storing final rule. For wastewater treatment that EPA may not set floors for process wastewater. The commenter further tanks, we determined the MACT floor vents based on the technology of argued that hazardous waste storage level of control to be no emissions thermal oxidizers, but must identify the vessels and vessels storing wastewater reduction. best performing process vents, have low HAP concentrations and do The data set we used to establish the determine their actual performance, and not warrant regulation beyond RCRA original MACT floor for storage tank calculate floors based on the average of requirements. emissions included the type of control that performance. Another commenter Response: We agree that the (e.g., scrubbers), but no information on questioned the validity of establishing a procedure outlined by these the performance of the control devices single concentration for total HAP commenters is the best procedure for or pollutant concentration in the outlet emissions from process vents and determining the MACT floors, assuming streams. In order to establish emission requested that different control and that the appropriate data are available. limits, we previously relied on the concentration limits be set for the In the case of storage tanks, we had no performance of controls used by the HCl organic HAP and inorganic HAP such data. The only data the industry production industry on HCl storage emissions. could provide to us were the size of the tanks. We used these data because the Response: After reviewing the tank, contents of the tank, and whether majority of tanks reported by the procedure we used to establish the emissions from the tank were semiconductor industry contained HCl MACT floors in light of these comments, controlled. No performance data were as well. We considered the HCl we agree that we should first establish available for the tank emission controls production industry data to be the most a MACT floor for both organic and used by the semiconductor industry. For representative similar source for which inorganic HAP emissions from process these reasons, we used data on the we had data. vents (other than storage tanks) and then performance of the most representative The comments we received evaluate the appropriate emission limits similar source for which data were questioned whether these storage tanks for each. Based on a revised analysis, we available, which were for scrubbers on were representative, similar sources. In calculated the MACT floor for organic HCl storage tanks obtained from the HCl response to these comments, we further process vents to be 98 percent control, manufacturing industry. Based on these investigated the similarities and or an organic HAP emission limit of 20 comments, we now believe it is more differences of the semiconductor ppmv, which were the emission limits appropriate to develop separate MACT manufacturing industry storage tanks
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and the HCl production industry tanks. To evaluate cost feasibility, we materials used in or generated by a We first determined that there is a large estimated the HAP emissions from a semiconductor manufacturing process size differential between the tanks used 1,500 gallon tank containing unit. The following are not storage tanks by the semiconductor industry and concentrated HCl, assuming one for the purposes of the final rule: those used by the HCl production complete turnover per day. These • Tanks permanently attached to industry. The largest reported parameters will result in the maximum motor vehicles such as trucks, railcars, semiconductor industry storage tank amount of HAP emissions from the tank barges, or ships; was 16,000 gallons, and most were less that we would expect for the • Flow-through tanks where than 10,000 gallons. In contrast, most of semiconductor manufacturing industry. wastewater undergoes treatment (such the storage tanks reported by the HCl We then estimated the cost of a scrubber as pH adjustment) before discharge, and production industry ranged from to control these emissions by 99 are not used to accumulate wastewater; 200,000 gallons to over 2 million percent. Finally, we calculated the cost • Bottoms receiver tanks; and • gallons. We then determined that the per ton of additional HAP emission Surge control tanks. HCl stored by the semiconductor reduction achieved above the MACT Comment: One commenter reiterated industry was often diluted, while the floor level of control, which was more a previous request for EPA to delist the HCl production industry almost than $285,000 per ton. Based on this Semiconductor Manufacturing source exclusively stored concentrated HCl. result, we considered this level of category and provided information to Based on the larger tank size and the control to be infeasible on a cost basis support their request. The commenter higher concentration of material stored, and did not require emission control claimed that this information shows that the emission streams from the HCl more stringent than the MACT floor for there will be no stand alone production industry storage tanks will storage tanks less than 1,500 gallons or semiconductor manufacturing facilities. have a considerably higher pollutant wastewater treatment tanks in the final Therefore, since EPA listed this category concentration than from the rule. on the MACT source category list at a semiconductor industry storage tanks. We made an additional change for the time when there were stand alone We believe this is a more important final rule based on our revised storage facilities that were major sources, the consideration when establishing tank MACT floor analysis. Because we basis for listing the category no longer emission limits than simply looking at eliminated several tanks from the data exists. The commenter cited the the similarity of the material stored. set used in the MACT floor analysis, the preamble language from the initial Thus, we expect that the emissions cutoff for the smallest size tank for source category listing notice (57 FR streams from the semiconductor which the final rule applies increased 31576, July 16, 1992) and the first notice manufacturing industry storage tanks from 800 gallons to 1,500 gallons. revising the list (61 FR 28200, June 4, will have a very low concentration of While the storage tanks that were 1996) to support their interpretation of pollutants. used to establish the MACT floor level when a category should be included on Since the semiconductor industry of control stored either HCl or HF, we the source category list. The commenter storage tank emission streams will have believe this level of control is applicable stated that if a stand alone major source similar characteristics to those of to any material stored by a did come into existence in the future, process vents (i.e., low pollutant semiconductor manufacturing facility. EPA could promulgate a MACT concentration), we now believe the most Therefore, we do not believe that the standard at that time. Additionally, the representative similar sources for emission limits must necessarily be commenter pointed out that case-by- evaluating the MACT floor for storage limited to these two chemicals, as case MACT determinations under tanks are the semiconductor industry suggested by one of the commenters. section 112(g) of the CAA could also be process vents. Therefore, in response to In our final analysis, we determined used to control emissions from such a the comments concerning our use of that the level of control already existing source. HCl production industry storage tanks on waste storage tanks regulated under The commenter also pointed to other as the most representative similar RCRA is equivalent to the storage tank EPA actions to support their position. source, we are adopting the process vent MACT floor level of control. We also The commenter noted that EPA inorganic HAP emission limits for determined that the MACT floor for guidance issued after the National storage tanks in the final rule. wastewater treatment tanks was no Mining Association court case (National We also agree that we should have emissions reduction. Accordingly, we Mining Association v. U.S. EPA, 59 F.3d given further consideration to controls excluded both types of tanks from any 1351 (D.C. Cir. 1995)) states that section more stringent than the MACT floor for requirements in the final rule. We added 112(d) standards should be applied to storage tanks less than 800 gallons (now the following definition (based on the source categories that contain stand 1,500 gallons in the final rule as definition of ‘‘tank’’ in 40 CFR 63.901, alone major sources or that have sources discussed below) and wastewater (subpart OO—National Emission ‘‘commonly located’’ at major source treatment tanks. The MACT floor for Standards for Tanks-Level 1) and 40 facilities. The commenter also noted both of these types of tanks was CFR 63.1101 (subpart YY—National that EPA, in promulgating MACT determined to be no control. However, Emission Standards for Hazardous Air standards for industrial process cooling controls more stringent than the MACT Pollutants for Source Categories: towers (IPCT), had found that co- floor (i.e., scrubbers) are technically Generic Maximum Achievable Control location of an IPCT on a major source feasible as demonstrated by the data Technology Standards)) for ‘‘storage site is not sufficient to trigger provided by the industry on tanks tank’’ to 40 CFR 63.7195 that clarifies applicability of the rule, rather, the IPCT greater than 1,500 gallons. which tanks we intended to be covered must be co-located and an integral part In order to include emission limits under the final rule: Storage tank means of the facility. more stringent than the MACT floor a stationary unit that is constructed The commenter disagreed with EPA’s level of control in the final rule, they primarily from nonearthen materials interpretation that a source category must be feasible on both a technical and (such as wood, concrete, steel, delisting can proceed only under cost basis. Technical feasibility is fiberglass, or plastic) which provides section 112(c)(9) of the CAA. The assumed based on similar control on structural support and is designed to commenter believed that EPA has a non- larger tanks as reported by the industry. hold an accumulation of liquids or other discretionary duty under section
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112(c)(1) to periodically revise the list where sources in the category [were] determining the MACT floor. We do not in response to new information. Under commonly located on the premises of believe that the CAA authorizes the provisions specified in section major sources.’’ (57 FR 31576, July exempting an emission source solely 112(c)(1), which the commenter believes 16,1992). The EPA continues to believe due to the low annual emissions from are wholly separate from the delisting that major source determinations must that source. The outlet concentration procedure in section 112(c)(9), EPA has be based on facility-wide emissions and limits for both inorganic and organic the authority and the latitude to remove that a major source can be either a stand emissions serve as the minimum a previously listed source category from alone major source or co-located with applicable limits for the affected the MACT standard source category list. other sources that in combination emit sources. If the outlet concentration is Response: In the preamble to the or have the potential to emit over the below the applicable emission limit, no proposed rule for semiconductor major source threshold. controls are required to demonstrate manufacturing, we acknowledged We disagree with the commenter’s compliance. receipt of the pre-proposal request to reading of the preamble to the IPCT remove the Semiconductor MACT standard. In promulgating the IV. What Are the Final Standards? Manufacturing source category from the MACT standard, we said that even list of source categories and indicated though no individual source in the IPCT A. What Is the Source Category? we would respond in the final source category is itself a major source, The Semiconductor Manufacturing rulemaking (67 FR 30852, May 8, 2002). we promulgated a MACT standard in source category includes operations Section 112(d)(1) of the CAA directs light of IPCT being co-located with other used to manufacture p-type and n-type EPA to promulgate regulations for major sources of HAP (59 FR 46339, categories of major sources of HAP September 8, 1994). The IPCT MACT semiconductors and active solid-state emissions. We interpret section 112(a) provides clear precedent both for devices from a wafer substrate. Research as requiring consideration of all promulgating a semiconductor MACT and development activities located at a emissions sources in determining major standard and to not remove the site manufacturing p-type and n-type source status. Thus, if a source emits 10 Semiconductor Manufacturing source semiconductors and active solid-state tons or more per year of any single HAP category from the list of source devices are integrated into the or 25 tons or more per year of any categories. manufacturing process (that is, they are combination of HAP, it is a major Accordingly, because section 112(d) not stand alone operations), and these source. Similarly, if a source is co- requires EPA to promulgate MACT are included in the definition of located with sources in other categories standards for all major sources, and semiconductor manufacturing. and the aggregate emissions of the since the Semiconductor Manufacturing Examples of semiconductor or related combined sources is 10 or more tons per source category is a category of major solid-state devices include year of a single HAP or 25 tons or more sources, albeit, because existing sources semiconductor diodes, semiconductor per year of any combination of HAP, are co-located with other sources that in stacks, rectifiers, integrated circuits, and that group of co-located sources is a combination emit or have the potential transistors. The source category major source. This interpretation is to emit over the major source includes all manufacturing from crystal consistent with the legislative history on thresholds, EPA will not revise the list growth through wafer fabrication, and the definition of ‘‘major source,’’ which of source categories to remove the test and assembly. indicates clearly that all portions of a Semiconductor Manufacturing source major source are subject to MACT even category. The crystal growing stage is where if, standing alone, individual portions of Finally, we also believe this source crystalline wafers of silicon or other that source would not qualify as major. category is not static and that changes specific semiconducting materials are [136 Cong. Rec. S. 16927 (October 27, (either economic or process) may trigger manufactured for use as the substrate in 1990)]. operational changes that could result in the wafer fabrication process. Crystal The definition of major source also increased HAP emissions. Thus, it is not growing begins with storage of the raw includes provisions to assure that entirely clear whether those sources that materials (usually trichlorosilane, which stationary sources which would are currently ‘‘synthetic area sources’’ is refined from ordinary sand) and ends otherwise be subject to the emissions will continue to be ‘‘synthetic area with the final polishing of a wafer. standards are not excluded from control sources.’’ And accordingly, it is not The wafer fabrication process is requirements as the result of arbitrary inconceivable that the MACT standards where a group of integrated circuits are subdivision or description of the source. promulgated today will eventually be created on the wafer through a series of A stationary source potentially subject applicable to more than the one pattern-forming processes. Wafer to an emissions standard because it currently co-located facility. In addition, fabrication begins at the point where the emits a listed air pollutant is to be there is always the possibility of new wafer receives its first protective defined to include all emission points major sources being constructed in the oxidative layer and ends when a and units of such source located within future. functional integrated circuit or circuits a contiguous area and under common Comment: One commenter requested have been created on a wafer. control. that EPA reconsider delisting this Because the statute instructs EPA to source category using de minimis The test and assembly process is the consider co-located sources as major principles under section 112(c)(1) of the final step in the integrated circuit sources, we believe we must list and CAA. The commenter proposed manufacturing process and begins when promulgate standards for source exemption of all nonmajor a wafer is cut into individual chips. The categories that are major sources as a semiconductor process units from chips are then mounted onto a metal result of co-location. Accordingly, when regulation in a manner consistent with frame, connected to the leads, and we published the initial list of source the approach to applicability in section enclosed in a protective housing. The categories, we ‘‘includ[ed] categories of 112(g) of the CAA. process endpoint is the last test major sources where there was Response: The commenter’s suggested performed at an assembly facility to reasonable certainty that at least one de minimis cutoff levels are inconsistent verify proper function of a completed stationary source is a major source or with the CAA’s prescribed method for integrated circuit housing.
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B. What Is the Affected Source? vents may be controlled to a level below total vent stream organic HAP We define an affected source as a 0.42 ppmv inorganic HAP. concentration to determine whether it is General Provisions. The General stationary source, group of stationary below a specified level, you must use Provisions (40 CFR part 63, subpart A) sources, or part of a stationary source to Method 18 of 40 CFR part 60, appendix also apply to you as outlined in the final which specific NESHAP apply. Within A. For measuring the total HAP rule. The General Provisions codify a source category, we select the specific concentration of emission streams with certain procedures and criteria for all 40 emission sources (emission points or inorganic HAP to determine if it is CFR part 63 NESHAP. The General groupings of emission points) that will below a specified level, you must use Provisions contain administrative make up the affected source for that Method 320 of 40 CFR part 60, appendix procedures, preconstruction review category. To select these emission A. For measuring inorganic HAP that procedures for new sources, and are hydrogen halides, such as HCl or sources, we mainly consider the procedures for conducting compliance- constituent HAP and quantity emitted HF, you must use Method 26A of 40 related activities such as notifications, CFR part 60, appendix A. from individual or groups of emission reporting, and recordkeeping, points. Additionally, we are requiring initial performance testing, and monitoring. performance tests for all process vent For the Semiconductor Manufacturing The final rule refers to individual source category, the affected source and storage tank vent HAP emission sections of the General Provisions to control devices other than flares and includes the collection of all emphasize key sections that you should semiconductor manufacturing units certain boilers and process heaters. For be aware of. However, unless otherwise vents controlled using flares, we are not used to manufacture p-type and n-type specifically excluded in the final rule, semiconductors and active solid-state requiring performance tests because we all of the relevant General Provisions have developed design specifications devices from a wafer substrate, research requirements apply to you. and development activities integrated that ensure these devices will achieve into the manufacturing process at a V. When Must I Comply With the Final 98 percent destruction efficiency. As semiconductor manufacturing site, and Rule? with the HON, we are not promulgating storage tanks located at a major source. Existing semiconductor a requirement to perform an initial A semiconductor manufacturing manufacturing affected sources must performance test for boilers and process process unit is the equipment assembled comply with the final rule no later than heaters larger than 44 megawatts (MW) and connected by duct work or hard 3 years after May 22, 2003. The effective because they operate at high piping including: Furnaces and date is May 22, 2003. New or temperatures and residence times. In associated unit operations; associated reconstructed affected sources must general, the higher the temperature and wet and dry work benches; associated comply upon start-up or May 22, 2003, residence time, the greater the level of recovery devices; feed, intermediate, whichever is later. Details of the HAP destruction that is achieved by a and product storage tanks; product compliance requirements can be found control device. Therefore, boilers and transfer racks and connected ducts and in the General Provisions, as outlined in process heaters larger than 44 MW piping; pumps, compressors, agitators, Table 2 to the subpart. easily achieve the required 98 percent pressure-relief devices, sampling destruction efficiency or the alternative connection systems, open-ended valves VI. What Are the Testing and Initial requirement to reduce outlet or lines, valves, connectors, and Continuous Compliance Requirements? concentrations below 20 ppmv. instrumentation systems; and control In addition to the specific testing and For all other types of control devices, devices. We have identified three monitoring requirements specified the final rule requires you to conduct a distinct processes used in the below for the affected source, the final performance test to demonstrate that the manufacture of these semiconductors rule adopts the testing requirements control device can achieve the required and devices: Crystal growing, wafer specified in 40 CFR 63.7. control level and to establish operating fabrication, and assembly and test. A We are promulgating testing and parameters to be maintained to semiconductor manufacturing unit is initial and continuous compliance demonstrate continuous compliance. typically engaged in one of these requirements that are, where The testing requirements for processes. appropriate, based on procedures and semiconductor manufacturing list the methods that we have previously parameters that can be monitored for the C. What Are the Emission Standards? developed and used for sources similar common types of combustion devices. Emission limits. We are promulgating to those for which standards are being For other control devices, we require standards that regulate HAP emissions promulgated today. For example, we are that you establish site-specific from process vents and storage tank promulgating compliance determination parameter ranges for monitoring vents at semiconductor manufacturing procedures, performance tests, and test purposes through the Notification of facilities. The standards are the same for methods to determine what level of Compliance Status report and through existing and new sources. All major control a process vent needs to achieve the facility’s operating permit. sources must reduce process vent to demonstrate compliance with the Parameters selected are required to be organic HAP outlet concentrations by 98 standards. We are promulgating good indicators of continuous control percent from their uncontrolled levels compliance procedures to determine device performance. and reduce uncontrolled inorganic HAP process vent and storage tank vent flow VII. What Notification, Recordkeeping, outlet concentrations by 95 percent. As rates and HAP concentrations. The and Reporting Requirements Must I an alternative, process vents may be promulgated test methods parallel what Follow? controlled to a level below 20 ppmv we have used for process vents in organic HAP and 0.42 ppmv inorganic previous organic HAP emissions We are promulgating notification, HAP. In addition, all major sources standards (e.g., the HON) and inorganic recordkeeping, and reporting must reduce storage tank vent HAP HAP emission standards. For measuring requirements in accordance with 40 outlet inorganic HAP concentrations by vent stream flow rate, you must use CFR part 63, subpart A and other 95 percent from their uncontrolled Method 2, 2A, 2C, 2D, 2F, or 2G of 40 previously promulgated NESHAP for levels. As an alternative, storage tank CFR part 60, appendix A. For measuring similar source categories.
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We are requiring that owners or cause; whether it occurred during a B. What Are the Cost Impacts? operators of semiconductor period of startup, shutdown, or Although we estimate there are manufacturing affected sources submit malfunction; and whether and what approximately 127 facilities engaged in the following four types of reports: An time periods the CMS was inoperative semiconductor production, we estimate Initial Notification report, a Notification or out of control. that the source category contains only of Compliance Status report, periodic We are requiring that you submit an one existing major source subject to the compliance reports, reports of changes immediate startup, shutdown, and regulatory provisions specified under and other specified events. Records of malfunction report if you had a startup, the final rule. The remaining facilities reported information and other shutdown, or malfunction that is not are either area sources or synthetic information necessary to document consistent with your SSMP. minor sources, which are sources that Other reporting requirements include compliance with the promulgated have the potential to emit above major reports to notify the regulatory authority standards are required to be kept for 5 source thresholds but have taken before or after a specific event (e.g., if years. Equipment design records would enforceable permit conditions limiting be required to be kept for the life of the a process change is made, requests for extension of repair period). their HAP emissions to below these equipment. major source thresholds. For the Initial Notification report, we VIII. What Are the Environmental, We estimate the annualized cost for are requiring that you list the Energy, and Economic Impacts of the the one major source affected by this semiconductor manufacturing Final Rule? final rule to be $2,300, solely to comply operations at your facility, and the with monitoring, inspecting, reporting provisions of the final rule that may This section presents projected and recordkeeping requirements. (Note: apply. The Initial Notification report impacts for existing sources only. We This source meets the CAA section 112 must also state whether your facility can did not calculate impacts for new definition of ‘‘major source’’ not because achieve compliance by the specified sources because we do not project any it emits 10 tons or more of any one HAP compliance date. You must submit this new major sources will commence or 25 tons or more of HAP in aggregate, notification by May 21, 2004, for construction in the foreseeable future. but because it is collocated at a plant existing sources, and within 180 days We expect that any new sources will site that is a major source subject to before commencement of construction have HAP emissions below major source other NESHAP. We estimate this or reconstruction of an affected source. thresholds. The industry trend over the For the Notification of Compliance past several years has been that HAP semiconductor manufacturing source Status report, we are requiring that you emissions have decreased while emits less than one ton of HAP per submit the information necessary to semiconductor production has year.) We project there will be no capital demonstrate that compliance has been increased. As a result, only one source or operating costs for control achieved, such as the results of in the industry is still a major source of equipment. Further, we estimate a one- performance tests and design analyses. HAP, and only because it is collocated time total cost of $33,000 for the For each test method that you use for a at a facility with other HAP-emitting approximately 126 non-major sources to particular kind of emission point (e.g., operations. We do not project that any read the rule. We estimate that there process vent), you must submit one other new semiconductor sources will will be no impacts on new sources complete test report. This notification be built on the site of another major because we do not project that any new must also include the specific range HAP emitting operation. We also project major sources will be built over the next established for each monitored that the types of technologies that have 3 years. parameter for each emission point for evolved (e.g., producing larger wafers), C. What Are the Economic Impacts? demonstrating continuous compliance, which are in general emit fewer HAP and the rationale for why this range per chip manufactured, will continue. The final rule applies to only one major existing source, and no significant indicates proper operation of the control A. What Are the Secondary and Energy device. new control equipment requirements Impacts? We are requiring that you submit are expected. We estimate the MIRR semiannual compliance reports. These We do not anticipate any significant costs for this facility to be only $6,956 reports must include a statement that no increase in national annual energy usage over a 3-year period. Therefore, no deviations from the emission limitations as a result of the final rule. Energy economic impact on the industry is occurred during the reporting period, impacts include changes in energy use, expected. and that no continuous monitoring typically increases, and secondary air IX. Statutory and Executive Order system (CMS) was inoperative, inactive, impacts associated with increased Reviews malfunctioning, out-of-control, repaired, energy use. Increases in energy use are or adjusted. Additionally, a statement associated with the operation of control A. Executive Order 12866: Regulatory must be included if you had a startup, equipment—in this case, the use of Planning and Review shutdown, or malfunction during the thermal oxidizers and scrubbers—to Under Executive Order 12866 (58 FR reporting period, and you took actions control process vents. Secondary air 51735, October 4, 1993), we must consistent with your SSMP. For process impacts associated with increased determine whether the regulatory action and storage tank vents, records of energy use are the emission of is ‘‘significant’’ and therefore subject to continuously monitored parameters particulates, sulfur oxides (SOX), and review by the Office of Management and must be kept. Records that such nitrogen oxides (NOX). These secondary Budget (OMB) and the requirements of inspections or measurements were impacts are associated with power the Executive Order. The Executive performed must be kept, but results are plants that would supply the increased Order defines ‘‘significant regulatory included in your periodic report only if energy demand. Since we project the action’’ as one that is likely to result in there is a deviation from the operating final rule will apply to only one existing a rule that may: limit. For each deviation from an major source, no significant new control (1) Have an annual effect on the emission limit, the semiannual equipment requirements are expected. economy of $100 million or more or compliance reports must document the Therefore, secondary and energy adversely affect in a material way the time periods of each deviation; its impacts will be negligible. economy, a sector of the economy,
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productivity, competition, jobs, the period of the ICR are estimated at above definition of small entities, the environment, public health or safety, or $6,956. EPA has determined that there are no State, local, or tribal governments or Burden means the total time, effort, or small businesses within this source communities; financial resources expended by persons category that would be subject to the (2) create a serious inconsistency or to generate, maintain, retain, or disclose final rule. otherwise interfere with an action taken or provide information to or for a or planned by another agency; Federal agency. This includes the time D. Unfunded Mandates Reform Act (3) materially alter the budgetary needed to review instructions; develop, Title II of the Unfunded Mandates impact of entitlements, grants, user fees, acquire, install, and utilize technology Reform Act of 1995 (UMRA), Public or loan programs, or the rights and and systems for the purposes of Law 104–4, establishes requirements for obligation of recipients thereof; or collecting, validating, and verifying Federal agencies to assess the effects of (4) raise novel legal or policy issues information, processing and their regulatory actions on State, local, arising out of legal mandates, the maintaining information, and disclosing and tribal governments and the private President’s priorities, or the principles and providing information; adjust the sector. Under section 202 of the UMRA, set forth in the Executive Order. existing ways to comply with any EPA generally must prepare a written It has been determined that this rule previously applicable instructions and statement, including a cost-benefit is not a ‘‘significant regulatory action’’ requirements; train personnel to be able analysis, for proposed and final rule under the terms of Executive Order to respond to a collection of with ‘‘Federal mandates’’ that may 12866 and is therefore not subject to information; search data sources; result in expenditures to State, local, OMB review. complete and review the collection of and tribal governments, in the aggregate, B. Paperwork Reduction Act information; and transmit or otherwise or to the private sector, of $100 million disclose the information. or more in any 1 year. Before The information collection An agency may not conduct or promulgating an EPA rule for which a requirements in the final rule have been sponsor, and a person is not required to written statement is needed, section 205 submitted for approval to OMB under respond to, a collection of information of the UMRA generally requires EPA to the Paperwork Reduction Act, 44 U.S.C. unless it displays a currently valid OMB identify and consider a reasonable 3501, et seq. An Information Collection control number. The OMB control number of regulatory alternatives and Request (ICR) document has been numbers for EPA’s regulations are listed adopt the least costly, most cost- prepared by EPA (ICR No. 2042.01) and in 40 CFR part 9 and 48 CFR, chapter effective, or least burdensome a copy may be obtained from Susan 15. The OMB control number for the alternative that achieves the objectives Auby by mail at the Collection information collection requirements in of the rule. The provisions of section Strategies Division (2822), U.S. EPA, this rule will be listed in an amendment 205 do not apply when they are 1200 Pennsylvania Avenue, NW., to 40 CFR part 9 in a subsequent inconsistent with applicable law. Washington, DC 20460, by e-mail at Federal Register document after OMB Moreover, section 205 allows EPA to [email protected], or by calling (202) approves the ICR. adopt an alternative other than the least 566–1672. A copy may also be costly, most cost-effective, or least C. Regulatory Flexibility Act downloaded off the internet at http:// burdensome alternative if the www.epa.gov/icr. The information The EPA has determined that it is not Administrator publishes with the final requirements are not enforceable until necessary to prepare a regulatory rule an explanation why that alternative OMB approves them. flexibility analysis in connection with was not adopted. Before EPA establishes The information requirements are the final rule. The EPA has also any regulatory requirements that may based on notification, recordkeeping, determined that this final rule will not significantly or uniquely affect small and reporting requirements in the have a significant economic impact on governments, including tribal NESHAP General Provisions (40 CFR a substantial number of small entities. governments, it must have developed part 63, subpart A), which are For purposes of assessing the impacts of under section 203 of the UMRA a small mandatory for all operators subject to this final rule on small entities, small government agency plan. The plan must national emission standards. These entity is defined as: (1) A small business provide for notifying potentially recordkeeping and reporting according to Small Business affected small governments, enabling requirements are specifically authorized Administration (SBA) size standards for officials of affected small governments by section 114 of the CAA (42 U.S.C. NAICS code 334413 (i.e., semiconductor to have meaningful and timely input in 7414). All information submitted to EPA crystal growing facilities, semiconductor the development of EPA regulatory pursuant to the recordkeeping and wafer fabrication facilities, proposals with significant Federal reporting requirements for which a semiconductor test and assembly intergovernmental mandates, and claim of confidentiality is made is facilities) whose parent company has informing, educating, and advising safeguarded according to Agency 500 or fewer employees; (2) a small small governments on compliance with policies set forth in 40 CFR part 2, governmental jurisdiction that is a the regulatory requirements. subpart B. government of a city, county, town, The EPA has determined that the final The annual monitoring, reporting, and school district or special district with a rule does not contain a Federal mandate recordkeeping burden for this population of less than 50,000; and (3) that may result in expenditures of $100 collection, as averaged over the first 3 a small organization that is any not-for- million or more to State, local, and years after the effective date of the rule, profit enterprise which is independently tribal governments, in the aggregate, or is estimated to be 41 labor hours per owned and operated and is not the private sector in any 1 year. The year at a total annual cost of $2,319. dominant in its field. maximum total annual cost of the final This estimate includes a one-time plan After considering the economic rule for any year has been estimated to for demonstrating compliance, annual impacts of today’s final rule on small be about $35,800. Thus, the final rule is compliance certification reports, entities, EPA has concluded that this not subject to the requirements of notifications, and recordkeeping. Total action will not have a significant sections 202 and 205 of the UMRA. In labor burden associated with the economic impact on a substantial addition, EPA has determined that the monitoring requirements over the 3-year number of small entities. Based on the standards contains no regulatory
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requirements that might significantly or the regulatory action meets both criteria, documented and are placed in the uniquely affect small governments the EPA must evaluate the docket A–97–15 for the final rule. because it contains no requirements that environmental health or safety effects of The voluntary consensus standard apply to such governments or impose the planned rule on children, and ASTM D6420–99, ‘‘Standard Test obligations upon them. explain why the planned regulation is Method for Determination of Gaseous E. Executive Order 13132: Federalism preferable to other potentially effective Organic Compounds by Direct Interface and reasonably feasible alternatives Gas Chromatography-Mass Executive Order 13132, entitled considered by the Agency. Spectrometry (GC/MS),’’ is appropriate ‘‘Federalism’’ (64 FR 43255, August 10, The EPA interprets Executive Order in the cases described below for 1999), requires the EPA to develop an 13045 as applying only to those inclusion in this rule in addition to EPA accountable process to ensure regulatory actions that are based on Method 18 codified at 40 CFR Part 60 ‘‘meaningful and timely input by State health or safety risks, such that the Appendix A for the measurement of and local officials in the development of analysis required under section 5–501 of toluene and total organic HAP. regulatory policies that have federalism the Executive Order has the potential to Similar to EPA’s performance-based implications.’’ ‘‘Policies that have influence the regulation. The final rule Method 18, ASTM D6420–99 is also a federalism implications’’ are defined in is not subject to Executive Order 13045 performance-based method for the Executive Order to include because it is based on technology measurement of gaseous organic regulations that have ‘‘substantial direct performance and not on an assessment compounds. However, ASTM D6420–99 effects on the States, on the relationship of health or safety risks. Furthermore, was written to support the specific use between the national government and the final rule has been determined not of highly portable and automated GC/ the States, or on the distribution of to be ‘‘economically significant’’ as MS. While offering advantages over the power and responsibilities among the defined under Executive Order 12866. traditional Method 18, the ASTM various levels of government.’’ method does allow some less stringent The final rule does not have H. Executive Order 13211: Actions That criteria for accepting GC/MS results federalism implications. It will not have Significantly Affect Energy Supply, than required by Method 18. Therefore, substantial direct effects on the States, Distribution, or Use ASTM D6420–99 is a suitable on the relationship between the national The final rule is not subject to alternative to Method 18 only where: (1) government and the States, or on the Executive Order 13211 (66 FR 28355, The target compound(s) are those listed distribution of power and May 22, 2001) because it is not a in Section 1.1 of ASTM D6420–99, and responsibilities among the various significant regulatory action under (2) the target concentration is between levels of government, as specified in Executive Order 12866. 150 ppbv and 100 ppmv. Executive Order 13132. Thus, Executive For target compound(s) not listed in Order 13132 does not apply to the rule. I. National Technology Transfer Section 1.1 of ASTM D6420–99, but Although section 6 of Executive Order Advancement Act potentially detected by mass 13132 does not apply to the rule, EPA Section 12(d) of the National spectrometry, the regulation specifies did consult with State and local officials Technology Transfer and Advancement that the additional system continuing to enable them to provide timely input Act (NTTAA) of 1995 (Pub. L. No. 104– calibration check after each run, as in the development of the final rule. 113; 15 U.S.C. 272 note) directs the EPA detailed in Section 10.5.3 of the ASTM F. Executive Order 13175: Consultation to use voluntary consensus standards in method, must be followed, met, and Coordination With Indian Tribal their regulatory and procurement documented, and submitted with the Governments activities unless to do so would be data report even if there is no moisture Executive Order 13175, entitled inconsistent with applicable law or condenser used or the compound is not ‘‘Consultation and Coordination with otherwise impractical. Voluntary considered water soluble. For target Indian Tribal Governments’’ (65 FR consensus standards are technical compound(s) not listed in Section 1.1 of 67249, November 9, 2000), requires the standards (e.g., materials specifications, ASTM D6420–99, and not amenable to EPA to develop an accountable process test methods, sampling procedures, detection by mass spectrometry, ASTM to ensure ‘‘meaningful and timely input business practices) developed or D6420–99 does not apply. by tribal officials in the development of adopted by one or more voluntary As a result, EPA will cite ASTM regulatory policies that have tribal consensus bodies. The NTTAA directs D6420–99 in this rule. The EPA will implications.’’ The final rule does not EPA to provide Congress, through also cite Method 18 as a gas have tribal implications, as specified in annual reports to the Office of chromatography (GC) option in addition Executive Order 13175. No tribal Management and Budget (OMB), with to ASTM D6420–99. This will allow the governments own or operate explanations when an agency does not continued use of GC configurations semiconductor manufacturing facilities. use available and applicable voluntary other than GC/MS. Thus, Executive Order 13175 does not consensus standards. In addition to the voluntary apply to the final rule. The final rule involves technical consensus standard EPA cites in this standards. The EPA cites the following rule, the search for emissions G. Executive Order 13045: Protection of standards in this rule: EPA Methods 1, measurement procedures identified 14 Children From Environmental Health & 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, other voluntary consensus standards. Safety Risks 18, 25, 25A, 26, 26A, and 320. The EPA determined that 11 of these 14 Executive Order 13045 (62 FR 19885, Consistent with the NTTAA, EPA standards identified for measuring April 23, 1997) applies to any rule that: conducted searches to identify emissions of the HAPs or surrogates (1) Is determined to be ‘‘economically voluntary consensus standards in subject to emission standards in this significant’’ as defined under Executive addition to these EPA method. No rule were impractical alternatives to Order 12866, and (2) concerns an applicable voluntary consensus EPA test methods for the purposes of environmental health or safety risk that standards were identified for EPA this rule. Therefore, EPA does not EPA has reason to believe may have a Methods 1A, 2A, 2D, 2F, 2G. The search intend to adopt these standards for this disproportionate effect on children. If and review results have been purpose. The reasons for this
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determination for the 11 methods are until 60 days after it is published in the 63.7194 Who implements and enforces this discussed in the docket. Federal Register. This action is not a subpart? Two of the 14 voluntary consensus ‘‘major rule’’ as defined by 5 U.S.C. 63.7195 What definitions apply to this standards identified in this search were 804(2). The rule will be effective May subpart? not available at the time the review was 22, 2003. Tables to Subpart BBBBB of Part 63 conducted for the purposes of the final List of Subjects in 40 CFR Part 63 Table 1 to Subpart BBBBB of Part 63— rule because they are under Requirements for Performance Tests development by a voluntary consensus Environmental protection, Air Table 2 to Subpart BBBBB of Part 63— body: ASME/BSR MFC 13M, ‘‘Flow pollution control, Hazardous Applicability of General Provisions to Measurement by Velocity Traverse,’’ for substances, Intergovernmental relations, Subpart BBBBB EPA Method 2 (and possibly 1); and Reporting and recordkeeping What This Subpart Covers ASME/BSR MFC 12M, ‘‘Flow in Closed requirements. Conduits Using Multiport Averaging Dated: February 28, 2003. § 63.7180 What is the purpose of this subpart? Pitot Primary Flowmeters,’’ for EPA Christine T. Whitman, Method 2. This subpart establishes national The voluntary consensus standard Administrator. ■ emission standards for hazardous air ASTM D6348–98, ‘‘Determination of For the reasons stated in the preamble, pollutants (NESHAP) for semiconductor Gaseous Compounds by Extractive title 40, chapter I, part 63 of the Code of manufacturing facilities. This subpart Direct Interface Fourier Transform the Federal Regulations is amended as also establishes requirements to (FTIR) Spectroscopy,’’ has been follows: demonstrate initial and continuous reviewed by the EPA as a potential PART 63—[AMENDED] compliance with the emission alternative to EPA Method 320. standards. Suggested revisions to ASTM D6348–98 ■ 1. The authority citation for part 63 were sent to ASTM by the EPA that continues to read as follows: § 63.7181 Am I subject to this subpart? would allow the EPA to accept ASTM (a) You are subject to this subpart if D6348–98 as an acceptable alternative. Authority: 42 U.S.C. 7401, et seq. you own or operate a semiconductor The ASTM Subcommittee D22–03 is ■ 2. Part 63 is amended by adding manufacturing process unit that is a currently undertaking a revision of subpart BBBBB to read as follows: major source of hazardous air pollutants ASTM D6348–98. Because of this, we (HAP) emissions or that is located at, or are not citing this standard as a Subpart BBBBB—National Emission is part of, a major source of HAP acceptable alternative for EPA Method Standards for Hazardous Air Pollutants emissions. 320 in the final rule today. However, for Semiconductor Manufacturing (b) A major source of HAP emissions upon successful ASTM balloting and Sec. is any stationary source or group of demonstration of technical equivalency stationary sources located within a with the EPA FTIR methods, the revised What This Subpart Covers contiguous area and under common ASTM standard could be incorporated 63.7180 What is the purpose of this control that emits or has the potential to by reference for EPA regulatory subpart? emit, considering controls, in the applicability. In the interim, facilities 63.7181 Am I subject to this subpart? aggregate, any single HAP at a rate of 10 have the option to request ASTM 63.7182 What parts of my facility does this tons per year (tpy) or more or any subpart cover? D6348–98 as an alternative test method combination of HAP at a rate of 25 tpy under 40 CFR 63.7(f) and 63.8(f) on a 63.7183 When do I have to comply with this subpart? or more. case-by-case basis. Table 1 to subpart BBBBB lists the Emission Standards § 63.7182 What parts of my facility does this subpart cover? EPA testing methods included in the 63.7184 What emission limitations, final rule. Under 40 CFR 63.7(f) and operating limits, and work practice (a) This subpart applies to each new, 63.8(f) of subpart A, a source may apply standards must I meet? reconstructed, or existing affected to EPA for permission to use alternative Compliance Requirements source that you own or operate that test methods or alternative monitoring manufactures semiconductors. 63.7185 What are my general requirements requirements in place of any of the EPA (b) An affected source subject to this for complying with this subpart? subpart is the collection of all testing methods, performance 63.7186 By what date must I conduct specifications, or procedures. performance tests or other initial semiconductor manufacturing process units used to manufacture p-type and n- J. Congressional Review Act compliance demonstrations? 63.7187 What performance tests and other type semiconductors and active solid- The Congressional Review Act, 5 compliance procedures must I use? state devices from a wafer substrate, U.S.C. 801, et seq., as added by the 63.7188 What are my monitoring including research and development SBREFA, generally provides that before installation, operation, and maintenance activities integrated into a a rule may take effect, the agency requirements? semiconductor manufacturing process promulgating the rule must submit a Applications, Notifications, Reports, and unit. A semiconductor manufacturing rule report, which includes a copy of Records process unit includes the equipment the rule, to each House of the Congress 63.7189 What applications and assembled and connected by ductwork and to the Comptroller General of the notifications must I submit and when? or hard-piping including furnaces and United States. The EPA will submit a 63.7190 What reports must I submit and associated unit operations; associated report containing the rule and other when? wet and dry work benches; associated required information to the United 63.7191 What records must I keep? recovery devices; feed, intermediate, States Senate, the United States House 63.7192 In what form and how long must I and product storage tanks; product keep my records? of Representatives, and the Comptroller transfer racks and connected ducts and General of the United States prior to Other Requirements and Information piping; pumps, compressors, agitators, publication of the rule in the Federal 63.7193 What parts of the General pressure-relief devices, sampling Register. A major rule cannot take effect Provisions apply to me? connecting systems, open-ended valves
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or lines, valves, connectors, and Emission Standards system requirements) and 63.994 instrumentation systems; and control (halogen scrubber requirements); the § 63.7184 What emission limitations, applicable general monitoring devices. operating limits, and work practice (c) Your affected source is a new standards must I meet? requirements of § 63.996; the applicable affected source if you commence performance test requirements; and the (a) If you have a new, reconstructed, monitoring, recordkeeping and construction of the affected source after or existing affected source, as defined in reporting requirements referenced May 8, 2002, and you meet the § 63.7182(b), you must comply with all therein. applicability criteria in § 63.7181 at the applicable emission limitations in this (1) Reduce the emissions of inorganic section on and after the compliance time you commence construction. HAP from each storage tank by 95 dates specified in § 63.7183. (d) Your affected source is a percent by weight. (b) Process vents—organic HAP reconstructed affected source if you emissions. For each process vent that (2) Reduce or maintain the meet the criteria for ‘‘reconstruction,’’ as emits organic HAP, other than process concentration of emitted inorganic HAP defined in § 63.2. vents from storage tanks, you must limit from the process vent to less than or (e) Your source is an existing affected organic HAP emissions to the level equal to 0.42 ppmv. source if it is not a new or reconstructed specified in paragraph (b)(1) or (2) of (e) You must comply with the affected source. this section. These limitations can be applicable work practice standards and met by venting emissions from your operating limits contained in § 63.7183 When do I have to comply with process vent through a closed vent § 63.982(a)(1) and (2). The closed vent this subpart? system to any combination of control system inspection requirements of (a) If you have a new or reconstructed devices meeting the requirements of § 63.983(c), as referenced by § 63.982(a)(1) and (2), do not apply. affected source, you must comply with § 63.982(a)(2). this subpart according to paragraphs (1) Reduce the emissions of organic Compliance Requirements (a)(1) and (2) of this section. HAP from the process vent stream by 98 percent by weight. § 63.7185 What are my general (1) If you start up your affected source (2) Reduce or maintain the requirements for complying with this before May 22, 2003, then you must concentration of emitted organic HAP subpart? comply with the emission standards for from the process vent to less than or (a) You must be in compliance with new and reconstructed sources in this equal to 20 parts per million by volume the requirements of § 63.7184 at all subpart no later than May 22, 2003. (ppmv). times, except during periods of startup, (2) If you start up your affected source (c) Process vents—inorganic HAP shutdown, or malfunction. after May 22, 2003, then you must emissions. For each process vent that (b) You must always operate and comply with the emission standards for emits inorganic HAP, other than process maintain your affected source, including new and reconstructed sources in this vents from storage tanks, you must limit air pollution control and monitoring subpart upon startup of your affected inorganic HAP emissions to the level equipment, according to the provisions source. specified in paragraph (c)(1) or (2) of in § 63.6(e)(1)(i). this section. These limitations can be (c) You must develop and implement (b) If you have an existing affected met by venting emissions from your a written startup, shutdown, and source, you must comply with the process vent through a closed vent malfunction plan (SSMP). Your SSMP emission standards for existing sources system to a halogen scrubber meeting must be prepared in accordance with no later than 3 years from May 22, 2003. the requirements of §§ 63.983 (closed the provisions in § 63.6(e)(3). (c) If you have an area source that vent system requirements) and 63.994 (d) You must perform all the items increases its emissions or its potential to (halogen scrubber requirements); the listed in paragraphs (d)(1) through (3) of emit such that it becomes a major source applicable general monitoring this section: of HAP and an affected source subject requirements of § 63.996; the applicable (1) Submit the necessary notifications to this subpart, paragraphs (c)(1) and (2) performance test requirements; and the in accordance with § 63.7189. of this section apply. monitoring, recordkeeping and (2) Submit the necessary reports in reporting requirements referenced accordance with § 63.7190. (1) Any portion of your existing therein. (3) Maintain all necessary records you facility that is a new affected source as (1) Reduce the emissions of inorganic have used to demonstrate compliance specified at § 63.7182(c), or a HAP from the process vent stream by 95 with this subpart in accordance with reconstructed affected source as percent by weight. § 63.7191. specified at § 63.7182(d), must be in (2) Reduce or maintain the compliance with this subpart upon concentration of emitted inorganic HAP § 63.7186 By what date must I conduct startup. from the process vent to less than or performance tests or other initial compliance demonstrations? (2) Any portion of your facility that is equal to 0.42 ppmv. an existing affected source, as specified (d) Storage tanks. For each storage For each process vent or storage tank at § 63.7182(e), must be in compliance tank, 1,500 gallons or larger, you must vent emission limitation in § 63.7184 for limit total HAP emissions to the level which initial compliance is with this subpart by not later than 3 specified in paragraph (d)(1) or (2) of demonstrated by meeting a percent by years after it becomes a major source. this section if the emissions from the weight HAP emissions reduction, or a (d) You must meet the notification storage tank vent contains greater than HAP concentration limitation, you must requirements in § 63.7189 and in 0.42 ppmv inorganic HAP. These conduct performance tests or an initial subpart A of this part. You must submit limitations can be met by venting compliance demonstration within 180 some of the notifications (e.g., Initial emissions from your storage tank days after the compliance date that is Notification) before the date you are through a closed vent system to a specified for your source in § 63.7183 required to comply with the emission halogen scrubber meeting the and according to the provisions in limitations in this subpart. requirements of §§ 63.983 (closed vent § 63.7(a)(2).
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§ 63.7187 What performance tests and emissions potential represented by your than fuels, received by the control other compliance procedures must I use? design evaluation. device. (a) You must conduct each (d) During periods of startup, (1) For a condenser, the design performance test in Table 1 to this shutdown, and malfunction, you must evaluation shall consider the vent subpart that applies to you as specified operate in accordance with your SSMP. stream flow rate, relative humidity, and for process vents in § 63.982(a)(2) and (e) For each monitoring system temperature and shall establish the storage tanks in § 63.982(a)(1). required in this section, you must design outlet organic HAP compound Performance tests must be conducted develop and submit for approval a site- concentration level, design average under maximum operating conditions or specific monitoring plan that addresses temperature of the condenser exhaust HAP emissions potential. Section the criteria specified in paragraphs (e)(1) vent stream, and the design average 63.982(a)(1) and (2) only includes through (3) of this section. temperatures of the coolant fluid at the methods to measure the total organic (1) Installation of the continuous condenser inlet and outlet. The regulated material or total organic monitoring system (CMS) sampling temperature of the gas stream exiting the carbon (TOC) concentration. The EPA probe or other interface at a condenser must be measured and used Methods 26 and 26A are included in measurement location relative to each to establish the outlet organic HAP Table 1 to this subpart in addition to the affected process unit such that the concentration. test methods contained within measurement is representative of (2) For a carbon adsorption system § 63.982(a)(1) and (2). The EPA Method control of the exhaust emissions (e.g., that regenerates the carbon bed directly 26 or 26A must be used for testing on or downstream of the last control onsite in the control device such as a regulated material containing inorganic device); fixed-bed adsorber, the design HAP. Method 320 of 40 CFR part 63, (2) Performance and equipment evaluation shall consider the vent appendix A, must be used to measure specifications for the sample interface, stream flow rate, relative humidity, and total vapor phase organic and inorganic the pollutant concentration or temperature and shall establish the HAP concentrations. parametric signal analyzer, and the data design exhaust vent stream organic (b) If, without the use of a control collection and reduction system; and compound concentration level, (3) Performance evaluation device, your process vent stream has an adsorption cycle time, number and procedures and acceptance criteria (e.g., organic HAP concentration of 20 ppmv capacity of carbon beds, type and calibrations). working capacity of activated carbon or less or an inorganic HAP (f) In your site-specific monitoring used for carbon beds, design total concentration of 0.42 ppmv or less, or plan, you must also address the regeneration stream mass or volumetric your storage tank vent stream has an procedural processes in paragraphs flow over the period of each complete inorganic HAP concentration of 0.42 (f)(1) through (3) of this section. ppmv or less, you may demonstrate that (1) Ongoing operation and carbon bed regeneration cycle, design the vent stream is compliant by maintenance procedures in accordance carbon bed temperature after engineering assessments and with the general requirements of regeneration, design carbon bed calculations or by conducting the § 63.8(c)(1), (3), (4)(ii), (7), and (8); regeneration time, and design service applicable performance test (2) Ongoing data quality assurance life of carbon. For vacuum desorption, requirements specified in Table 1 to this procedures in accordance with the the pressure drop shall be included. subpart. Your engineering assessments general requirements of § 63.8(d); and (3) For a carbon adsorption system and calculations, as with performance (3) Ongoing recordkeeping and that does not regenerate the carbon bed tests (as specified in § 63.982(a)(1) and reporting procedures in accordance with directly onsite in the control device (2)), must represent your maximum the general requirements of § 63.10(c), such as a carbon canister, the design operating conditions or HAP emissions (e)(1), and (e)(2)(i). evaluation shall consider the vent potential and must be approved by the (g) You must conduct a performance stream mass or volumetric flow rate, Administrator. You must demonstrate evaluation of each CMS in accordance relative humidity, and temperature and continuous compliance by certifying with your site-specific monitoring plan. shall establish the design exhaust vent that your operations will not exceed the (h) You must operate and maintain stream organic compound concentration maximum operating conditions or HAP the CMS in continuous operation level, capacity of carbon bed, type and emissions potential represented by your according to the site-specific monitoring working capacity of activated carbon engineering assessments, calculations, plan. used for carbon bed, and design carbon or performance test. (i) Design evaluation. To demonstrate replacement interval based on the total (c) If you are using a control device that a control device meets the required carbon working capacity of the control to comply with the emission limitations percent by weight inorganic HAP device and source operating schedule. in § 63.7184 and the inlet concentration emission reduction limitation in (4) For a scrubber, the design of HAP to the control device is 20 ppmv § 63.7184(c)(1) or (d)(1), a design evaluation shall consider the vent or less, then you may demonstrate that evaluation must address the stream composition, constituent the control device meets the percent by composition of the inorganic HAP concentrations, liquid-to-vapor ratio, weight HAP emission reduction concentration of the vent stream scrubbing liquid flow rate and limitation in § 63.7184(c)(1) or (d)(1) by entering the control device. A design concentration, temperature, and the conducting a design evaluation as evaluation also must address other vent reaction kinetics of the constituents specified in paragraph (i) of this section. stream characteristics and control with the scrubbing liquid. The design Your design evaluation must represent device operating parameters as specified evaluation shall establish the design your maximum operating conditions or in any one of paragraphs (i)(1) through exhaust vent stream organic compound HAP emissions potential and must be (5) of this section, depending on the concentration level and will include the approved by the Administrator. You type of control device that is used. If the additional information in paragraphs must demonstrate continuous vent stream is not the only inlet to the (i)(5)(i) and (ii) of this section for trays compliance by certifying that your control device, the efficiency and a packed column scrubber. operations will not exceed the demonstration must also consider all (i) Type and total number of maximum operating conditions or HAP other vapors, gases, and liquids, other theoretical and actual trays;
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(ii) Type and total surface area of Notification of Compliance Status before no later than July 31 or January 31, packing for entire column, and for the close of business on the 30th whichever date follows the end of the individual packed sections if column calendar day following the completion first 12 calendar months after the contains more than one packed section. of the initial compliance demonstration. compliance date that is specified for If you used the design evaluation your affected source in § 63.7183. § 63.7188 What are my monitoring procedure in § 63.7187(i) to demonstrate installation, operation, and maintenance (3) Each subsequent periodic requirements? compliance, you must include the compliance report must cover the results of the design evaluation in the If you comply with the emission semiannual reporting period from Notification of Compliance Status. January 1 through June 30 or the limitations of § 63.7184 by venting the (2) For each initial compliance emissions of your semiconductor semiannual reporting period from July 1 demonstration required that includes a through December 31. process vent through a closed vent performance test conducted according system to a control device, you must to the requirements in Table 1 to this (4) Each subsequent periodic comply with the requirements of subpart, you must submit a notification compliance report must be postmarked paragraphs (a) and (b) of this section. of the date of the performance or delivered no later than July 31 or (a) You must meet the applicable evaluation at least 60 days prior to the January 31, whichever date is the first general monitoring, installation, date the performance evaluation is date following the end of the operation, and maintenance scheduled to begin as required in semiannual reporting period. requirements specified in § 63.996. § 63.8(e)(2). (b) You must meet the monitoring, (5) For each affected source that is installation, operation, and maintenance § 63.7190 What reports must I submit and subject to permitting regulations requirements specified for closed vent when? pursuant to 40 CFR part 70 or 40 CFR part 71, and if the permitting authority systems and applicable control devices (a) You must submit each of the has established dates for submitting in §§ 63.983 through 63.995. If you used following reports that apply to you. semiannual reports pursuant to 40 CFR the design evaluation procedure in (1) Periodic compliance reports. You 70.6(a)(3)(iii)(A) or 40 CFR § 63.7187(i) to demonstrate compliance, must submit a periodic compliance 71.6(a)(3)(iii)(A), you may submit the you must use the information from the report that contains the information first and subsequent periodic design evaluation to establish the required under paragraphs (c) through compliance reports according to the operating parameter level for monitoring (e) of this section, and any requirements dates the permitting authority has of the control device. specified to be reported for process established instead of according to the vents in § 63.982(a)(2) and storage tanks Applications, Notifications, Reports, dates in paragraphs (b)(1) through (4) of in § 63.982(a)(1). and Records this section. (2) Immediate startup, shutdown, and § 63.7189 What applications and malfunction report. You must submit an (c) The periodic compliance report notifications must I submit and when? Immediate Startup, Shutdown, and must contain the information specified (a) You must submit all of the Malfunction Report if you had a startup, in paragraphs (c)(1) through (5) of this applications and notifications in shutdown, or malfunction during the section. §§ 63.7(b) and (c); 63.8(e), (f)(4) and reporting period that is not consistent (1) Company name and address. (f)(6); and 63.9(b) through (e), (g) and (h) with your SSMP. Your report must (2) Statement by a responsible official that apply to you by the dates specified. contain actions taken during the event. (b) As specified in § 63.9(b)(2), if you You must submit this report by fax or with that official’s name, title, and start up your affected source before May telephone within 2 working days after signature, certifying the truth, accuracy, 22, 2003, you must submit an Initial starting actions inconsistent with you and completeness of the content of the Notification not later than 120 calendar SSMP. You are required to follow up report. days after May 22, 2003. this report with a report specifying the (3) Date of report and beginning and (c) As specified in § 63.9(b)(3), if you information in § 63.10(d)(5)(ii) by letter ending dates of the reporting period. start up your new or reconstructed within 7 working days after the end of (4) If there are no deviations from any affected source on or after May 22, 2003. the event unless you have made emission limitations that apply to you, you must submit an Initial Notification alternative arrangements with your a statement that there were no not later than 120 calendar days after permitting authority. deviations from the emission limitations you become subject to this subpart. (b) Unless the Administrator has during the reporting period and that no (d) If you are required to conduct a approved a different schedule for CMS was inoperative, inactive, performance test, you must submit a submission of reports under § 63.10(a), malfunctioning, out-of-control, repaired, notification of intent to conduct a you must submit each report by the date or adjusted. performance test at least 60 calendar according to paragraphs (b)(1) through days before the performance test is (5) of this section. (5) If you had a startup, shutdown, or scheduled to begin as required in (1) The first periodic compliance malfunction during the reporting period § 63.7(b)(1). report must cover the period beginning and you took actions consistent with (e) If you are required to conduct a on the compliance date that is specified your SSMP, your periodic compliance performance test or other initial for your affected source in § 63.7183 and report must include the information in compliance demonstration, you must ending on June 30 or December 31, § 63.10(d)(5) for each startup, shutdown, submit a Notification of Compliance whichever date is the first date and malfunction. Status according to § 63.9(h)(2)(ii) and following the end of the first 12 (d) For each deviation from an according to paragraphs (e)(1) and (2) of calendar months after the compliance emission limitation that occurs at an this section. date that is specified for your source in affected source where you are not using (1) For each initial compliance § 63.7183. a CMS to comply with the emission demonstration that does not include a (2) The first periodic compliance limitations, the periodic compliance performance test, you must submit the report must be postmarked or delivered report must contain the information in
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paragraphs (d)(1) through (2) of this (2) All required measurements needed Administrator and are not transferred to section. to demonstrate compliance with a the State, local, or tribal agency. (1) The total operating time of each relevant standard (e.g., 30-minute (c) The authorities that will not be affected source during the reporting averages of CMS data, raw performance delegated to State, local, or tribal period. testing measurements, raw performance agencies are as listed in paragraphs (2) Information on the number, evaluation measurements). (c)(1) through (4) of this section. duration, and cause of deviations (3) All required CMS measurements (1) Approval of alternatives to the (including unknown cause), if (including monitoring data recorded non-opacity emission limitations in applicable. during unavoidable CMS breakdowns § 63.7184 under § 63.6(g). (e) For each deviation from an and out-of-control periods). (2) Approval of major alternatives to emission limitation occurring at an (4) Records of the date and time that test methods under § 63.7(e)(2)(ii) and affected source where you are using a each deviation started and stopped, and (f) and as defined in § 63.90. CMS to demonstrate compliance with whether the deviation occurred during a (3) Approval of major alternatives to the emission limitation, you must period of startup, shutdown, or monitoring under § 63.8(f) and as include the information in paragraphs malfunction or during another period. defined in § 63.90. (e)(1) through (8) of this section. (4) Approval of major alternatives to (5) Records for process vents (1) The date and time that each recordkeeping and reporting under according to the requirements specified malfunction started and stopped, and § 63.10(f) and as defined in § 63.90. the reason it was inoperative. in § 63.982(a)(2) and storage tank vents (2) The date and time that each CMS according to the requirements specified § 63.7195 What definitions apply to this was inoperative, except for calibration in § 63.982(a)(1). subpart? checks. § 63.7192 In what form and how long must Terms used in this subpart are (3) The date and time that each CMS I keep my records? defined in the Clean Air Act, in §§ 63.2 was out-of-control, including the and 63.981, the General Provisions of information in § 63.8(c)(8). (a) Your records must be in a form this part (40 CFR part 63, subpart A), (4) The date and time that each suitable and readily available for and in this section as follows: deviation started and stopped, and expeditious review, according to Control device means a combustion whether each deviation occurred during § 63.10(b)(1). device, recovery device, recapture a period of startup, shutdown, or (b) As specified in § 63.10(b)(1), you device, or any combination of these malfunction or during another period, must keep each record for 5 years devices used for the primary purpose of and the cause of the deviation. following the date of each occurrence, reducing emissions to comply with this (5) A summary of the total duration of measurement, maintenance, corrective subpart. Devices that are inherent to a the deviation during the reporting action, report, or record. process or are integral to the operation period, and the total duration as a (c) You must keep each record on site of a process are not considered control percent of the total source operating for at least 2 years after the date of each devices for the purposes of this subpart, time during that reporting period. occurrence, measurement, maintenance, even though these devices may have the (6) A summary of the total duration of corrective action, report, or record, secondary effect of reducing emissions. CMS downtime during the reporting according to § 63.10(b)(1). You can keep Process vent means the point at which period, and the total duration of CMS the records offsite for the remaining 3 HAP emissions are released to the downtime as a percent of the total years. atmosphere from a semiconductor source operating time during the Other Requirements and Information manufacturing process unit or storage reporting period. tank by means of a stack, chimney, vent, (7) An identification of each HAP that § 63.7193 What parts of the General or other functionally equivalent was monitored at the affected source. Provisions apply to me? opening. The HAP emission points (8) The date of the latest CMS Table 2 to this subpart shows which originating from wastewater treatment certification or audit. parts of the General Provisions in equipment, other than storage tanks, are § 63.7191 What records must I keep? §§ 63.1 through 63.13 apply to you. not considered to be a process vent, (a) You must keep the records listed unless the wastewater treatment § 63.7194 Who implements and enforces equipment emission points are in paragraphs (a)(1) through (3) of this this subpart? section. connected to a common vent or exhaust (1) A copy of each notification and (a) This subpart can be implemented plenum with other process vents. report that you submitted to comply and enforced by us, the U.S. Semiconductor manufacturing means with this subpart, including all Environmental Protection Agency the collection of semiconductor documentation supporting any (EPA), or a delegated authority such as manufacturing process units used to Notification of Compliance Status and your State, local, or tribal agency. If the manufacture p-type and n-type periodic report of compliance that you U.S. EPA Administrator has delegated semiconductors or active solid state submitted, according to the authority to your State, local, or tribal devices from a wafer substrate, requirements in § 63.10(b)(2)(xiv). agency, then that agency has the including processing from crystal (2) The records in § 63.6(e)(3)(iii) authority to implement and enforce this growth through wafer fabrication, and through (v) related to startup, shutdown, subpart. You should contact your U.S. testing and assembly. Examples of and malfunctions. EPA Regional Office to find out if this semiconductor or related solid state (3) Records of performance tests and subpart is delegated to your State, local, devices include semiconductor diodes, performance evaluations as required in or tribal agency. semiconductor stacks, rectifiers, § 63.10(b)(2)(viii). (b) In delegating implementation and integrated circuits, and transistors. (b) For each CMS, you must keep the enforcement authority of this subpart to Semiconductor manufacturing records listed in paragraphs (b)(1) a State, local, or tribal agency under 40 process unit means the collection of through (5) of this section. CFR part 63, subpart E, the authorities equipment used to carry out a discrete (1) Records described in contained in paragraph (c) of this operation in the semiconductor § 63.10(b)(2)(vi) through (xi). section are retained by the U.S. EPA manufacturing process. These
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operations include, but are not limited semiconductor manufacturing facility (1) Tanks permanently attached to to, crystal growing; solvent stations used are considered to be semiconductor motor vehicles such as trucks, railcars, to prepare and clean materials for manufacturing process units. barges, or ships; subsequent processing or for parts Storage tank means a stationary unit (2) Flow-through tanks where cleaning; wet chemical stations used for that is constructed primarily from wastewater undergoes treatment (such cleaning (other than solvent cleaning); nonearthen materials (such as wood, as pH adjustment) before discharge, and photoresist application, developing, and concrete, steel, fiberglass, or plastic) are not used to accumulate wastewater; stripping; etching; gaseous operation which provides structural support and (3) Bottoms receiver tanks; and stations used for stripping, cleaning, is designed to hold an accumulation of (4) Surge control tanks. doping, etching, and layering; liquids or other materials used in or separation; encapsulation; and testing. generated by a semiconductor Tables to Subpart BBBBB of Part 63 Research and development operations manufacturing process unit. The As stated in § 63.7187, you must associated with semiconductor following are not storage tanks for the comply with the requirements for manufacturing and conducted at a purposes of this subpart: performance tests in the following table:
TABLE 1 TO SUBPART BBBBB OF PART 63.—REQUIREMENTS FOR PERFORMANCE TESTS
For . . . You must . . . Using . . . According to the following requirements . . .
1. Process or storage tank a. Select sampling port’s Method 1 or 1A of 40 CFR Sampling sites must be located at the inlet (if emission vent streams. location and the number part 60, appendix A. reduction or destruction efficiency testing is re- of traverse ports. quired) and outlet of the control device and prior to any releases to the atmosphere. b. Determine velocity and Method 2, 2A, 2C, 2D, 2F, For HAP reduction efficiency testing only; not nec- volumetric flow rate. or 2G of 40 CFR part essary for determining compliance with a ppmv con- 60, appendix A. centration limit. c. Conduct gas molecular i. Method 3, 3A, or 3B of For flow rate determination only. weight analysis. 40 CFR part 60, appen- dix A. ii. ASME PTC 19.10– You may use ASME PTC 19.10–1981–Part 10 (avail- 1981–Part 10. able for purchase from Three Park Avenue, New York, NY 10016–5990) as an alternative to EPA Method 3B. d. Measure moisture con- Method 4 of 40 CFR part For flow rate determination and correction to dry tent of the stack gas. 60, appendix A. basis, if necessary. 2. Process vent stream ...... a. Measure organic and in- i. Method 18, 25, or 25A of (1) To determine compliance with the percent by organic HAP concentra- 40 CFR part 60, appen- weight emission reduction limit, conduct simulta- tion (two method option). dix A, AND neous sampling at inlet and outlet of control device ii. Method 26 or 26A of 40 and analyze for same organic and inorganic HAP at CFR part 60, appendix A. both inlet and outlet; and (2) If you use Method 25A to determine the TOC con- centration for compliance with the 20 ppmv emis- sion limitation, the instrument must be calibrated on methane or the predominant HAP. If you calibrate on the predominant HAP, you must comply with each of the following: —The organic HAP used as the calibration gas must be the single organic HAP representing the largest percent of emissions by volume. —The results are acceptable if the response from the high level calibration gas is at least 20 times the standard deviation of the response from the zero calibration gas when the instrument is zeroed on its most sensitive scale. —The span value of the analyzer must be less than 100 ppmv. To determine compliance with 98 percent reduction limit, conduct simultaneous sampling at inlet and outlet of control device and analyze for same or- ganic and inorganic HAP at both inlet and outlet. c. Measure organic and in- Method 320 of 40 CFR To determine compliance with the percent by weight organic HAP simulta- part 63, appendix A. emission reduction limit, conduct simultaneous sam- neously (one method op- pling at inlet and outlet of control device and ana- tion). lyze for same organic and inorganic HAP at both inlet and outlet. 3. Storage tank vent stream Measure inorganic HAP Method 26 or 26A of 40 To determine compliance with percent by weight emis- concentration. CFR part 60, appendix sion reduction limit, conduct simultaneous sampling A, or Method 320 of 40 at inlet and outlet of control device and analyze for CFR part 63, appendix A. same inorganic HAP at both inlet and outlet.
As stated in § 63.7193, you must comply with the applicable General Provisions requirements according to the following table:
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TABLE 2 TO SUBPART BBBBB OF PART 63.—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART BBBBB
Citation Subject Applicable to Subpart BBBBB?
§ 63.1 ...... Applicability ...... Yes. § 63.2 ...... Definitions ...... Yes. § 63.3 ...... Units and Abbreviations ...... Yes. § 63.4 ...... Prohibited Activities and Circumvention ...... Yes. § 63.5 ...... Construction and Reconstruction ...... Yes. § 63.6 ...... Compliance with Standards and Maintenance ...... Yes. § 63.7 ...... Performance Testing Requirements ...... Yes, with the exception of § 63.7(e)(1). The requirements of § 63.7(e)(1) do not apply. Performance testing require- ments that apply are specified in this subpart, and in § 63.982(a)(1) and (2). § 63.8 ...... Monitoring Requirements ...... Monitoring requirements are specified in this subpart and in § 63.982(a)(1) and (2). The closed vent system inspection requirements of § 63.983(c), as referenced by § 63.982(a)(1) and (2), do not apply. § 63.9 ...... Notification Requirements ...... Yes. § 63.10 ...... Recordkeeping and Reporting Requirements ...... Yes, with the exception of § 63.10(e). The requirements of § 63.10(e) do not apply. In addition, the recordkeeping and reporting requirements specified in this subpart apply. § 63.11 ...... Flares ...... Yes. § 63.12 ...... Delegation ...... Yes. § 63.13 ...... Addresses ...... Yes. § 63.14 ...... Incorporation by Reference ...... Yes. § 63.15 ...... Availability of Information ...... Yes.
[FR Doc. 03–5519 Filed 5–21–03; 8:45 am] have been completed at the Site and, V. Deletion Action BILLING CODE 6560–50–U therefore, further remedial action pursuant to CERCLA is not appropriate. I. Introduction DATES: This direct final deletion will be EPA Region 8 is publishing this Direct ENVIRONMENTAL PROTECTION effective June 30, 2003, unless EPA Final Notice of the Deletion of the Rose AGENCY receives adverse comments by June 23, Park Sludge Pit Superfund Site from the 2003. If EPA receives significant adverse 40 CFR Part 300 NPL. comment(s), EPA will withdraw the The EPA identifies sites that appear to [FRL–7500–8] Direct Final Notice of Deletion and it present a significant risk to public will not take effect. health or the environment and National Oil and Hazardous Substance ADDRESSES: Comments should be maintains the NPL as the list of those Pollution Contingency Plan; National mailed to: Armando Saenz, Remedial sites. As described in § 300.425(e)(3) of Priorities List Project Manager (RPM), Mail Code: the NCP, sites deleted from the NPL AGENCY: Environmental Protection 8EPR–SR, U.S. EPA Region 8, 999 18th remain eligible for remedial actions if Agency. Street, Suite 300, Denver, Colorado, conditions at a deleted site warrant such action, pursuant to EPA’s authority ACTION: Direct Final Notice of Deletion 80202–2466. of the Rose Park Sludge Pit Superfund Information Repositories: under CERCLA and the NCP. Site From the National Priorities List. Comprehensive information is available Because EPA considers this action to for viewing and copying at the following be noncontroversial, this action is being SUMMARY: The Environmental Protection information repositories for the Site: (1) taken without prior publication of a Agency (EPA) Region 8 is publishing a U.S. EPA Region 8 Superfund Records notice of intent to delete. This action Direct Final Notice of Deletion of the Center, 999 18th Street, Fifth Floor, will be effective June 30, 2003 unless Rose Park Sludge Pit Superfund Site Denver, Colorado 80202–2466, Monday EPA receives adverse comments by June (Site), located in Salt Lake City, Utah, through Friday, 8 a.m.—4:30 p.m.; and, 23, 2003 on this document. If adverse from the National Priorities List (NPL). (2) Utah Department of Environmental comments are received within the 30- The NPL, promulgated pursuant to Quality, Division of Environmental day public comment period on this Section 105 of the Comprehensive Response & Remediation, 168 North document, EPA will publish a timely Environmental Response, 1950 West, Salt Lake City, Utah 84116. withdrawal of this direct final deletion Compensation, and Liability Act FOR FURTHER INFORMATION CONTACT: before the effective date of the deletion (CERCLA) of 1980, as amended, is Armando Saenz, 303–312–6559, and the deletion will not take effect. appendix B to 40 CFR part 300, the Remedial Project Manager (RPM), Mail EPA will, as appropriate, prepare a National Oil and Hazardous Substances Code: 8EPR–SR, U.S. EPA Region 8, 999 response to comments and continue Pollution Contingency Plan (NCP). This 18th Street, Suite 300, Denver, with the deletion process on the basis of direct final deletion is being published Colorado, 80202–2466. this Notice and the comments already by EPA with the concurrence of the SUPPLEMENTARY INFORMATION: received. There will be no additional State of Utah, through the Utah opportunity to comment on this Department of Environmental Quality Table of Contents deletion process. (UDEQ), based on EPA’s determination I. Introduction Section II of this document explains that all appropriate response actions II. NPL Deletion Criteria the criteria for deleting sites from the under CERCLA, other than five-year III. Deletion Procedures NPL. Section III discusses procedures reviews and operation & maintenance, IV. Basis for Site Deletion that EPA is using for this action. Section
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IV discusses the Rose Park Sludge Pit today in the ‘‘Proposed Rules’’ section the remaining waste sludge with a soil Superfund Site and demonstrates how it of the Federal Register, is being cap. meets the deletion criteria. Section V published in a major local newspaper of Salt Lake City rediscovered the waste discusses EPA’s action to delete the Site general circulation at or near the Site disposal site in 1976 during expansion from the NPL unless adverse comments and is being distributed to appropriate of the adjacent city park. Due to state are received during the public comment federal, state and local government and local concerns, EPA and Amoco period. officials and other interested parties; the conducted a number of site newspaper notice announces the 30-day investigations between 1979 and 1981. II. NPL Deletion Criteria public comment period concerning the The sludge pit covered an area of Section 300.425(e) of the NCP Notice of Intent to Delete the Site from approximately 5.5 acres and the waste provides that sites may be deleted from the NPL. material was found as deep as 20 feet the NPL where no further response is (4) The EPA placed copies of below ground surface (bgs). The appropriate. In making a determination documents supporting the deletion in shallow, unconfined aquifer was to delete a site from the NPL, EPA shall the Site information repositories approximately eight to ten feet bgs and consider, in consultation with the State, identified above. flowed towards the northwest. Because whether any of the following criteria (5) If adverse comments are received the Site was considered the State of have been met: within the 30-day public comment Utah’s top priority, it was listed on the i. Responsible parties or other persons period on this notice, EPA will publish NPL on September 8, 1983. have implemented all appropriate a timely notice of withdrawal of this Remedial Actions response actions required; Direct Final Notice of Deletion before its Salt Lake City Corporation, Salt Lake effective date and will prepare a ii. All appropriate Fund-financed City/County Health Department, the response to comments and continue (Hazardous Substance Superfund Utah State Department of Health, EPA, Response Trust Fund) response with the deletion process on the basis of and Amoco Oil Company signed an under CERCLA has been the notice of intent to delete and the Intergovernmental/Corporate implemented, and no further comments already received. Cooperation Agreement (ICCA) on response action by responsible Deletion of a site from the NPL does October 29, 1982. The ICCA required parties is appropriate; or not itself create, alter or revoke any Amoco to conduct remedial activities iii. The remedial investigation has individual’s rights or obligations. on-site, which included constructing a shown that the release poses no Deletion of a site from the NPL does not bentonite slurry wall around the significant threat to public health or in any way alter EPA’s right to take perimeter of the site and capping the the environment and, therefore, the enforcement actions, as appropriate. waste material. The primary objectives taking of remedial measures is not The NPL is designed primarily for of the containment remedy were to appropriate. informational purposes and to assist prevent exposure to the acid waste Even if a site is deleted from the NPL, EPA management. Section 300.425(e)(3) sludge, eliminate potentially unhealthy where hazardous substances, pollutants, of the NCP states that the deletion of a odors and vapors, and prevent off-site or contaminants remain at the deleted site from the NPL does not preclude migration of the sludge through surface site above levels that allow for eligibility for future response actions, water and groundwater. unlimited use and unrestricted should future conditions warrant such Amoco conducted remedial activities exposure, EPA policy requires that a actions. at the Site between 1982 and 1984. First, subsequent review of the site be a two-foot wide and 30-feet deep IV. Basis for Site Deletion conducted at least every five years after bentonite slurry wall was constructed the initiation of the remedial action at The following information provides around the perimeter of the site. This the deleted site to ensure that the action EPA’s rationale for deleting the Site wall was installed ten feet below the remains protective of public health and from the NPL: deepest known contamination. the environment. If new information Construction of the slurry wall was Site Location & History becomes available which indicates a completed on January 17, 1983. need for further action, EPA may initiate The Site is located in Salt Lake City, Following installation of the slurry wall, or order remedial actions. Whenever Utah at approximately 1300 North Boy Amoco constructed a cap over the waste there is a significant release from a site Scout Drive (1200 West). The Site is material. This protective cover included deleted from the NPL, the deleted site bordered by vacant, undeveloped land a sand layer, fabric membrane, may be restored to the NPL without to the north and Rose Park to the east, compacted clay layer, and 18-inches of application of the hazard ranking west, and south. Rose Park is soil. Placement of the cap was system. maintained by Salt Lake City completed on July 22, 1983. The surface III. Deletion Procedures Corporation and includes tennis courts, of the cap was then graded to control baseball and soccer fields, picnic areas, surface water run-on and run-off. The The following procedures apply to parking lots, and restrooms. Residential final seeding of the topsoil was deletion of the Site: neighborhoods are located south of Rose completed in the spring of 1984. Lastly, (1) The EPA, lead agency for the Site, Park. vehicular barriers and warning signs consulted with Utah on the deletion of Utah Oil and Refining Company were placed around the perimeter of the the Site from the NPL prior to disposed of acidic waste sludges in an repository in October 1984. developing this direct final notice of unlined pit on-site from the 1930s until The U.S. Army Corps of Engineers deletion. 1957. This waste material was generated (COE) provided construction oversight (2) Utah concurred with deletion of from the petroleum refinery located east for the EPA. The COE indicated in their the Site from the NPL. of the site. Salt Lake City purchased the progress reports that the slurry wall and (3) Concurrent with the publication of property in 1957 to prevent further cap were constructed according to the this Direct Final Notice of Deletion, a dumping of the waste material. In 1960 design and there were no deficiencies. notice of the availability of the parallel Salt Lake City Corporation removed 40 EPA also determined the remedy; as Notice of Intent to Delete was published to 100 truck-loads of sludge and covered designed and implemented; was
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protective of human health and the will be conducted by September 19, Appendix B—[Amended] environment because all exposure 2007. ■ 2. Table 1 of Appendix B to Part 300 pathways had been addressed. Community Involvement is amended under ‘‘Utah’’ by removing the entry for ‘‘Rose Park Sludge Pit’’. Institutional Controls (ICs) and Public participation activities have Operation & Maintenance (O&M) been satisfied as required in CERCLA [FR Doc. 03–12612 Filed 5–21–03; 8:45 am] ICs and O&M requirements for the section 113(k), 42 U.S.C. 9613(k), and BILLING CODE 6560–50–P Site were also included in the ICCA. CERCLA section 117, 42 U.S.C. 9617. The ICs prevent excavation activities or Documents in the deletion docket, the installation of any underground which EPA relied on for ENVIRONMENTAL PROTECTION utilities on the Site. BP/Amoco recorded recommendation of the deletion from AGENCY the NPL, are available to the public in the ICCA in the chain-of-title for the Site 40 CFR Part 300 at the Salt Lake County Recorders Office the information repositories. in 1985. The recording provides a V. Deletion Action [FRL–7500–6] public record of the ICs and background information in the event of a transfer of The EPA, with concurrence from the National Oil and Hazardous Substance ownership. State of Utah through UDEQ, has Pollution Contingency Plan; National determined that all appropriate Priorities List O&M activities at the Site included responses under CERCLA have been groundwater monitoring and sampling, AGENCY: completed, and that no further response Environmental Protection site inspections, and well integrity actions, under CERCLA, other than five- Agency. testing. Salt Lake City Corporation year reviews and operation & ACTION: Direct final notice of deletion of conducted O&M activities from 1984 maintenance, are necessary. Therefore, the Petrochem Recycling Corp./Ekotek, through 1992. Because the EPA, State of EPA is taking this action to delete the Inc., Superfund Site from the National Utah, and BP/Amoco identified several Site from the NPL. Priorities List. deficiencies regarding O&M activities Because EPA considers this action to during this time period, BP/Amoco took SUMMARY: The Environmental Protection be noncontroversial, this action is being over the responsibility of O&M from the Agency (EPA) Region 8 is publishing a taken without prior publication of a Salt Lake City Corporation in 1992. Direct final Notice of Deletion of the notice of intent to delete. This action Since taking over this duty in 1992, BP/ Petrochem Recycling Corp./Ekotek, Inc., will be effective June 30, 2003, unless Amoco has documented the O&M Superfund Site (Site), located in Salt EPA receives adverse comments by June activities from each year in an annual Lake City, Utah, from the National 23, 2003. If adverse comments are report. Priorities List (NPL). received within the 30-day public The NPL, promulgated pursuant to Five-Year Reviews comment period on this document, EPA Section 105 of the Comprehensive will publish a timely withdrawal of this Three Five-Year Reviews have been Environmental Response, direct final deletion before the effective conducted at the Site. The reviews were Compensation, and Liability Act date of the deletion and the deletion completed on June 1, 1992, August 5, (CERCLA) of 1980, as amended, is will not take effect. EPA will, as 1997 and September 19, 2002, Appendix B to 40 CFR Part 300, the appropriate, prepare a response to respectively. These reviews indicated National Oil and Hazardous Substances comments and continue with the that the remedy was protective of Pollution Contingency Plan (NCP). This deletion process on the basis of the human health and the environment. direct final deletion is being published notice of intent to delete and the by EPA with the concurrence of the The last review, conducted by UDEQ, comments already received. There will found that the cap is in good condition State of Utah, through the Utah be no additional opportunity to Department of Environmental Quality thus preventing exposure to the waste comment on this deletion process. material in the repository. A chain-link (UDEQ), based on EPA’s determination fence and guardrail around the List of Subjects in 40 CFR Part 300 that all appropriate response actions under CERCLA have been completed at perimeter of the repository prevent Environmental protection, Air the Site and, therefore, further remedial public access to the Site and caution pollution control, Chemicals, Hazardous action pursuant to CERCLA is not signs on each side of the repository waste, Hazardous substances, appropriate. warn park visitors of the Site. Ground- Intergovernmental relations, Penalties, water monitoring data indicate the Reporting and recordkeeping DATES: This direct final deletion will be waste material remains contained requirements, Superfund, Water effective June 30, 2003, unless EPA within the repository. ICs for the Site pollution, Water supply. receives adverse comments by June 23, prevent excavation activities or the 2003. If EPA receives significant adverse Dated: May 2, 2003. installation of underground utilities on comment(s), EPA will withdraw the Robert E. Roberts, the Site. Three issues that did not Direct Final Notice of Deletion and it immediately impact protectiveness were Regional Administrator, Region 8. will not take effect. EPA will, as identified and have subsequently been ■ For the reasons set out in this appropriate, address all public addressed by BP/Amoco. document, 40 CFR Part 300 is amended comments in a subsequent final deletion Policy reviews are required at the Site as follows: notice based on this Notice. every five years because remedial ADDRESSES: PART 300—[AMENDED] Comments should be activities were completed prior to the mailed to: Armando Saenz, Remedial passage of the Superfund Amendments ■ 1. The authority citation for Part 300 Project Manager (RPM), Mail Code: and Reauthorization Act (SARA) of 1986 continues to read as follows: 8EPR–SR, U.S. EPA Region 8, 999 18th and waste material was left on-site, Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. Street, Suite 300, Denver, Colorado, which prevents unrestricted exposure 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 80202–2466. and unlimited use of the Site. Therefore, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, Information Repository: the next Five-Year Review for this Site 3 CFR, 1987 Comp., p.193. Comprehensive information is available
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for viewing and copying at the II. NPL Deletion Criteria Notice of Intent to Delete the Site from information repository for the Site Section 300.425(e) of the NCP the NPL. (4) The EPA placed copies of located at: U.S. EPA Region 8 Superfund provides that sites may be deleted from documents supporting the deletion in Records Center, 999 18th Street, Fifth the NPL where no further response is the Site information repository Floor, Denver, Colorado 80202–2466, appropriate. In making a determination identified above. Monday through Friday, 8:00 a.m.–4:30 to delete a site from the NPL, EPA shall p.m. (5) If adverse comments are received consider, in consultation with the State, within the 30-day public comment FOR FURTHER INFORMATION CONTACT: whether any of the following criteria Armando Saenz, 303–312–6559, period on this notice, EPA will publish have been met: a timely notice of withdrawal of this Remedial Project Manager (RPM), Mail i. Responsible parties or other persons Code: 8EPR–SR, U.S. EPA Region 8, 999 Direct Final Notice of Deletion before its have implemented all appropriate effective date and will prepare a 18th Street, Suite 300, Denver, Colorado response actions required; 80202–2466. response to comments and continue ii. All appropriate Fund-financed with the deletion process on the basis of SUPPLEMENTARY INFORMATION: (Hazardous Substance Superfund the notice of intent to delete and the Table of Contents Response Trust Fund) response under comments already received. CERCLA has been implemented, and no Deletion of a site from the NPL does I. Introduction further response action by responsible II. NPL Deletion Criteria not itself create, alter or revoke any III. Deletion Procedures parties is appropriate; or individual’s rights or obligations. IV. Basis for Site Deletion iii. The remedial investigation has Deletion of a site from the NPL does not V. Deletion Action shown that the release poses no in any way alter EPA’s right to take significant threat to public health or the I. Introduction enforcement actions, as appropriate. environment and, therefore, the taking The NPL is designed primarily for EPA Region 8 is publishing this Direct of remedial measures is not appropriate. informational purposes and to assist Final Notice of Deletion of the Even if a site is deleted from the NPL, EPA management. Section 300.425(e)(3) Petrochem Recycling Corp./Ekotek, Inc., where hazardous substances, pollutants, of the NCP states that the deletion of a Superfund Site from the NPL. or contaminants remain at the deleted site from the NPL does not preclude The EPA identifies sites that appear to site above levels that allow for eligibility for future response actions, present a significant risk to public unlimited use and unrestricted should future conditions warrant such health or the environment and exposure, CERCLA section 121(c), 42 actions. maintains the NPL as the list of those U.S.C. 9621(c), requires that a sites. As described in 40 CFR subsequent review of the site be IV. Basis for Site Deletion 300.425(e)(3) of the NCP, sites deleted conducted at least every five years after The following information provides from the NPL remain eligible for the initiation of the remedial action at EPA’s rationale for deleting the Site remedial actions if conditions at a the deleted site to ensure that the action from the NPL: deleted site warrant such action, remains protective of public health and pursuant to EPA’s authority under the environment. If new information Site Location & History CERCLA and the NCP. becomes available which indicates a The Site is located in Township 1 Because EPA considers this action to need for further action, EPA may initiate North, Range 1 West, Section 23, and be noncontroversial, this action is being or order remedial actions. Whenever occupies approximately seven acres in taken without prior publication of a there is a significant release from a site an industrial corridor in the northern notice of intent to delete. This action deleted from the NPL, the deleted site section of Salt Lake City, Utah. The Site will be effective June 30, 2003 unless may be restored to the NPL without was originally owned and operated as EPA receives adverse comments by June application of the hazard ranking an oil refinery by O. C. Allen Oil 23, 2003 on this document. If adverse system. Company, from 1953 to 1968. In 1968, comments are received within the 30- Flinco, Inc., purchased the facility and day public comment period on this III. Deletion Procedures operated the refinery until 1978. During document, EPA will publish a timely The following procedures apply to that time Flinco changed its name to withdrawal of this direct final deletion deletion of the Site: Bonus International Corp. In 1978, Axel before the effective date of the deletion (1) The EPA, lead agency for the Site, Johnson, Inc., acquired the facility and and the deletion will not take effect. consulted with Utah on the deletion of operated it through its Delaware-based EPA will, as appropriate, prepare a the Site from the NPL prior to subsidiary, Ekotek, Inc. At that time, response to comments and continue developing this direct final notice of Ekotek, Inc., converted the Site into a with the deletion process on the basis of deletion. hazardous waste storage and treatment this Notice and the comments already (2) Utah concurred with deletion of and petroleum recycling facility. In received. There will be no additional the Site from the NPL. 1981, the Site was reincorporated as opportunity to comment on this (3) Concurrent with the publication of Ekotek Incorporated, a Utah deletion process. this Direct Final Notice of Deletion, a corporation. Section II of this document explains notice of the availability of the parallel From 1980 to 1987, the facility the criteria for deleting sites from the Notice of Intent to Delete was published operated under Resource Conservation NPL. Section III discusses procedures today in the ‘‘Proposed Rules’’ section and Recovery Act (RCRA) Interim that EPA is using for this action. Section of the Federal Register, is being Status, and received a hazardous waste IV discusses the Petrochem Recycling published in a major local newspaper of storage permit, issued by UDEQ, in July Corp./Ekotek, Inc., Superfund Site and general circulation at or near the Site 1987 for a limited number of activities. demonstrates how it meets the deletion and is being distributed to appropriate Ekotek, Inc., declared bankruptcy in criteria. Section V discusses EPA’s federal, state and local government November of 1987. Petrochem Recycling action to delete the Site from the NPL officials and other interested parties; the Corp. leased the facility in 1987 from unless adverse comments are received newspaper notice announces the 30-day Ekotek, Inc., and continued operations during the public comment period. public comment period concerning the until February 1988.
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Site operations were shut down in completed in January 1995 and was issued on December 22, 1997 February 1988 after the issuance to included development and evaluation of (Docket No. CERCLA (106) VIII–98–05) Petrochem Recycling Corp. of a Notice ten site-wide remedial alternatives. The for the performance of Drum and Sludge of Violation by the Utah Bureau of Solid alternatives consisted of various Removal. Members of the ESRC were and Hazardous Waste and the Bureau of combinations of technologies for soil Respondents for the Administrative Air Quality. In November 1988, Region and groundwater remediation, including Order on Consent for Removal Action. 8 EPA Emergency Response Branch soil excavation and disposal or The actions under this AOC were initiated an emergency surface removal treatment, containment, LNAPL completed prior to the Remedial Design action at the Site. removal, groundwater extraction and and Remedial Action (RD/RA) Consent On August 2, 1989, an Administrative disposal, and intrinsic groundwater Decree in order to expedite and Order on Consent (AOC) for Emergency remediation. facilitate the remedial action. The Surface Removal (Docket CERCLA–VIII– actions completed under the Drum and Record of Decision (ROD) and 89–25) was issued to 27 Potentially Sludge Removal included the following: Explanations of Significant Differences Responsible Parties (PRPs) to undertake the characterization of drummed waste (ESDs) actions to clean up the Site. These PRPs and filter cake sludge, the disposal of operated as members of a voluntary EPA’s remedy decision was embodied approximately 230 drums and the association termed the ESRC (Ekotek in a final ROD signed on September 27, associated waste at a permitted RCRA Site Remediation Committee.) As part of 1996. The components of the selected facility and the disposal of the emergency surface removal action, remedy included: approximately 450 cubic yards of filter the ESRC removed surface and • Removal/Disposal of Hot Spot Soils cake sludge at a permitted RCRA underground storage tanks, containers, • Consolidation/Capping of Soils that facility. A final Drum and Sludge contaminated sludges, pooled liquids Exceed Soil Performance Standards Removal Completion Report was issued • and processing equipment from the Site. Partial Removal/Disposal of Soil in December 1998. In November 1989, EPA began site and Buried Debris and Cap Remaining Remedial Actions. EPA and the ESRC assessment field operations. The Site Debris representatives negotiated an agreement • was proposed for listing on the National Removal/Treatment of 100% of the to implement the remedy selected in the Priorities List (NPL) on July 29, 1991. LNAPL ROD. This agreement, in the form of a • The Site was listed on the NPL on Natural Attenuation/Intrinsic consent decree for remedial design and October 14, 1992. Only one operable Remediation of Ground Water remedial action (RD/RA Consent • unit was designated for the Site. Access and Land Use Restrictions Decree), was lodged on March 4, 1998, Remedial Investigation and Feasability for the Site and entered on April 27, 1998, in the An ESD was issued on December 9, Study (RI/FS) U.S. District Court for Utah. 1997, by EPA to modify certain Remedial actions were conducted in An Administrative Order on Consent remediation criteria established in the four stages: (AOC) for the performance of the 1996 Record of Decision. The significant • Stage 1: Building Demolition Remedial Investigation/Feasibility differences addressed in the ESD were: • Stage 2: Site Demolition, Hot Spot Study (RI/FS) was signed in July 1992 corrected and revised soil performance and Removal of Buried Debris (Docket No. CERCLA (106) VIII–92–21). standard values for 2,3,7,8,-TCDD(TEF) • Stage 3: Soil Excavation and Members of the ESRC were Respondents and PCBs; revised soil hot spot Disposal and LNAPL Excavation and for the RI/FS AOC. The Phase I field performance standard value for PCBs; Incineration investigation was undertaken from and an alternative to permit discharge of • Stage 4: Groundwater Studies December 1992 to March 1993 and water to re-injection wells or to a All remedial actions were conducted Phase II investigations were conducted surface water/storm drain via the in accordance with the ROD, ESDs, from August to October 1993. A final RI substantive requirements of a UPDES Remedial Design (May 1999) and report was issued in July 1994 and the permit. Consent Decree. Groundwater studies final FS report was issued in January A second ESD was issued on May 11, supported the choice of monitored 1995. Two addenda to the FS were 1999, by EPA. The second ESD modified natural attenuation/intrinsic submitted on February 24, 1995 and two aspects of the 1996 Record of remediation for the groundwater April 7, 1995. EPA published the notice Decision; first it deleted manganese as a component of the remedy. Confirmatory of completion for the FS and the designated contaminant of concern in sampling verified that the Site achieved Proposed Plan for remedial action on the ground water, and second it the ROD cleanup objectives for soil and July 19, 1995. increased the volume of contaminated groundwater and that all cleanup The results of the remedial soil destined for off-site disposal. actions specified in the ROD and ESDs investigation indicated that surface soils Changes to the original remedy due to had been implemented. on the property contained petroleum the two ESDs resulted in the following Operation & Maintenance (O&M) hydrocarbon contaminants, including remedy: semivolatile organic compounds • Removal/Disposal of soils Disposal of hazardous materials, (SVOCs) and polychlorinated biphenyls exceeding hot spot and soil performance identified in the ROD and ESDs, to a (PCBs). Contaminated soil extended to standards permitted off-site disposal facility and the water table in the vicinity of the • Removal/Incineration of floating the achievement of the groundwater former tank farm/processing area where LNAPL down to 0.02 feet thickness remediation levels has eliminated the a plume of light non-aqueous phase • Natural Attenuation/Intrinsic need for O&M at the Site. liquids (LNAPL) was present. Remediation of groundwater Five-Year Review Groundwater analytical results collected • Backfilling excavations with clean during the RI indicated that vinyl soil and regrading/restoration of Site Pursuant to CERCLA section 121(c), chloride, cis-1,2-DCE, benzene, and 42 U.S.C. 9621(c), five-year reviews are arsenic were present at concentrations Response Actions required at sites with remaining above their maximum contaminant Removal Action. An Administrative hazardous substances, pollutants, or levels (MCLs). The feasibility study was Order on Consent for Removal Action contaminants above levels that allow for
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unlimited use and unrestricted Dated: May 2, 2003. 1. In § 301–53.2 a new note is added. exposure. Hazardous substances above Robert E. Roberts, 2. Section 301–53.3 is revised. health-based levels were removed from Regional Administrator, Region 8. 3. Section 301–74.1 is revised by redesignating paragraph (d) as the Site, eliminating the five-year ■ For the reasons set out in this review requirement. paragraph (e) and adding a new document, 40 CFR Part 300 is amended paragraph (d). Community Involvement as follows: B. Executive Order 12866 PART 300—[AMENDED] The impacted community, near the This is not a significant regulatory Site, has been represented by the Capital ■ 1. The authority citation for Part 300 action and, therefore, was not subject to Hill Neighborhood Council (Council). continues to read as follows: review under section 6(b) of Executive The Council was funded by a Technical Order 12866, Regulatory Planning and Assistance Grant from EPA. Mr. Paul Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. Review, dated September 30, 1993. This 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, Anderson acted as the Council’s advisor 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, rule is not a major rule under 5 U.S.C. and actively participated as a 3 CFR, 1987 Comp., p. 193. 804. stakeholder during the planning and C. Regulatory Flexibility Act cleanup of the Site. Community relation Appendix B—[Amended] This final rule is not required to be activities included public meetings, site ■ 2. Table 1 of Appendix B to Part 300 tours and fact sheets. published in the Federal Register for is amended under ‘‘Utah’’ by removing notice and comment; therefore, the Public participation activities have the entry for ‘‘Petrochem Recycling Regulatory Flexibility Act, 5 U.S.C. 601, been satisfied as required in CERCLA Corp./Ekotek, Plant’’. et seq., does not apply. section 113(k), 42 U.S.C. 9613(k), and [FR Doc. 03–12614 Filed 5–21–03; 8:45 am] CERCLA section 117, 42 U.S.C. 9617. D. Paperwork Reduction Act BILLING CODE 6560–50–P Documents in the deletion docket, The Paperwork Reduction Act does which EPA relied on for not apply because the changes to the recommendation of the deletion from FTR do not impose recordkeeping or GENERAL SERVICES the NPL, are available to the public in information collection requirements, or ADMINISTRATION the information repository. the collection of information from offerors, contractors, or members of the V. Deletion Action 41 CFR Parts 301–53 and 301–74 public that require the approval of the The EPA, with concurrence from the [FTR Case 2003–304; FTR Amendment Office of Management and Budget under 2003–04] State of Utah through UDEQ, has 44 U.S.C. 3501, et seq. determined that all appropriate RIN 3090–AH81 E. Small Business Regulatory responses under CERCLA have been Enforcement Fairness Act completed, and that no further response Federal Travel Regulation; Using This final rule is also exempt from actions, under CERCLA are necessary. Promotional Materials; Conference congressional review prescribed under 5 Therefore, EPA is taking this action to Planning U.S.C. 801 since it relates solely to delete the Site from the NPL. AGENCY: Office of Governmentwide agency management and personnel. Because EPA considers this action to Policy, General Services Administration List of Subjects in 41 CFR Parts 301–53 be noncontroversial, this action is being (GSA). and 301–74 taken without prior publication of a ACTION: Final rule. notice of intent to delete. This action Government employees, Travel and will be effective June 30, 2003, unless SUMMARY: This final rule amends the transportation expenses. EPA receives adverse comments by June Federal Travel Regulation (FTR) by Dated: May 12, 2003. 23, 2003. If adverse comments are clarifying provisions regarding Stephen A. Perry, received within the 30-day public promotional benefits or materials that a Administrator of General Services. comment period on this document, EPA conference planner receives from a will publish a timely withdrawal of this travel service provider. The explanation ■ For the reasons set forth in the direct final deletion before the effective of changes is addressed in the preamble, under 5 U.S.C. 5701–5709, date of the deletion and the deletion supplementary information below. GSA amends 41 CFR parts 301–53 and 301–74 as set forth below: will not take effect. EPA will, as DATES: Effective Date: May 22, 2003. appropriate, prepare a response to FOR FURTHER INFORMATION CONTACT: The PART 301–53—USING PROMOTIONAL comments and continue with the Regulatory Secretariat, Room 4035, GS MATERIALS AND FREQUENT deletion process on the basis of the Building, Washington, DC 20405, (202) TRAVELER PROGRAMS notice of intent to delete and the 208–7312, for information pertaining to ■ comments already received. There will status or publication schedules. For 1. The authority citation for 41 CFR be no additional opportunity to clarification of content, contact Mr. Jim part 301–53 continues to read as follows: comment on this deletion process. Harte, Office of Governmentwide Policy, Authority: 5 U.S.C. 5707, 31 U.S.C. 1353. List of Subjects in 40 CFR Part 300 Travel Management Policy, at (202) ■ 2. Amend § 301–53.2 by adding a note 501–0438. Please cite FTR case 2003– to read as follows: Environmental protection, Air 304, FTR Amendment 2003–04. pollution control, Chemicals, Hazardous SUPPLEMENTARY INFORMATION: § 301–53.2 What may I do with promotional waste, Hazardous substances, benefits or materials I receive from a travel Intergovernmental relations, Penalties, A. Background service provider? Reporting and recordkeeping The changes in this final rule clarify * * * * * requirements, Superfund, Water existing sections of chapter 301 as Note to § 301–53.2: Promotional benefits or pollution, Water supply. follows: materials you receive from a travel service
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provider in connection with your planning DEPARTMENT OF HEALTH AND Lane, Rockville, MD 20857, 301–443– and/or scheduling an official conference or HUMAN SERVICES 0457, email: [email protected]. other group travel (as opposed to performing SUPPLEMENTARY INFORMATION: official travel yourself) are considered Substance Abuse and Mental Health property of the Government, and you may Services Administration Background only accept the benefits or materials on In a rule document published in the behalf of the Federal Government (see § 301– 42 CFR Part 8 Federal Register of January 17, 2001 (66 74.1(d) of this chapter). RIN 0910–AA52 FR 4076, January 17, 2001), the Substance Abuse and Mental Health ■ 3. Revise § 301–53.3 to read as follows: Opioid Drugs in Maintenance and Services Administration (SAMHSA) issued final regulations for the use of § 301–53.3 How may I use promotional Detoxification Treatment of Opiate materials and frequent traveler benefits? Addiction; Addition of Buprenorphine narcotic drugs in maintenance and and Buprenorphine Combination to detoxification treatment of opioid Promotional materials and frequent List of Approved Opioid Treatment addiction. That final rule established an traveler benefits may be used as follows: Medications accreditation-based regulatory system (a) You may use frequent traveler under 42 CFR part 8 (‘‘Certification of AGENCY: Substance Abuse and Mental benefits earned on official travel to Opioid Treatment Programs,’’ ‘‘OTPs’’). Health Services Administration The regulations also established (under obtain travel services for a subsequent (SAMHSA), Department of Health and § 8.12) the Secretary’s standards for the official travel assignment(s); however, Human Services. use of opioid medications in the you may also retain such benefits for ACTION: Interim final rule. treatment of addiction, including your personal use, including upgrading standards regarding the quantities of to a higher class of service while on SUMMARY: This interim final rule opioid drugs which may be provided for official travel. amends the Federal opioid treatment unsupervised use. (b) If you are offered such benefits as program regulations by adding Section 8.12(h) sets forth the a result of your role as a conference buprenorphine and buprenorphine standards for medication planner or as a planner for other group combination products to the list of administration, dispensing and use. travel, you may not retain such benefits approved opioid treatment medications Under this section, OTPs shall use only for your personal use (see § 301–53.2 of that may be used in federally certified those opioid agonist treatment this chapter). Rather, you may only and registered opioid treatment medications that are approved by the accept such benefits on behalf of the programs. The Food and Drug Food and Drug Administration under section 505 of the Federal Food, Drug, Federal Government. Such accepted Administration (FDA) recently approved Subutex (buprenorphine) and Cosmetic Act (21 U.S.C. 355) for use benefits may only be used for official and Suboxone (buprenorphine in fixed in the treatment of opioid addiction. Government business. combination with naloxone) for the The regulation listed methadone and PART 301–74—CONFERENCE treatment of opiate dependence. These levomethadyl acetate (ORLAAM ) as the opioid agonist treatment PLANNING two products will join methadone and ORLAAM as medications that may be medications considered to be approved by the FDA for use in the treatment of ■ used in opioid treatment programs for 4. The authority citation for 41 CFR the maintenance and detoxification opioid addiction. part 301–74 continues to read as follows: treatment of opioid dependence. Opioid On October 8, 2002, FDA approved Authority: 5 U.S.C. 5707. treatment programs that choose to use two new opioid treatment medications, these new products in the treatment of buprenorphine and buprenorphine ■ 5. Amend § 301–74.1 by redesignating opioid dependence will adhere to the combination for the treatment of opioid paragraph (d) as paragraph (e) and same Federal treatment standards addiction. These medications are adding a new paragraph (d) to read as established for methadone and controlled under schedule III of the follows: ORLAAM. The Secretary invites Controlled Substances Act (‘‘CSA,’’ 21 public comments on this action. U.S.C. 812). See final rule published § 301–74.1 What policies must we follow in DATES: October 7, 2002 (67 FR 62354). By planning a conference? This interim final rule is effective May 22, 2003. This interim adding these two medications to the * * * * * final rule is also being presented here previous list of approved opioid treatment medications, the Secretary (d) Ensure that the conference planner for public comments. Written comments allows OTPs to use buprenorphine and or designee does not retain for personal must be received by the Substance buprenorphine combination for the use any promotional benefits or Abuse and Mental Health Services treatment of opioid addiction. OTPs will materials received from a travel service Administration (SAMHSA) on or before July 21, 2003. apply the same treatment standards that provider as a result of booking the were finalized on January 17, 2001, for conference (see §§ 301–53.2 and 301– ADDRESSES: Comments should be methadone and ORLAAM. 53.3 of this chapter); and submitted to the Division of Summary of Regulation * * * * * Pharmacologic Therapy, Center for Substance Abuse Treatment, Rockwall [FR Doc. 03–12896 Filed 5–21–03; 8:45 am] The opioid treatment program II, Room 6–18, 5600 Fishers Lane, regulations (42 CFR part 8) establish the BILLING CODE 6820–14–P Rockville, MD, 20857; Attention: DPT procedures by which the Secretary will Federal Register Representative. determine whether a practitioner is FOR FURTHER INFORMATION CONTACT: qualified under section 303(g) of the Nicholas Reuter, Center for Substance CSA (21 U.S.C. 823(g) (1)) to dispense Abuse Treatment (CSAT), Division of certain therapeutic narcotic drugs in the Pharmacologic Therapy, SAMHSA, treatment of individuals suffering from Rockwall II Room 6–18, 5600 Fishers narcotic addiction. These regulations
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also establish the Secretary’s standards course of addiction. Similarly, it would regulatory approaches that maximize regarding the appropriate quantities of be contrary to the public interest to net benefits (including potential narcotic drugs that may be provided for deny patients access to such economic, environmental, public health unsupervised use by individuals prescription drugs from OTPs and safety, and other advantages, undergoing such treatment (21 U.S.C. particularly in areas in which there are distributive impacts, and equity). This 823(g) (3)). (See also 42 U.S.C. 257a.) no physicians who have obtained a interim final rule does not establish This interim final rule does not waiver under the Drug Addiction additional regulatory requirements, it change any of the provisions in subpart Treatment Act of 2000 (‘‘DATA,’’ allows an activity that is otherwise A (Accreditation) or subpart C section 3502 of Pub. L. 106–310). prohibited. According to Executive (Procedures for Review of Suspension or To further elaborate, while OTPs may Order 12866, a regulatory action is Proposed Revocation of OTP continue to use methadone and ‘‘significant’’ if it meets any one of a Certification, and of Adverse Action ORLAAM for medicated assisted number of specified conditions, Regarding Withdrawal of Approval of an treatment, buprenorphine and including having an annual effect on the Accreditation Body). Instead, the rule buprenorphine combinations will economy of $100 million; adversely provides for a minor amendment to provide OTPs with an important affecting in a material way a sector of subpart B, Certification and Treatment additional option for the treatment of the economy, competition, or jobs; or if Standards. The rule amends only one addiction. Indeed, because of its it raises novel legal or policy issues. A section of subpart B, section 8.12(h)(2) ‘‘partial’’ agonist pharmacology, detailed discussion of the Secretary’s Medication administration, dispensing, buprenorphine will provide programs analysis is contained in the recent and use. with more flexibility in finding the most opioid treatment final rule published in Under 42 CFR 8.12(h)(2), OTPs are appropriate medication for each patient. the Federal Register of January 17, 2001 limited to using only those opioid It would thus be contrary to the public (66 FR 4086–4090). That notice agonist treatment medications that are interest to delay the availability of described the impact of the opioid approved by the Food and Drug buprenorphine products. treatment regulations, analyzed Administration under section 505 of the In addition to the public interest in alternatives, and considered comments Federal Food, Drug, and Cosmetic Act having buprenorphine and from small entities. (21 U.S.C. 355). This section notes that buprenorphine combination products The Secretary also finds that this rule ‘‘currently the following medications available for treatment use as soon as is a not a significant regulatory action as will be considered to be approved by possible, prior notice and comment defined by Executive Order 12866. The the Food and Drug Administration for procedures are unnecessary. Currently, rule merely adds buprenorphine and use in the treatment opioid addiction: (i) the rule states: ‘‘OTPs shall use only buprenorphine combination products to Methadone; and (ii) levomethadyl those opioid agonist treatment the list of medications that may be used acetate (LAAM).’’ The effect of this rule medications that are approved by the in the detoxification or maintenance is to add buprenorphine and Food and Drug Administration * * * treatment of opioid dependence. If buprenorphine combination to this list for use in the treatment of opioid opioid treatment programs choose to use by adding a new item (iii). addiction * * *. Currently the the new medications, the new following opioid agonist treatment Justification for Interim Final Rule medications will be used in accordance medications will be considered to be with the standards set forth in the The Administrative Procedure Act (5 approved by the Food and Drug January 17, 2001, final rule (66 FR U.S.C. 553) requires agencies to follow Administation for use in the treatment 4090). No new regulatory requirements certain procedures for informal of opioid addiction: (i) Methadone; and are imposed by this interim final rule. rulemaking, including publication of (ii) Levomethadyl acetate (LAAM).’’ For the reasons outlined above, the proposed rules in the Federal Register Because the buprenorphine products Secretary has determined that this with an opportunity for public have been approved by the FDA as interim final rule will not have a comment. Section 553(b)(B) allows required by section 8.12(h)(2), the significant impact upon a substantial agencies to dispense with prior notice proposed modification is technical in number of small entities within the and opportunity for public comment if nature in that it simply adds meaning of the Regulatory Flexibility the agency finds for good cause that use buprenorphine and buprenorphine Act (5 U.S.C. 605(b)). Therefore an of such procedures is impracticable, combination to the list of FDA-approved initial regulatory flexibility analysis is unnecessary, or contrary to the public medications that may be used by OTPs. not required for this interim final rule. interest. Section 553(d)(3) permits the Thus, comment is not necessary before The Secretary has determined that Secretary to waive the 30 day effective finalizing this change to the regulation. this rule is not a major rule for the date if it is contrary to the public Although we are making the rule purpose of congressional review. For the interest. effective immediately without first purpose of congressional review, a The Secretary has determined that obtaining public comment, we are major rule is one which is likely to good cause exists for publication of this providing for a 60-day comment period cause an annual effect on the economy rule without prior notice and after publication. Specifically, we seek of $100 million; a major increase in opportunity for public comment and comments on the applicability of the costs or prices; significant effects on without a delayed effective date since existing OTP rules to these newly competition, employment, productivity, such procedures are contrary to the approved medications. or innovation; or significant effects on public interest and unnecessary. It is the ability of U.S.-based enterprises to contrary to the public interest to deny Analysis of Economic Impacts compete with foreign-based enterprises OTPs’ access to this important new The Secretary has examined the in domestic or export markets. This is medication for the treatment of persons impact of this interim final rule under not a major rule under the Small addicted to opioids. As compared to Executive Order 12866. Executive Order Business Regulatory Enforcement methadone and ORLAAM , 12866 directs Federal agencies to assess Fairness Act of 1996 (SBREFA). buprenorphine and buprenorphine all costs and benefits of available The Secretary has examined the combination are particularly useful in regulatory alternatives and, when impact of this rule under the Unfunded treating patients who have had a shorter regulation is necessary, to select Mandates Reform Act of 1995 (UMRA)
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(Pub. L. 104–4). This rule does not Paperwork Reduction Act of 1995 § 8.12 Federal opioid treatment standards. trigger the requirement for a written This interim final rule adds * * * * * statement under section 202(a) of the buprenorphine and buprenorphine (h)* * * UMRA because it does not impose a combination products to the list of (2) OTPs shall use only those opioid mandate that results in an expenditure approved medications that may be used agonist treatment medications that are of $100 million (adjusted annually for in SAMHSA-certified opioid treatment approved by the Food and Drug inflation) or more by State, local, and programs. The interim final rule Administration under section 505 of the tribal governments in the aggregate, or establishes no new reporting or Federal Food, Drug, and Cosmetic Act by the private sector, in any one year. recordkeeping requirements beyond (21 U.S.C. 355) for use in the treatment of opioid addiction. In addition, OTPs Environmental Impact those discussed in the January 17, 2001, final rule (66 FR 4076 at 4088). The who are fully compliant with the The Secretary has previously Office of Management and Budget has protocol of an investigational use of a considered the environmental effects of approved the information collection drug and other conditions set forth in this rule as announced in the final rule requirements of the final rule under the application may administer a drug (66 FR 4076 at 4088). No new control number 0930–0206. that has been authorized by the Food and Drug Administration under an information or comments have been Executive Order 13175: Consultation received that would affect the agency’s investigational new drug application and Coordination With Indian Tribal under section 505(i) of the Federal previous determination that there is no Governments significant impact on the human Food, Drug, and Cosmetic Act for environment and that neither an Executive Order 13175 (65 FR 67249, investigational use in the treatment of environmental assessment nor an November 6, 2000) requires us to opioid addiction. Currently the environmental impact statement is develop an accountable process to following opioid agonist treatment required. ensure ‘‘meaningful and timely input by medications will be considered to be tribal officials in the development of approved by the Food and Drug Executive Order 13132: Federalism regulatory policies that have tribal Administration for use in the treatment implications.’’ ‘‘Policies that have tribal of opioid addiction: The Secretary has analyzed this implications’’ defined in the Executive (i) Methadone; interim final rule in accordance with Order to include regulations that have (ii) Levomethadyl acetate (LAAM); Executive Order 13132: Federalism. ‘‘substantial direct effects on one or and Executive Order 13132 requires Federal more Indian tribes, on the relationship (iii) Buprenorphine and agencies to carefully examine actions to between the Federal government and buprenorphine combination products determine if they contain policies that the Indian tribes, or on the distribution that have been approved for use in the have federalism implications or that of power and responsibilities between treatment of opioid addiction. preempt State law. As defined in the the Federal government and Indian * * * * * Order, ‘‘policies that have federalism tribes.’’ implications’’ refer to regulations, This interim final rule does not have [FR Doc. 03–11469 Filed 5–21–03; 8:45 am] legislative comments or proposed tribal implications. It will not have BILLING CODE 4160–20–P legislation, and other policy statements substantial direct effects on tribal or actions that have substantial direct governments, on the relationship effects on the States, on the relationship between the Federal government and FEDERAL COMMUNICATIONS between the national government and Indian tribes, or on the distribution of COMMISSION the States, or on the distribution of power and responsibilities between the 47 CFR Part 73 power and responsibilities among the Federal government and Indian tribes, various levels of government. as specified in Executive Order 13175. [DA 03–1477; MB Docket No. 02–255; RM– 10524] The Secretary is publishing this Dated: May 5, 2003. interim final rule to modify minimally Tommy G. Thompson, Radio Broadcasting Services; Cottage treatment regulations that provide for Department of Health and Human Services. Grove, Depoe Bay, Garibaldi, Toledo, the use of approved opioid agonist and Veneta, OR treatment medications in the treatment List of Subjects in 42 CFR Part 8 of opiate addiction. The Narcotic Addict Health professions, Levo-Alpha- AGENCY: Federal Communications Treatment Act (the NATA, Pub. L. 93– Acetyl-Methadol (LAAM), Methadone, Commission. 281) modified the Controlled Reporting and recordkeeping ACTION: Final rule. Substances Act (CSA) to establish the requirements. basis for the Federal control of narcotic ■ For the reasons set forth above, part 8 SUMMARY: This document at the request addiction treatment by the Attorney of title 42 of the Code of Federal of Alexandra Communications, Inc. General and the Secretary. Because Regulations is amended as follows: licensee of Station KDEP(FM), Depoe enforcement of these sections of the Bay, Oregon, Signal Communications, CSA is a Federal responsibility, there PART 8—CERTIFICATION OF OPIOID Inc., licensee of Station KEUG, Inc., should be little, if any, impact from this TREATMENT PROGRAMS Cottage Grove, Oregon, and Agpal rule on the distribution of power and Broadcasting, Inc., licensee of Station ■ 1. The authority citation for part 8 responsibilities among the various KPPT(FM), Toledo, Oregon, substitutes continues to read as follows: levels of government. In addition, this channel 288A for channel 288C3 at interim final rule does not preempt Authority: 21 U.S.C. 823; Sections 301(d), Depoe Bay, Oregon, reallots channel State law. Accordingly, the Secretary 543, and 1976 of the 42 U.S.C. 257a, 288A from Depoe Bay to Garibaldi, has determined that this interim final 290aa(d), 290 dd–2, 300x–23, 300x–27(a), Oregon, and modifies the license of 300y–ll. rule does not contain policies that have Station KDEP(FM) to specify the new federalism implications or that preempt ■ 2. Section 8.12(h) (2) is revised to read community. It also substitutes channel State law. as follows: 283C3 for Channel 288A at Cottage
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Grove, Oregon, reallots channel 288C3 PART 73—RADIO BROADCAST to Oil City at petitioner’s proposed site to Veneta, Oregon, and modifies the SERVICES 27.6 kilometers (17.1 miles) northeast of license of station KEUG(FM) to specify the community at coordinates 32–54–06 ■ the new community. Finally, it reallots 1. The authority citation for Part 73 NL and 93–44–01 WL. continues to read as follows: channel 264C2 from Toledo, Oregon to DATES: Effective June 16, 2003. Depoe Bay, and modifies the license of Authority: 47 U.S.C. 154, 303, 334 and 336. FOR FURTHER INFORMATION CONTACT: station KPPT(FM) to specify the new § 73.202 [Amended] Victoria M. McCauley, Media Bureau, community. Channel 288A can be ■ (202) 418–2180. allotted at Garibaldi at a site 11 2. Section 73.202(b), the Table of FM kilometers (6.8 miles) south of the Allotments under Oregon, is amended by SUPPLEMENTARY INFORMATION: This is a community at coordinates NL 45–27–50 removing channel 288A and adding synopsis of the Commission’s Report and WL 123–56–37. Channel 288C3 can channel 264C2 at Depoe Bay, by and Order, MB Docket No. 02–199, be allotted at Veneta at a site 4.8 removing channel 288A at Cottage adopted, April 28, 2003, and released kilometers (3.0 miles) southwest of the Grove, by removing Toledo, channel April 30, 2003. The full text of this community at coordinates NL 44–01–56 264C2, by adding Garibaldi, channel Commission decision is available for and WL 123–24–19. Channel 264C2 can 288C3, and by adding Veneta, channel inspection and copying during normal be allotted at Depoe Bay at station 288C3. business hours in the FCC Reference KPPT(FM)’s current site 5.9 kilometers Federal Communications Commission. Center (Room 239), 445 12th Street, (3.7 miles) south of the community at John A. Karousos, SW., Washington, DC. This document coordinates NL 44–45–23 and WL 124– Assistant Chief, Audio Division, Media may also be purchased from the 03–01. Bureau. Commission’s duplicating contractor, [FR Doc. 03–12792 Filed 5–21–03; 8:45 am] Qualex International, Portals II, 445 DATES: Effective June 19, 2003. 12th Street, SW., Room CY–B402, BILLING CODE 6712–01–P ADDRESSES: Secretary, Federal Washington, DC, 20554, telephone 202– Communications Commission, 863–2893, facsimile 202–863–2898, or Washington, DC 20554. FEDERAL COMMUNICATIONS via e-mail [email protected]. FOR FURTHER INFORMATION CONTACT: COMMISSION List of Subjects in 47 CFR Part 73 Victoria M. McCauley, Media Bureau, 47 CFR Part 73 Radio, Radio broadcasting. (202) 418–2180. ■ [DA 03–1227; MB Docket No. 02–199; RM– Part 73 of Title 47 of the Code of SUPPLEMENTARY INFORMATION: This is a 102–199; RM–10514] Federal Regulations is amended as synopsis of the Commission’s Report follows: and Order, MB Docket No. 02–255, Radio Broadcasting Services; adopted April 30, 2003, and released Magnolia, AR and Oil City, LA PART 73—RADIO BROADCAST May 5, 2003. The full text of this SERVICES Commission decision is available for AGENCY: Federal Communications ■ 1. The authority citation for Part 73 inspection and copying during normal Commission. continues to read as follows: business hours in the FCC’s Reference ACTION: Final rule. Information Center at Portals II, CY– Authority: 47 U.S.C. 154, 303, 334, and SUMMARY: In this document, at the A257, 445 Twelfth Street, SW., 336. request of Columbia Broadcasting Washington, DC. This document may Company, Inc., licensee of Station § 73.202 [Amended] also be purchased from the KVMA–FM, Magnolia, Arkansas, the ■ Commission’s duplicating contractors, 2. Section 73.202(b), the Table of FM Commission substitutes channel 300C2 Qualex International, Portals II, 445 Allotments under Arkansas, is amended for 300C1 at Magnolia, Arkansas and 12th Street, SW., Room CY–B402, by removing Magnolia, channel 300C1. reallots Channel 300C2 from Magnolia Washington, DC 20554, telephone 202– ■ 3. Section 73.202(b), the Table of FM to Oil City, Louisiana, as the 863–2893, or via e-mail Allotments under Louisiana, is amended community’s first local transmission [email protected]. by adding Oil City, channel 300C2. service, and modifies Station KVMA’s List of Subjects in 47 CFR Part 73 authorization to specify Oil City as the Federal Communications Commission. community of license. Comments filed John A. Karousos, Radio, Radio broadcasting. by Access.1 Communications— Assistant Chief, Audio Division, Media ■ Part 73 of Title 47 of the Code of Shreveport, LLC opposing the Bureau. Federal Regulations is amended as reallotment are dismissed. Channel [FR Doc. 03–12791 Filed 5–21–03; 8:45 am] follows: 300C2 can be reallotted from Magnolia BILLING CODE 6712–01–P
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Proposed Rules Federal Register Vol. 68, No. 99
Thursday, May 22, 2003
This section of the FEDERAL REGISTER • Clearly indicate if you are for or petitions received from industry contains notices to the public of the proposed against the proposed rule or some participants. These substances were issuance of rules and regulations. The portion of it and your reason for it. evaluated by the NOSB using the purpose of these notices is to give interested Include recommended language changes criteria specified in OFPA (7 U.S.C. persons an opportunity to participate in the as appropriate. 6517 and 6518) and the NOS. The NOSB rule making prior to the adoption of the final • rules. Include a copy of articles or other also recommended that the Secretary references that support your comments. revise the annotation of one substance Only relevant material should be included within section 205.605. DEPARTMENT OF AGRICULTURE submitted. The NOSB has recommended that the It is our intention to have all Secretary add additional substances to Agricultural Marketing Service comments to this proposed rule, sections 205.605 and 205.606 which whether submitted by mail, e-mail, or have not been included in this proposed 7 CFR Part 205 fax, available for viewing on the NOP rule but are under review and, as homepage. Comments submitted in [Docket Number TM–03–02] appropriate, will be included in future response to this proposed rule will be rulemaking. RIN 0581–AC27 available for viewing in person at USDA–AMS, Transportation and II. Overview of Proposed Amendments National Organic Program; Proposed Marketing, Room 4008–South Building, The following provides an overview Amendments to the National List of 1400 Independence Ave., SW., of the proposed amendments made to Allowed and Prohibited Substances Washington, DC, from 9 a.m. to 12 noon designated sections of the National List: AGENCY: Agricultural Marketing Service, and from 1 p.m. to 4 p.m., Monday USDA. through Friday (except official Federal § 205.605 Nonagricultural (nonorganic) holidays). Persons wanting to visit the substances allowed as ingredients in or on ACTION: Proposed rule. USDA South Building to view processed products labeled as ‘‘organic’’ or comments received in response to this ‘‘made with organic (specified ingredients SUMMARY: This proposed rule would or food group(s)).’’ amend the U.S. Department of proposed rule are requested to make an Agriculture’s (USDA) National List of appointment in advance by calling (202) This proposed rule would amend Allowed and Prohibited Substances 720–3252. paragraph (a) of § 205.605 by adding (National List) to reflect FOR FURTHER INFORMATION CONTACT: Toni calcium sulfate—mined and glucono recommendations submitted to the A. Strother, Agricultural Marketing delta-lactone. This proposed rule would Secretary by the National Organic Specialist, Telephone: (202) 720–3252; also amend paragraph (b) of § 205.605 Standards Board (NOSB) from Fax: (202) 205–7808. by adding animal enzymes—without Lysosyme, cellulose, and tetrasodium November 15, 2000 through September SUPPLEMENTARY INFORMATION: 17, 2002. Consistent with pyrophosphate. recommendations from the NOSB, this I. Background This proposed rule would revise proposed rule would: add five On December 21, 2000 the Secretary current paragraph (b) of § 205.605 by substances, along with any restrictive established, within the National Organic amending an annotation to read as annotations, to the National List, and Standards (NOS) (7 CFR part 205), the follows: revise the annotation of one substance. National List (§§ 205.600 through Potassium hydroxide—prohibited for DATES: Comments must be received by 205.607). The National List is the use in lye peeling of fruits and June 2, 2003. Federal list that identifies synthetic vegetables except when used for peeling ADDRESSES: Interested persons may substances and ingredients that are peaches during the Individually Quick comment on this proposed rule using allowed and nonsynthetic (natural) Frozen (IQP) production process. the following procedures: substances and ingredients that are III. Related Documents • Mail: Comments may be submitted prohibited for use in organic production by mail to: Richard H. Mathews, and handling. Since established, the Eight notices were published Program Manager, National Organic National List has not been amended. regarding the meetings of the NOSB and Program, USDA–AMS–TMP–NOP, 1400 However, under the authority of the its deliberations on recommendations Independence Ave., SW., Room 4008– Organic Foods Production Act of 1990 and substances petitioned for amending So., Ag Stop 0268, Washington, DC (OFPA), as amended (7 U.S.C. 6501 et the National List. Substances and 20250. seq.), the National List can be amended recommendations included in this • E-mail: Comments may be by the Secretary based on proposed proposed rule were announced for submitted via the Internet to: amendments developed by the NOSB. NOSB deliberation in the following [email protected]. This proposed rule would amend the Federal Register Notices: (1) 65 FR • Fax: Comments may be submitted National List to reflect 64657, October 30, 2000, (Animal by fax to: (202) 205–7808. recommendations submitted to the enzymes); (2) 66 FR 10873, February 20, • Written comments on this proposed Secretary by the NOSB from November 2001, (Calcium sulfate); (3) 66 FR 48654, rule should be identified with the 15, 2000 through September 17, 2002. September 21, 2001, (Cellulose, and docket number TMD–03–02. Between the specified time period, the Potassium hydroxide); and (4) 67 FR Commenters should identify the topic NOSB has recommended that the 54784, August 26, 2002, (Glucono delta- and section number of this proposed Secretary add five substances to lactone, and Tetrasodium rule to which the comment refers. § 205.605 of the National List based on pyrophosphate).
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IV. Statutory and Regulatory Authority handling operations located within the proposed rule will not have a significant The Organic Foods Production Act of State under certain circumstances. Such economic impact on a substantial 1990 (OFPA), as amended (7 U.S.C. additional requirements must: (a) number of small entities. This action 6501 et seq.), authorizes the Secretary, Further the purposes of the OFPA, (b) relaxes the regulations published in the at § 6517 (d)(1), to make amendments to not be inconsistent with the OFPA, (c) final rule and provides small entities not be discriminatory toward with more tools to use in day-to-day the National List based on proposed agricultural commodities organically operations. Small agricultural service amendments developed by the NOSB. produced in other States, and (d) not be firms, which include producers, Sections 6518 (k)(2) and 6518 (n) of effective until approved by the handlers, and accredited certifying OFPA authorize the NOSB to develop Secretary. agents, have been defined by the Small proposed amendments to the National Pursuant to section 2120 (f) of the Business Administration (SBA) (13 CFR List for submission to the Secretary and OFPA (7 U.S.C. 6519 (f)), this regulation 121.201) as those having annual receipts establish a petition process by which would not alter the authority of the of less than $750,000 and small persons may petition the NOSB for the Secretary under the Federal Meat agricultural producers are defined as purpose of having substances evaluated Inspection Act (21 U.S.C. 601 et seq.), those having annual receipts of less than for inclusion onto or deletion from the the Poultry Products Inspections Act (21 $5,000,000. National List. The National List petition U.S.C. 451 et seq.), or the Egg Products The U.S. organic industry at the end process is implemented under § 205.607 Inspection Act (21 U.S.C. 1031 et seq.), of 2001 included nearly 6,600 certified of the NOS. The current petition process concerning meat, poultry, and egg crop and livestock operations, including (65 FR 43259) can be accessed through products, nor any of the authorities of organic production and handling the NOP Web site at http:// the Secretary of Health and Human operations, producers, and handlers. www.ams.usda.gov/nop. Services under the Federal Food, Drug These operations reported certified A. Executive Order 12866 and Cosmetic Act (21 U.S.C. 301 et acreage totaling more than 2.34 million seq.), nor the authority of the acres, 72,209 certified livestock, and This action has been determined to be Administrator of the Environmental 5.01 million certified poultry. Data on non-significant for purposes of Protection Agency (EPA) under the the numbers of certified handling Executive Order 12866, and therefore, Federal Insecticide, Fungicide and operations are not yet available, but does not have to be reviewed by the Rodenticide Act (7 U.S.C. 136 et seq.). likely number in the thousands, as they Office of Management and Budget. Section 2121 of the OFPA (7 U.S.C. would include any operation that B. Executive Order 12988 6520) provides for the Secretary to transforms raw product into processed establish an expedited administrative products using organic ingredients. Executive Order 12988 instructs each appeals procedure under which persons Growth in the U.S. organic industry has executive agency to adhere to certain may appeal an action of the Secretary, been significant at all levels. From 1997 requirements in the development of new the applicable governing State official, to 2001, the total organic acreage grew and revised regulations in order to avoid or a certifying agent under this title that by 74 percent; livestock numbers unduly burdening the court system. The adversely affects such person or is certified organic grew by almost 300 final rule was reviewed under this inconsistent with the organic percent over the same period, and Executive Order and no additional certification program established under poultry certified organic increased by related information has been obtained this title. The OFPA also provides that 2,118 percent over this time. Sales since then. This proposed rule is not the U.S. District Court for the district in growth of organic products has been intended to have a retroactive effect. which a person is located has equally significant, growing on average States and local jurisdictions are jurisdiction to review the Secretary’s around 20 percent per year. Sales of preempted under section 2115 of the decision. organic products were approximately $1 Organic Foods Production Act (OFPA) billion in 1993, but are estimated to C. Regulatory Flexibility Act (7 U.S.C. 6514) from creating programs reach $13 billion this year, according to of accreditation for private persons or The Regulatory Flexibility Act (RFA) the Organic Trade Association (the State officials who want to become (5 U.S.C. 601 et seq.) requires agencies association that represents the U.S. certifying agents of organic farms or to consider the economic impact of each organic industry). In addition, USDA handling operations. A governing State rule on small entities and evaluate has accredited 81 certifying agents who official would have to apply to USDA to alternatives that would accomplish the have applied to USDA to be accredited be accredited as a certifying agent, as objectives of the rule without unduly in order to provide certification services described in section 2115 (b) of the burdening small entities or erecting to producers and handlers. A complete OFPA (7 U.S.C. 6514 (b)). States are also barriers that would restrict their ability list of names and addresses of preempted under sections 2104 through to compete in the market. The purpose accredited certifying agents may be 2108 of the OFPA (7 U.S.C. 6503 is to fit regulatory actions to the scale of found on the AMS NOP Web site, at through 6507) from creating certification businesses subject to the action. http://www.ams.usda.gov/nop. AMS programs to certify organic farms or Pursuant to the requirements set forth believe that most of these entities would handling operations unless the State in the RFA, the Agricultural Marketing be considered small entities under the programs have been submitted to, and Service (AMS) performed an economic criteria established by the SBA. approved by, the Secretary as meeting impact analysis on small entities in the Additional regulatory flexibility the requirements of the OFPA. final rule published in the Federal analysis beyond the regulatory Pursuant to section 2108(b) (2) of the Register on December 21, 2000. AMS flexibility analysis published in the OFPA (7 U.S.C. 6507(b) (2)), a State has also considered the economic NOP final rule on December 21, 2000, organic certification program may impact of this action on small entities. is not required for the purposes of this contain additional requirements for the Due to the changes reflected in this proposed rule. Comments from small production and handling of organically proposed rule that allow the use of entities affected by parts of this produced agricultural products that are additional substances in agricultural proposed rule will be considered in produced in the State and for the production and handling, the relation to the requirements of the RFA. certification of organic farm and Administrator of AMS certifies that this These comments must be submitted
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separately and cite 5 U.S.C. 609 in the (a) * * * handlers enables the Board to incur correspondence. * * * * * expenses that are reasonable and necessary to administer the program. D. Paperwork Reduction Act Calcium sulfate—mined. The fiscal period began July 1, 2002, Pursuant to the Paperwork Reduction * * * * * Glucono delta-lactone. and ends June 30, 2003. The assessment Act of 1995, the existing information rate would remain in effect indefinitely collection requirements for the NOP are * * * * * unless modified, suspended, or (b) * * * approved under OMB number 0581– terminated. 0181. No additional collection or Animal enzymes—(Rennet—animals recordkeeping requirements are derived; Catalase—bovine liver; Animal DATES: Comments must be received by imposed on the public by this proposed lipase; Pancreatin; Pepsin; and Trypsin). June 2, 2003. rule. Accordingly, OMB clearance is not * * * * * ADDRESSES: Interested persons are required by section 350(h) of the Cellulose—for use in regenerative invited to submit written comments Paperwork Reduction Act, 44 U.S.C. casings, as an anti-caking agent (non- concerning this proposed action. 3501, et seq., or OMB’s implementing chlorine bleached) and filtering aid. Comments must be sent to the Docket regulation at 5 CFR Part 1320. * * * * * Clerk, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence E. General Notice of Public Rulemaking Potassium hydroxide—prohibited for use in lye peeling of fruits and Avenue, SW., STOP 0237, Washington, This proposed rule reflects vegetables except when used for peeling DC 20250–0237; Fax: (202) 720–8938, or recommendations submitted to the peaches during the Individually Quick E-mail: [email protected]. All Secretary by the NOSB. The five Frozen (IQP) production process. comments should reference the docket substances proposed to be added to the number and the date and page number * * * * * National List were based on petitions of this issue of the Federal Register and Tetrasodium pyrophosphate—for use from the industry and evaluated by the will be made available for public only in textured meat analog products. NOSB using criteria in the Act and the inspection in the Office of the Docket regulations. Because these substances * * * * * Clerk during regular business hours or are critical to organic production and Dated: May 16, 2003. can be viewed at: http://www.ams/ handling operations, producers and Kenneth C. Clayton, usda.gov/fv/moab/html. handlers should be able to use them in Acting Administrator, Agricultural Marketing FOR FURTHER INFORMATION CONTACT: their operations as soon as possible. Services. Patricia A. Petrella or Kenneth G. Accordingly, AMS believes that a 10- [FR Doc. 03–12803 Filed 5–21–03; 8:45 am] Johnson, Marketing Order day period for interested persons to BILLING CODE 3410–02–P Administration Branch, Fruit and comment on this rule is appropriate. Vegetable Programs, AMS, USDA, Suite List of Subjects in 7 CFR Part 205 2A04, Unit 155, 4700 River Road, DEPARTMENT OF AGRICULTURE Administrative practice and Riverdale, MD 20737, telephone: (301) 734–5243, or Fax: (301)–734–5275; or procedure, Agriculture, Animals, Agricultural Marketing Service Archives and records, Imports, Labeling, George Kelhart, Technical Advisor, Marketing Order Administration Organically produced products, Plants, 7 CFR Part 930 Reporting and recordkeeping Branch, Fruit and Vegetable Programs, requirements, Seals and insignia, Soil [Docket No. FV03–930–2 PR] AMS, USDA, 1400 Independence conservation. Avenue, SW., STOP 0237, Washington, Tart Cherries Grown in the States of DC 20250–0237; telephone: (202) 720– For the reasons set forth in the Michigan, et al.; Increased Assessment 2491, or Fax: (202) 720–8938. preamble, 7 CFR Part 205, Subpart G is Rate Small businesses may request proposed to be amended as follows: information on complying with this AGENCY: Agricultural Marketing Service, regulation by contacting Jay Guerber, PART 205—NATIONAL ORGANIC USDA. PROGRAM Marketing Order Administration ACTION: Proposed rule. Branch, Fruit and Vegetable Programs, 1. The authority citation for 7 CFR AMS, USDA, 1400 Independence Part 205 continues to read as follows: SUMMARY: This proposed rule would increase the assessment rate for tart Avenue, SW., STOP 0237, Washington, Authority: 7 U.S.C. 6501–6522. cherries that are utilized in the DC 20250–0237; telephone: (202) 720– 2. Section 205.605 (proposed to be production of tart cherry products other 2491, Fax: (202) 720–8938, or e-mail: revised at 68 FR 18560, April 16, 2003) than juice, juice concentrate, or puree [email protected]. is amended by: from $0.00175 to $0.0019 per pound. It SUPPLEMENTARY INFORMATION: This a. Adding two substances to would also increase the assessment rate proposed rule is issued under Marketing paragraph (a). for cherries utilized for juice, juice Agreement and Order No. 930 (7 CFR b. Adding three substances to concentrate, or puree from $0.000875 to part 930), regulating the handling of tart paragraph (b). $0.0019 per pound. The single cherries grown in the States of c. Revising Potassium hydroxide in assessment rate for all assessable tart Michigan, New York, Pennsylvania, paragraph (b). cherries was recommended by the Oregon, Utah, Washington, and The additions and revisions read as Cherry Industry Administrative Board Wisconsin, hereinafter referred to as the follows: (Board) under Marketing Order No. 930 ‘‘order.’’ The marketing agreement and § 205.605 Nonagricultural (nonorganic) for the 2002–2003 and subsequent fiscal order are effective under the substances allowed as ingredients in or on periods. The Board is responsible for Agricultural Marketing Agreement Act processed products labeled as ‘‘organic’’ or local administration of the marketing of 1937, as amended (7 U.S.C. 601–674), ‘‘made with organic (specified ingredients order which regulates the handling of hereinafter referred to as the ‘‘Act.’’ or food group(s)).’’ tart cherries grown in the production The Department of Agriculture * * * * * area. Authorization to assess tart cherry (USDA) is issuing this proposed rule in
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conformance with Executive Order opportunity to participate and provide manufacture. The Board may consider 12866. input. the differences in the number of pounds This proposed rule has been reviewed For the 2001–2002 fiscal period, the of cherries utilized for various cherry under Executive Order 12988, Civil Board recommended, and the products and the relative market values Justice Reform. Under the marketing Department approved, assessment rates of such cherry products. The Board order now in effect, tart cherry handlers that would continue in effect from fiscal considered the above items and decided are subject to assessments. Funds to period to fiscal period unless modified, that one assessment rate should be administer the order are derived from suspended, or terminated by the USDA recommended for all assessable tart such assessments. It is intended that the upon recommendation and information cherries for the 2002–2003 fiscal period. assessment rate as issued herein would submitted by the Board or other According to the Board, processors be applicable to all assessable tart information available to USDA. have developed a strong market for juice cherries beginning July 1, 2002, and Section 930.42(a) of the order and concentrate products over the past continue until amended, suspended, or authorizes a reserve sufficient to cover few years. There is considerable belief terminated. This proposed rule will not one year’s operating expenses. The that juice will be one of the growth preempt any State or local laws, increased rates are expected to generate outlets for tart cherries. This derives regulations, or policies, unless they enough income to meet the Board’s from the industry’s promotional efforts present an irreconcilable conflict with operating expenses in 2002–2003. being undertaken for juice and this proposed rule. The Board met on January 24, 2002, concentrate products, the segmentation The Act provides that administrative and unanimously recommended 2002– of the market into retail and industrial proceedings must be exhausted before 2003 expenditures of $522,500. The components and the nutritional/ parties may file suit in court. Under Board also recommended that an nutraceutical profile of the product. As section 608c(15)(A) of the Act, any assessment rate of $0.0019 be a result, there has been an increase in handler subject to an order may file established for all tart cherry products if consumer recognition, acceptance, with USDA a petition stating that the an amendment to do so passed in a May purchases, and the value of tart cherry order, any provision of the order, or any 2002 referendum of producers and juice and concentrate. According to the obligation imposed in connection with processors. The amendment passed and Board, prices received for tart cherry the order is not in accordance with law was finalized by USDA on August 8, juice concentrate are now $25.00 per and request a modification of the order 2002 (67 FR 51698). The provisions gallon or more. This is derived by using or to be exempted therefrom. Such requiring the establishment of different the fairly common conversion ratio of handler is afforded the opportunity for assessment rates for different products 100 pounds to the gallon for mid-west a hearing on the petition. After the were removed. In their place, the Board production, which has a raw product hearing USDA would rule on the is required to consider the volume of value of $0.25 per pound. Using a 50 petition. The Act provides that the cherries used in making various gallon conversion for the product, as has district court of the United States in any products and the relative market value been used on the west coast, this district in which the handler is an of those products in deciding whether represents a per pound value of $0.50. inhabitant, or has his or her principal the assessment rate should be a single, The difference in the west and mid-west place of business, has jurisdiction to uniform rate applicable to all cherries or conversion factors is that tart cherries review USDA’s ruling on the petition, whether varying rates should be produced in the western United States provided an action is filed not later than recommended for cherries generally have a higher sugar content 20 days after the date of the entry of the manufactured into different products. and larger fruit size, thus fewer raw ruling. Prior to the amendment passing in product is needed. The average grower This proposed rule would increase referendum, the Department issued a price received ranges between $0.17 to the assessment rate established for the proposed rule on June 10, 2002 (67 FR $0.20 per pound. Board for the 2002–2003 and 39637) proposing a dual assessment rate According to the Board, puree subsequent fiscal periods for cherries at higher amounts ($0.0021 and products are as valuable and that are utilized in the production of tart $0.00105, respectively, for high and low comparable to juice and juice cherry products other than juice, juice value cherry products) since the concentrate products. The Board concentrate, or puree from $0.00175 to uniform assessment rate amendment reported that the spot price for single $0.0019 per pound of cherries. The was not yet effective. A rule strength puree for 2001–02 was about assessment rate for cherries utilized for withdrawing that proposal was $0.60 cents per pound. The raw product juice, juice concentrate, or puree would published on April 2, 2003 (68 FR equivalent (RPE) volume of pureed fruit also be increased from $0.000875 to 15971). This proposal reflects the was 539,504 pounds which is about 0.15 $0.0019 per pound. amended provisions and the Board’s percent of all processed fruit. The Board The tart cherry marketing order January 24, 2002 recommendation. also reported for 2001–02 that the price provides authority for the Board, with The amended assessment provisions for five plus one product was $0.67 the approval of USDA, to formulate an allow the Board to recommend a cents per pound. Five plus one is a annual budget of expenses and collect uniform single assessment rate for all product of cherries and sugar which is assessments from handlers to administer assessable tart cherries handled, or manufactured by many processors (25 the program. The members of the Board variable rates depending on the pounds of cherries and five pounds of are producers and handlers of tart quantities and values of the cherries sugar to make a 30 pound commercial cherries. They are familiar with the used in the various products. A two- container). It is the main product that Board’s needs and with the costs for tiered assessment rate scheme may be handlers produce. Five plus one goods and services in their local area appropriate in some years, it may not be cherries are primarily sold and and are thus in a position to formulate in others. remanufactured into assorted bakery an appropriate budget and assessment The amended order specifically items, canned pie fill, and dried rate or rates as appropriate. The provides that under § 930.41(f)(1) and cherries. Since juice, juice concentrate, assessment rates are formulated and (2) the established assessment rates may and puree are not considered to be low discussed in a public meeting. Thus, all be uniform, or may vary depending on value products at this time, the Board directly affected persons have an the product the cherries are used to considers one assessment to be
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appropriate. It is important to However, the tart cherry industry the Programs’ efforts from determining understand that product is moved experienced a severe frost, mainly in whether regulatory flexibility analyses around between production areas and Michigan, which significantly reduced are required to the consideration of may be converted into puree or the crop. The tart cherry industry is regulatory options and economic or concentrate at a later date. The market expected to only produce 60 million regulatory impacts. drives the processing of these various pounds. The Board staff has responded The purpose of the RFA is to fit products each season. to this decrease in funds by reducing regulatory actions to the scale of In comparing the prices of juice, juice staff and Committee travel for meetings business subject to such actions in order concentrate, and puree with the 5 plus and is expected to use reserve funds to that small businesses will not be unduly 1 product, the Board determined that continue administrative operations this or disproportionately burdened. current prices for these products are season. Therefore, total assessment Marketing orders issued pursuant to the similar. The information received from income for 2002–2003 is estimated at Act, and the rules issued thereunder, are the Board indicates that puree products $114,000. This amount plus adequate unique in that they are brought about are becoming a viable market and funds in the reserve and interest income through group action of essentially should be assessed at a higher would be adequate to cover budgeted small entities acting on their own assessment rate. expenses. Funds in the reserve behalf. Thus, both statutes have small As a result of this season’s 2002–2003 (approximately $233,000) would be kept entity orientation and compatibility. short crop, much of the tart cherry within the approximately six months’ There are approximately 40 handlers products released from inventory were operating expenses as recommended by of tart cherries who are subject to in the form of tart cherry juice and/or the Board consistent with § 930.42(a). regulation under the order and juice concentrate. There is not much, if The assessment rate established in approximately 900 producers of tart any, of this product available on the this proposed rule would continue in cherries in the regulated area. Small market today. The Board contends that effect indefinitely unless modified, agricultural service firms have been given these factors, it is hard to suggest suspended, or terminated by USDA defined by the Small Business that juice/concentrate, or puree, are of upon recommendation and other Administration (13 CFR 121.201) as lesser value than are the more information submitted by the Board or those having annual receipts less than traditional products such as pie-fill or other available information. $5,000,000, and small agricultural individually quick frozen tart cherries. Although the assessment rates are producers are those whose annual Thus, the Board determined that one effective for an indefinite period, the receipts are less than $750,000. A assessment rate is appropriate for the Board would continue to meet prior to majority of the tart cherry handlers and 2002–03 fiscal period. or during each fiscal period to producers may be classified as small Last year’s budgeted expenditures recommend a budget of expenses and entities. were $442,500. The recommended consider recommendations for The Board unanimously assessment rate of $0.0019 is higher modification of the assessment rates. recommended 2002–2003 expenditures than the current rates of $0.00175 for The dates and times of Board meetings of $522,500 and assessment rate cherries used in the production of other are available from the Board or the increases from $0.00175 to $0.0019 per than juice, juice concentrate, or puree USDA. Board meetings are open to the pound for cherries that are utilized in products, and $0.000875 for cherries public and interested persons may the production of tart cherry products used for juice, juice concentrate or express their views at these meetings. other than juice, juice concentrate, or puree products. USDA will evaluate Board puree, and from $0.000875 to $0.0019 The major expenditures recommendations and other available per pound for cherries utilized for juice, recommended by the Board for the information to determine whether juice concentrate, or puree. 2002–2003 fiscal period include $85,000 modifications of the assessment rates This proposed rule would increase for meetings, $170,000 for compliance, are needed. Further rulemaking would the assessment rate established for the $185,000 for personnel, $80,000 for be undertaken as necessary. The Board’s Board and collected from handlers for office expenses, and $2,500 for industry 2002–2003 budget and those for the 2002–2003 and subsequent fiscal educational efforts. Budgeted expenses subsequent fiscal periods would be periods for cherries that are utilized in for those items in 2001–2002 were reviewed and, as appropriate, approved the production of tart cherry products to $80,000 for meetings, $100,000 for by the USDA. $0.0019 per pound. The Board compliance, $185,000 for personnel, unanimously recommended 2002–2003 $75,000 for office expenses, and $2,500 The Regulatory Flexibility Act and expenditures of $522,500. The quantity for industry educational efforts, Effects on Small Businesses of assessable tart cherries expected to be respectively. As discussed below, the The Agricultural Marketing Service produced during the 2002–2003 crop Board’s staff has taken steps to reduce (AMS) has considered the economic year was estimated at 260 million actual expenditures for 2002–03 due to impact of this action on small entities pounds. However, the tart cherry the assessment revenue shortfall. In and has prepared this initial regulatory industry experienced a severe frost, comparison, last year’s budgeted flexibility analysis. The Regulatory mainly in Michigan, which has expenditures were $442,500. The Flexibility Act (RFA) allows AMS to significantly reduced the crop. The tart recommended assessment rate of certify that regulations do not have a cherry industry is expecting to only $0.0019 is higher than the current rates significant economic impact on a produce 60 million pounds during of $0.00175 and $0.000875, substantial number of small entities. 2002–03. The Board staff has responded respectively. The Board recommended However, as a matter of general policy, to this decrease in funds by reducing an increased assessment rate to generate AMS’s Fruit and Vegetable Programs staff and Committee travel for meetings larger revenue to meet its expenses and (Programs) no longer opts for such and is expected to use reserve funds to keep its reserves at an acceptable level. certification, but rather performs continue administrative operations this In deriving the recommended regulatory flexibility analyses for any season. Assessment income, based on assessment rates, the Board determined rulemaking that would generate the this crop, along with interest income assessable tart cherry production for the interest of a significant number of small and reserves, would be adequate to fiscal period at 260 million pounds. entities. Performing such analyses shifts cover budgeted expenses.
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The major expenditures the marketing order. The Board’s Authority: 7 U.S.C. 601–674. recommended by the Board for the meeting was widely publicized 2. Section 930.200 is revised to read 2002–2003 fiscal period include $85,000 throughout the tart cherry industry and as follows: for meetings, $170,000 for compliance, all interested persons were invited to $185,000 for personnel, $80,000 for attend the meeting and participate in § 930.200 Handler assessment rate. office expenses, and $2,500 for industry Board deliberations on all issues. Like On and after July 1, 2002, the educational efforts. Budgeted expenses all Board meetings, the January 24, assessment rate imposed on handlers for those items in 2001–2002 were 2002, meeting was a public meeting and shall be $0.0019 per pound of cherries $80,000 for meetings, $100,000 for all entities, both large and small, were handled for tart cherries grown in the compliance, $185,000 for personnel, able to express views on this issue. production area. $75,000 for office expenses, and $2,500 Finally, interested persons were invited Dated: May 16, 2003. for industry educational efforts, to submit information on the regulatory Kenneth C. Clayton, respectively. and informational impacts of this action The Board discussed the alternative of on small businesses. Acting Administrator, Agricultural Marketing continuing the existing assessment This action will impose no additional Service. rates, but concluded that would cause reporting or recordkeeping requirements [FR Doc. 03–12804 Filed 5–21–03; 8:45 am] the amount in the operating reserve to on either small or large tart cherry BILLING CODE 3410–02–P be reduced to an unacceptable level. handlers. As with all Federal marketing The principal demand for tart cherries order programs, reports and forms are is in the form of processed products. periodically reviewed to reduce DEPARTMENT OF TRANSPORTATION Tart cherries are dried, frozen, canned, information requirements and juiced, and pureed. Data from the duplication by industry and public Federal Aviation Administration National Agricultural Statistics Service sector agencies. (NASS) states that during the period USDA has not identified any relevant 14 CFR Part 71 1995/96 through 2002/03, Federal rules that duplicate, overlap, or [Docket No. FAA 2003–15124; Airspace approximately 92 percent of the U.S. conflict with this rule. Docket No. 03–ASO–5] tart cherry crop, or 285.7 million A small business guide on complying pounds, was processed annually. Of the with fruit, vegetable, and specialty crop Proposed Amendment of Class E5 285.7 million pounds of tart cherries marketing agreements and orders may Airspace; Augusta, GA processed, 58 percent was frozen, 30 be viewed at: http://www.ams.usda.gov/ AGENCY: percent was canned, and 12 percent was fv/moab/html. Any questions about the Federal Aviation utilized for juice. compliance guide should be sent to Jay Administration (FAA), DOT. Based on NASS data, acreage in the Guerber at the previously mentioned ACTION: Notice of proposed rulemaking. United States devoted to tart cherry address in the FOR FURTHER INFORMATION SUMMARY: This notice proposes to production has been trending CONTACT section. amend Class E5 airspace at Augusta, downward. Since 1987/88 tart cherry A 10-day comment period is provided GA. A Area Navigation (RNAV) Global bearing acres have decreased from to allow interested persons to respond Positioning System (GPS) Runway 50,050 acres, to 36,900 acres in the to this proposed rule. Ten days is (RWY) 17 Standard Instrument 2002/03 crop year. In 2002/03, 93 deemed appropriate because: (1) The Approach Procedure (SIAP) to Augusta percent of domestic tart cherry acreage 2002–2003 fiscal period began on July 1, Regional at Bush Field Airport has been was located in four States: Michigan, 2002, and ends on June 30, 2003, and developed. Additionally, it has been New York, Utah, and Wisconsin. the marketing order requires that the determined a modification should be Michigan leads the nation in tart cherry rates of assessment for each fiscal period acreage with 74 percent of the total apply to all assessable tart cherries made to the Augusta, GA, Class E5 production. Michigan produces about handled during such fiscal period; (2) airspace area to contain the 75 percent of the U.S. tart cherry crop the Board needs the funds to operate the Nondirectional Radio Beacon (NDB) or each year. Tart cherry acreage in program; and (3) handlers are aware of GPS RWY 17 SIAP to Augusta Regional Michigan decreased from 28,500 acres this action which was unanimously at Bush Field Airport. Controlled in 2000–2001, to 27,400 acres in 2002– recommended by the Board at a public airspace extending upward from 700 2003. meeting. All written comments timely feet Above Ground Level (AGL) is A review of historical information and received will be considered before a needed to contain these SIAPs. preliminary information pertaining to final determination is made on this DATES: Comments must be received on the 2002–2003 fiscal period indicates matter. or before June 23, 2003. ADDRESSES: Send comments on this that the grower price could range List of Subjects in 7 CFR Part 930 between $0.448 and $0.45 cents per proposal to the Docket Management pound of tart cherries. This is a high Marketing agreements, Reporting and System, U.S. Department of price due to the short crop this year. recordkeeping requirements, Tart Transportation, Room Plaza 401, 400 Therefore, the estimated assessment cherries. Seventh Street, SW., Washington, DC revenue for the 2002–2003 fiscal period For the reasons set forth in the 20590–0001. You must identify the as a percentage of total grower revenue preamble, 7 CFR part 930 is proposed to docket number FAA–2003–15124/ could be less than one-half of one be amended as follows: Airspace Docket No. 03–ASO–5, at the percent. PART 930—TART CHERRIES GROWN beginning of your comments. You may While this action will impose IN THE STATES OF MICHIGAN, NEW also submit comments on the Internet at additional costs on handlers, the costs YORK, PENNSYLVANIA, OREGON, http://dms.dot.gov. You may review the are in the form of assessments which are UTAH, WASHINGTON, AND public docket containing the proposal, applied uniformly. Some of the costs WISCONSIN any comments received, and any final may also be passed on to producers. disposition in person in the Dockets However, these costs are offset by the 1. The authority citation for 7 CFR Office between 9 a.m. and 5 p.m., benefits derived from the operation of part 930 continues to read as follows: Monday through Friday, except Federal
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holidays. The Docket office (telephone page at http://www.access.gpo.gov/nara. proposes to amend 14 CFR part 71 as 1–800–647–5527) is on the plaza level Additionally, any person may obtain a follows: of the Department of Transportation copy of this notice by submitting a NASSIF Building at the above address. request to the Federal Aviation PART 71—DESIGNATION OF CLASS A, An informal docket may also be Administration, Office of Air Traffic CLASS B, CLASS C, CLASS D, AND examined during normal business hours Airspace Management, ATA–400, 800 CLASS E AIRSPACE AREAS; at the office of the Regional Air Traffic Independence Avenue, SW., AIRWAYS; ROUTES; AND REPORTING Division, Federal Aviation Washington, DC 20591, or by calling POINTS Administration, Room 550, 1701 (202) 267–8783. Communications must Columbia Avenue, College Park, Georgia identify both docket numbers for this 1. The authority citation for Part 71 30337. notice. Persons interested in being continues to read as follows: FOR FURTHER INFORMATION CONTACT: placed on a mailing list for future Authority: 49 U.S.C. 106(g); 40103, 40113, Walter R. Cochran, Manager, Airspace NPRMs should contact the FAA’s Office 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Branch, Air Traffic Division, Federal of Rulemaking, (202) 267–9677, to 1963 Comp., p. 389. Aviation Administration, P.O. Box request a copy of Advisory Circular No. 20636, Atlanta, Georgia 30320; 11–2A, Notice of Proposed Rulemaking § 71.1 [Amended] telephone (404) 305–5627. Distribution System, which describes 2. The incorporation by reference in SUPPLEMENTARY INFORMATION: the application procedure. 14 CFR 71.1 of Federal Aviation Administration Order 7400.9K, Airspace Comments Invited The Proposal Designations and Reporting Points, Interested parties are invited to The FAA is considering an dated August 30, 2002, and effective participate in this proposed rulemaking amendment to Part 71 of the Federal September 16, 2002, is amended as by submitting such written data, views Aviation Regulations (14 CFR Part 71) to follows: Paragraph 6005 Class E or arguments as they may desire. amend Class E5 airspace at Augusta, Airspace Areas Extending Upward from Comments that provide the factual basis GA. Class E airspace designations for 700 feet or More Above the Surface of supporting the views and suggestions airspace areas designated as airspace the Earth. areas extending upward from 700 feet or presented are particularly helpful in * * * * * developing reasoned regulatory more above the surface of the earth are decisions on the proposal. Comments published in Paragraph 6005 of FAA ASO GA E5 Augusta, GA [REVISED] are specifically invited on the overall Order 7400.9K, dated August 30, 2002, Augusta Regional At Bush Field Airport, GA regulatory, aeronautical, economic, and effective September 16, 2002, which (Lat. 33°22′12″ long. 81°57′52″) environmental, and energy-related is incorporated by reference in 14 CFR Bushe NDB aspects of the proposal. 71.1. The Class E airspace designations (Lat. 33°17′13″ long. 81°56′49″) Communications should identify both listed in this document would be Emory NDB docket numbers and be submitted in published subsequently in the Order. (Lat. 33°27′46″ long. 81°59′49″) triplicate to the address listed above. The FAA has determined that this Daniel Field Commenters wishing the FAA to proposed regulation only involves an (Lat. 33°27′59″ long. 82°02′21″) acknowledge receipt of their comments established body of technical Burke County Airport ° ′ ″ ° ′ ″ on this notice must submit with those regulations for which frequent and (Lat. 33 02 28 long. 82 00 14 ) Burke County NDB comments a self-addressed, stamped routine amendments are necessary to ° ′ ″ ° ′ ″ postcard on which the following keep them operationally current. It, (Lat. 33 02 33 long. 82 00 17 ) statement is made: ‘‘Comments to therefore, (1) is not a ‘‘significant That airspace extending upward from 700 Docket No. FAA–2003–15125/Airspace regulatory action’’ under Executive feet above the surface within an 8.2-mile Docket No. 03–ASO–5.’’ The postcard Order 12866; (2) is not a ‘‘significant radius of Augusta Regional At Bush Field will be date/time stamped and returned rule’’ under DOT Regulatory Policies Airport, and within 8 miles west and 4 miles east of the 172° bearing from the Bushe NDB to the commenter. All communications and Procedures (44 FR 11034; February extending from the 8.2-mile radius to 16 received before the specified closing 26, 1979); and (3) does not warrant miles south of Bushe NDB, and within 8 date for comments will be considered preparation of a Regulatory Evaluation miles west and 4 miles east of the 349° before taking action on the proposed as the anticipated impact is so minimal. bearing from the Emory NDB extending from rule. The proposal contained in this Since this is a routine matter that will the 8.2-mile radius to 16 miles north of notice may be changed in light of the only affect air traffic procedures and air Emory NDB, and within a 6.3-mile radius of comments received. A report navigation, it is certified that this rule, Daniel Field, and within a 6.2-mile radius of summarizing each substantive public when promulgated, will not have a Burke County Airport and within 3.5 miles contact with FAA personnel concerned significant economic impact on a each side of the 243° bearing from the Burke with this rulemaking will be filed on the substantial number of small entities County NDB extending from the 6.2-mile docket. under the criteria of the Regulatory radius to 7 miles southwest of the NDB. Availability of NPRMs Flexibility Act. * * * * * An electronic copy of this document List of Subjects in 14 CFR Part 71 Issued in College Park, Georgia on May, 2003. may be downloaded through the Airspace, Incorporation by reference, Internet at http://dms.dot.gov. Recently Navigation (Air). Walter R. Cochran, published rulemaking documents can Acting Manager, Air Traffic Division, also be accessed through the FAA’s Web The Proposed Amendment Southern Region. page at http://www.faa.gov or the In consideration of the foregoing, the [FR Doc. 03–12818 Filed 5–21–03; 8:45 am] Superintendent of Document’s Web Federal Aviation Administration BILLING CODE 4910–13–M
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DEPARTMENT OF TRANSPORTATION We asked persons who wished to ACTION: Notice of proposed rulemaking. speak at the hearing to submit requests Office of the Secretary to us as soon as possible. We received SUMMARY: The Coast Guard proposes to 26 requests by noon on Friday, May 16. revise the Regulated Navigation Area in 14 CFR Part 255 and Part 399 We have determined to allow all 26 Hampton Roads, Virginia, by imposing persons to speak. Each of them will vessel reporting requirements and speed [Dockets Nos. OST–97–2881, OST–97–3014, limit restrictions in certain areas of the OST–98–4775, and OST–99–5888] have fifteen minutes to speak, which will include any time needed for port. These measures are necessary RIN 2105–AC65 answering questions from Mr. Reynolds. because of the unique physical characteristics and resources contained Computer Reservations System (CRS) If we have additional time at the end of the hearing, we may allow others to in the port. These regulations will Regulations; Statements of General enhance the safety and security of Policy speak as well. We are not allowing rebuttals, and we have decided that vessels and property in the Hampton AGENCY: Office of the Secretary, organizing the hearing in panel form Roads port complex while minimizing, Department of Transportation. would be impracticable due to the to the extent possible, the impact on commerce and legitimate waterway use. ACTION: Notice of change in time of number of speakers and the complexity public hearing; notice of procedures for of the issues. DATES: Comments and related material hearing. We plan to have the following persons must reach the Coast Guard on or before speak in the morning session, in the July 21, 2003. SUMMARY: On Thursday, May 22, 2003, following order: Sabre, Amadeus, ADDRESSES: You may mail comments at 9 a.m., the Department will conduct Worldspan, TechNet Texas, Galileo, and related material to the Marine a public hearing on its pending Orbitz, America West, American, Safety Division, Fifth Coast Guard rulemaking on computer reservations Travelers First, and United. The District, 431 Crawford Street, systems (CRSs). The public hearing will speakers in the afternoon session will be Portsmouth, Virginia 23704. The Marine be held at the Marriott at Metro Center, as follows: Delta, Continental, U.S. Safety Division of the Fifth Coast Guard 775 12th Street, NW., Washington, DC. Airways, Northwest, Southwest, District maintains the public docket for This notice changes the beginning time Shepherd Systems, Air Carrier this rulemaking. The docket, as well as from 9:30 a.m. to 9 a.m., sets forth the Association, Travelocity, American documents indicated in this preamble as procedures for the hearing, and lists the Society of Travel Agents, Expedia, Large being available in the docket, will be speakers in order of appearance. Agency Coalition, Stratton Travel available for inspection or copying at FOR FURTHER INFORMATION CONTACT: Management, Interactive Travel Services the Coast Guard Fifth District, between Thomas Ray, Office of the General Association, Competitive Enterprise 9 a.m. and 3 p.m., Monday through Counsel, 400 Seventh St., SW., Institute, Progress & Freedom Friday, except Federal holidays. Washington, DC 20590, (202) 366–4731. Foundation, and Mercatus. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: The Speakers need not provide written Lieutenant Commander Roger Smith, Department is conducting a rulemaking statements at the hearing. If they choose Marine Safety Division, Fifth Coast to determine whether its rules governing to do so, they must also submit a copy Guard District, (757) 398–6389, between CRS operations, 14 CFR part 255, to the docket for this proceeding. 9 a.m. and 3 p.m., Monday through remain necessary and, if so, whether the A transcript of the hearing prepared Friday, except Federal holidays. by a court reporter will be put in the current rules are effective. Our notice of SUPPLEMENTARY INFORMATION: proposed rulemaking set forth our docket for this rulemaking, so that tentative proposals regarding the anyone who is unable to attend the Request for Comments existing rules and our tentative belief hearing can learn what was said. We We encourage you to participate in that we should not extend the rules to plan to place the transcript in the docket this rulemaking by submitting cover the sale of airline tickets through within one week of the hearing. comments and related material. If you the Internet. 67 FR 69366, November 15, Issued in Washington, DC, on May 19, do so, please include your name and 2002. While interested persons have the 2003. address, identify the docket number for opportunity to file comments and reply Read C. Van de Water, this rulemaking (CGD05–02–099), comments, we are also holding a public Assistant Secretary for Aviation and indicate the specific section of this hearing on May 22 where interested International Affairs. document to which each comment persons may present their views on the [FR Doc. 03–12943 Filed 5–20–03; 8:53 am] applies, and give the reason for each major issues. 68 FR 25844, May 14, BILLING CODE 4910–62–P comment. Please submit all comments 2003. Michael Reynolds, the Deputy and related material in an unbound Assistant Secretary for Aviation and format, no larger than 81⁄2 by 11 inches, International Affairs, will preside. We DEPARTMENT OF HOMELAND suitable for copying. If you would like must limit each speaker’s time and the SECURITY to know they reached us, please enclose number of persons who may speak, a stamped, self-addressed postcard or because the hearing will last only one Coast Guard envelope. We will consider all day. Persons who are unable to speak at comments and material received during the hearing may, of course, present their 33 CFR Part 165 the comment period. We may change views on the issues (and on statements this proposed rule in view of them. made at the hearing) in their reply [CGD05–02–099] comments. Public Meeting We initially planned to begin the RIN 1625–AA11 (Formerly RIN 2115–AE84) We do not now plan to hold a public hearing at 9:30 a.m. We have now Regulated Navigation Area in Hampton meeting. You may submit a request for decided to begin at 9 a.m., which will Roads, VA a meeting by writing to the Marine allow us to give each speaker more time Safety Division at the address under for his or her presentation. AGENCY: Coast Guard, DHS. ADDRESSES, explaining why one would
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be beneficial. If we determine that one must have the means to be aware of, This rule proposes to update the would aid this rulemaking, we will hold deter, detect, intercept, and respond to Regulated Navigation Area to one at a time and place announced by asymmetric threats, acts of aggression, encompass aspects of navigational a later notice in the Federal Register. and attacks by terrorists on the safety and security in a post September American homeland while still 11, 2001 environment. The reporting Background and Purpose maintaining our freedoms and and speed limit restrictions will enable History sustaining the flow of commerce. A the COTP to closely monitor vessel Terrorist attacks on September 11, Regulated Navigation Area is a tool movements in the Regulated Navigation 2001, inflicted catastrophic human available to the Coast Guard that may be Area. casualties and property damage. These used to control vessel traffic by Discussion of Proposed Rule attacks highlighted the terrorists’ ability specifying times of vessel entry, Regulated Navigation Area and desire to utilize multiple means in movement, or departure to, from, different geographic areas to increase within, or through ports, harbors, or Offshore Zone: The proposed rule will their opportunities to successfully carry other waters. expand the geographical definition of out their mission, thereby maximizing On October 24, 2001, we published a the Hampton Roads Regulated destruction using multiple terrorist acts. temporary final rule entitled, Navigation Area to include the waters of Since the September 11, 2001 terrorist ‘‘Regulated Navigation Area; the 12 nautical mile territorial sea off attacks on the World Trade Center in Chesapeake Bay Entrance and Hampton the Coast of Virginia. New York, the Pentagon in Arlington, Roads, VA and Adjacent Waters,’’ in the Inland Zone: The geographical Virginia and Flight 93, the Federal Federal Register (66 FR 53712). The boundaries of the inland waters Bureau of Investigation (FBI) has issued temporary final rule required that all included in the existing Regulated several warnings concerning the vessels of 300 gross tons or greater to Navigation Area will be unchanged potential for additional terrorist attacks reduce speed to eight knots in the under the proposed rule. within the United States. The threat of vicinity of Naval Station Norfolk, in Definitions maritime attacks is real as evidenced by order to improve security measures and the October 2002 attack on a tank vessel reduce the potential threat to Naval The proposed rule will expand the off the coast of Yemen and the prior Station Norfolk security that may be definition section of the existing attack on the USS COLE. These attacks posed by these vessels. We have Regulated Navigation Area to define I– manifest a continuing threat to U.S. received no comments since the 664 Bridge, Designated Representative assets as described in the President’s publication of this rule. of the Captain of the Port, Offshore finding in Executive Order 13273 of On December 27, 2001, we published waters, Inland waters, and Coast Guard August 21, 2002 (67 FR 56215, a temporary final rule entitled, Patrol Commander. September 3, 2002) that the security of ‘‘Regulated Navigation Area; Applicability the U.S. is endangered by the Chesapeake Bay Entrance and Hampton This section will be unchanged by the September, 11, 2001 attacks and that Roads, VA and Adjacent Waters,’’ in the proposed rule. such disturbances continue to endanger Federal Register (66 FR 66753). The the international relations of the United temporary rule expanded the geographic Regulations States. See also Continuation of the definitions of the Hampton Roads Anchoring Restrictions: The proposed National Emergency with Respect to Regulated Navigation Area to include rule will simplify anchoring restrictions. Certain Terrorist Attacks, (67 FR 58317, the waters of the 12 nautical mile Under the proposed rule vessels may September 13, 2002); Continuation of territorial sea off the Coast of Virginia anchor in all areas of the offshore waters the National Emergency With Respect and added new port security measures. of the Regulated Navigation Area except To Persons Who Commit, Threaten To The port security measures required that for the entrances to the shipping Commit, Or Support Terrorism, (67 FR vessels in excess of 300 gross tons, channels without prior permission from 59447, September 20, 2002). The U.S. including tug and barge combinations in the Captain of the Port. No vessel over Maritime Administration (MARAD) in excess of 300 gross tons combined, 65 feet long may anchor or moor in the Advisory 02–07 advised U.S. shipping perform the following. Check in with inland waters of the Regulated interests to maintain a heightened state the Captain of the Port or his Navigation Area outside the anchorage of alert against possible terrorist attacks. representative at least 30 minutes prior designated in § 110.168 of 33 CFR MARAD more recently issued Advisory to entry to obtain permission to transit unless the vessel has the permission of 03–01 informing operators of maritime the Regulated Navigation Area. The the Captain of the Port or has an interests of increased threat possibilities vessel may enter the Regulated emergency. Vessels may not anchor to vessels and facilities and a higher risk Navigation Area upon authorization and within the confines of Little Creek of terrorist attack to the transportation approval by the Captain of the Port or Harbor, Desert Cove, or Little Creek community in the United States. The his representative. A vessel that receive Cove without the permission of the ongoing hostilities in Afghanistan and permission to enter the Regulated Captain of the Port. growing tensions in Iraq have made it Navigation Area remain subject to a Anchoring Detail Requirements: The prudent for U.S. ports and waterways to Coast Guard port security boarding. proposed rule will not change the be on a higher state of alert because the Thirty (30) minutes prior to getting Anchoring Detail Requirements section, al Qaeda organization and other similar underway, vessels departing or moving but places it immediately after the organizations have declared an ongoing within the Regulated Navigation Area Anchoring Restrictions section. intention to conduct armed attacks on must contact the Captain of the Port or Secondary Towing Rig Requirements: U.S. interests worldwide. his representative via VHF–FM channel This section will be unchanged by the Due to increased awareness that 13 or 16, call (757) 444–5209/5210 or proposed rule. future terrorist attacks are possible, the (757) 441–3298 for the Captain of the Thimble Shoals Channel Controls: Coast Guard as lead federal agency for Port Duty Officer. We have received no The proposed rule will combine the maritime homeland security, has comments since the publication of this Draft Limitation section and Traffic determined that the District Commander rule. Direction sections of the existing
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Regulated Navigation Area into one 300 gross tons combined to do the in a future notice of proposed section. following. Obtain authorization from the rulemaking. Restrictions on Vessels with Impaired Captain of the Port, or the designated Section (d)(13), Restrictions on the Maneuverability: The proposed rule will representative of the Captain of the Port, Use of the Elizabeth River Ferry Dock at simplify this section by preventing prior to entering the Regulated the Foot of High Street, Portsmouth, vessels over 100 gross tons, with Navigation Area. Ensure that no person Virginia will be deleted under the impaired maneuverability, from who is not a permanent member of the proposed rule. The Elizabeth River entering the Regulated Navigation Area vessel’s crew, or a member of a Coast Ferry Dock has been removed and without the permission of the Captain of Guard boarding team, boards the vessel replaced by a cove at the Foot of High the Port. The proposed rule will require without a valid purpose and photo Street, Portsmouth, Virginia. This vessels over 100 gross tons that identification. Report any departure section was a necessary safety measure experience impaired maneuverability, from or movement within the Regulated to avoid potential collisions between while operating within the Regulated Navigation Area to the designated Elizabeth River traffic and the Elizabeth Navigation, to report the impairment to representative of the Captain of the Port River Ferry when the ferry operated the Captain of the Port. prior to getting underway. The from the then existing dock. Since the Requirements for Navigation Charts, designated representative of the Captain dock has been removed and the Radars and Pilots: The proposed rule of the Port shall be contacted on VHF– Elizabeth River Ferry embarks and will exempt naval and public vessels FM channel 12, or by calling (757) 444– disembarks passengers within a cove, from maintaining corrected charts of the 5209, (757) 444–5210, or (757) 668– there is no longer a need for this section. Regulated Navigation Area if the naval 5555. All vessels entering or remaining Additional grammar and syntax or public vessel carries electronic in the Regulated Navigation Area may changes have been made throughout charting and navigation systems that be subject to a vessel port security this proposed rule. have met the applicable agency inspection. Vessels awaiting a port regulations regarding navigation safety. security inspection or Captain of the Regulatory Evaluation Emergency Procedure: The proposed Port authorization to enter may be This proposed rule is not a rule will simplify this section by directed to anchor in a specific location. ‘‘significant regulatory action’’ under removing many of the existing The proposed rule will expand port restrictions. The proposed rule will section 3(f) of Executive Order 12866, security measures for vessels over 300 Regulatory Planning and Review, and allow any vessel experiencing an gross tons operating inside inland emergency to deviate from the does not require an assessment of waters. All vessels over 300 gross tons, potential costs and benefits under regulations in this section to the extent including tug and barge combinations in necessary to avoid endangering the section 6(a)(3) of that Order. The Office excess of 300 gross tons, must receive of Management and Budget has not safety of persons, property, or the authorization from the Captain of the environment. The proposed rule will reviewed it under that Order. It is not Port prior to any vessel movement. This ‘‘significant’’ under the regulatory require that vessels over 100 gross tons requirement enables the Captain of the with an emergency that is within two policies and procedures of the Port to maintain maritime domain Department of Homeland Security nautical miles of the CBBT or I–664 awareness. Bridge Tunnel to notify the Captain of (DHS). the Port of its location and the nature of Waivers We expect the economic impact of this proposed rule to be so minimal that the emergency as soon as possible. This section will be unchanged by the a full Regulatory Evaluation under the Vessel Speed Limits: The proposed proposed rule. rule will consolidate the Vessel Speed regulatory policies and procedures of Limits sections into one section. The Control of Vessels Within the Regulated DHS is not necessary. The eight knot proposed rule will incorporate the Navigation Area speed limit restriction for the Norfolk vessel speed limit for the Norfolk The proposed rule will make minor Harbor Reach will apply to vessels 300 Harbor Reach, as originally published as grammatical and syntax changes to the gross tons or greater. Vessels under 300 a temporary final rule in the Federal existing section. gross tons will be exempt. The speed Register (66 FR 53712). Under the limit requirements will only be in effect proposed rule vessels 300 gross tons or Deleted Sections for less than four miles, and typical greater may not transit through the Section (d)(11), Restrictions on Vessel vessel speed will be 10 knots, so the Southern Branch of the Elizabeth River Operations During Aircraft Carrier and actual delay for each vessel will be less alongside Naval Station Norfolk Other Large Naval Transits of the than 6 minutes in each direction. Restricted Area at a speed in excess of Elizabeth River will be deleted under Therefore, the delay caused by the two- 8 knots. This speed restriction does not the proposed rule. This section is no knot reduction in speed will be apply to public vessels as defined in 33 longer necessary because the Coast minimal. The proposed port security U.S.C. 1321(a)(4). The vessel speed Guard published 33 CFR 165.2025, measures will affect only those vessels limits on Little Creek and the Southern Protection of Naval Vessels, which in excess of 300 gross tons that enter or Branch of the Elizabeth River will be creates a naval vessel protection zone move within the Port of Hampton unchanged by the proposed rule. around U.S. naval vessels greater than Roads. Port Security Requirements: The 100 feet in length overall at all times in Based upon the information received proposed rule will incorporate the the navigable waters of the United in response to this NRPM, the Coast additional port security measures for all States. Guard intends to carefully consider the vessels over 300 gross tons, as originally Section (d)(12), Restrictions on Vessel costs and benefits associated with this published as a temporary final rule in Operations During Liquefied Petroleum rulemaking. Accordingly, comments, the Federal Register (66 FR 66753). Gas Carrier Movements on the information and data are solicited on Under the proposed rule the additional Chesapeake Bay and Elizabeth River the economic impact of any proposed port security measures will require that will be deleted under the proposed rule. recommendation for changes to the Fifth vessels over 300 gross tons, including Liquefied Petroleum Gas and Liquefied District regulations as mentioned in tug and barge combinations in excess of Natural Gas Carriers will be addressed Background and Purpose, above.
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Small Entities Unfunded Mandates Reform Act Energy Effects Under the Regulatory Flexibility Act The Unfunded Mandates Reform Act We have analyzed this proposed rule (5 U.S.C. 601–612), we have considered of 1995 (2 U.S.C. 1531–1538) requires under Executive Order 13211, Actions whether this proposed rule would have Federal agencies to assess the effects of Concerning Regulations That a significant economic impact on a their discretionary regulatory actions. In Significantly Affect Energy Supply, substantial number of small entities. particular, the Act addresses actions Distribution, or Use. We have The term ‘‘small entities’’ comprises that may result in the expenditure by a determined that it is not a ‘‘significant small businesses, not-for-profit State, local, or tribal government, in the energy action’’ under that order because organizations that are independently aggregate, or by the private sector of it is not a ‘‘significant regulatory action’’ owned and operated and are not $100,000,000 or more in any one year. under Executive Order 12866 and is not dominant in their fields, and Though this proposed rule would not likely to have a significant adverse effect governmental jurisdictions with result in such expenditure, we do on the supply, distribution, or use of populations of less than 50,000. discuss the effects of this rule elsewhere energy. It has not been designated by the The Coast Guard certifies under 5 in this preamble. Administrator of the Office of U.S.C. 605(b) that this proposed rule Information and Regulatory Affairs as a would not have a significant economic Taking of Private Property significant energy action. Therefore, it impact on a substantial number of small This proposed rule would not affect a does not require a Statement of Energy entities. The proposed rule would affect Effects under Executive Order 13211. the following entities, some of which taking of private property or otherwise might be small entities: Shipping have taking implications under Environment companies, towing companies, dredging Executive Order 12630, Governmental We have considered the companies, commercial fishing vessels, Actions and Interference with environmental impact of this proposed small passenger vessels and recreational Constitutionally Protected Property rule and concluded that, under figure 2– vessels that operate within the Rights. 1, paragraph (34)(g), of Commandant Regulated Navigation Area. Civil Justice Reform Instruction M16475.lD, this rule is If you think that your business, categorically excluded from further organization, or governmental This proposed rule meets applicable environmental documentation. A jurisdiction qualifies as a small entity standards in sections 3(a) and 3(b)(2) of ‘‘Categorical Exclusion Determination’’ and that this rule would have a Executive Order 12988, Civil Justice is available in the docket where significant economic impact on it, Reform, to minimize litigation, indicated under ADDRESSES. please submit a comment (see eliminate ambiguity, and reduce ADDRESSES) explaining why you think it burden. List of Subjects in 33 CFR 165 qualifies and how and to what degree Protection of Children Harbors, Marine safety, Navigation this rule would economically affect it. (water), Reporting and recordkeeping Assistance for Small Entities We have analyzed this proposed rule requirements, Security measures, under Executive Order 13045, Waterways. Under section 213(a) of the Small Protection of Children from For the reasons discussed in the Business Regulatory Enforcement Environmental Health Risks and Safety preamble, the Coast Guard proposes to Fairness Act of 1996 (Pub. L. 104–121), Risks. This rule is not an economically amend 33 CFR part 165 as follows: we want to assist small entities in significant rule and would not create an understanding this proposed rule so that environmental risk to health or risk to PART 165—REGULATED NAVIGATION they can better evaluate its effects on safety that might disproportionately AREAS AND LIMITED ACCESS AREAS them and participate in the rulemaking. affect children. If the rule would affect your small 1. The authority citation for part 165 business, organization, or governmental Indian Tribal Governments continues to read as follows: jurisdiction and you have questions This proposed rule does not have Authority: 33 U.S.C. 1231; 50 U.S.C. 191; concerning its provisions or options for tribal implications under Executive 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; 49 CFR 1.46. compliance, please contact Lieutenant Order 13175, Consultation and Commander Roger Smith, Marine Safety Coordination with Indian Tribal 2. Revise § 165.501 to read as follows: Division, Fifth Coast Guard District, Governments, because it would not have (757) 398–6389. § 165.501 Chesapeake Bay entrance and a substantial direct effect on one or Hampton Roads, VA and adjacent waters— Collection of Information more Indian tribes, on the relationship regulated navigation area. This proposed rule would call for no between the Federal Government and (a) Location. The waters enclosed by new collection of information under the Indian tribes, or on the distribution of the shoreline and the following lines are Paperwork Reduction Act of 1995 (44 power and responsibilities between the a Regulated Navigation Area: U.S.C. 3501–3520). Federal Government and Indian tribes. (1) Offshore zone. A line drawn due To help the Coast Guard establish East from the mean low water mark at Federalism regular and meaningful consultation the North Carolina and Virginia border A rule has implications for federalism and collaboration with Indian and at latitude 36°33′03″ N, longitude under Executive Order 13132, Alaskan Native tribes, we published a 75°52′00″ W, to the Territorial Seas Federalism, if it has a substantial direct notice in the Federal Register (66 FR boundary line at latitude 36°33′05″ N, effect on State or local governments and 36361, July 11, 2001) requesting longitude 75°36′51″ W, thence generally would either preempt State law or comments on how to best carry out the Northeastward along the Territorial Seas impose a substantial direct cost of Order. We invite your comments on boundary line to latitude 38°01′39″ N, compliance on them. We have analyzed how this proposed rule might impact longitude 74°57′18″ W, thence due West this proposed rule under that Order and tribal governments, even if that impact to the mean low water mark at the have determined that it does not have may not constitute a ‘‘tribal Maryland and Virginia border at latitude implications for federalism. implication’’ under the Order. 38°01′39″ N, longitude 75°14′30″ W,
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thence South along the mean low water Channel, the southern boundary of environment, may a vessel anchor in a mark until Cape Charles Light, thence which extends from Thimble Shoal channel. South along the inland waters boundary Channel Lighted Buoy 2 to Lighted (C) A vessel may not anchor within line at the entrance to Chesapeake Bay. Buoy 18. the confines of Little Creek Harbor, (2) Inland Zone.— (4) Thimble Shoal South Auxiliary Desert Cove, or Little Creek Cove (i) A line drawn across the entrance Channel consists of the waters in a without the permission of the Captain of to Chesapeake Bay between Wise Point rectangular area 450 feet wide adjacent the Port. The Captain of the Port shall and Cape Charles Light, and then to the south side of Thimble Shoal consult with the Commander, Naval continuing to Cape Henry Light. Channel, the northern boundary of Amphibious Base Little Creek, before (ii) A line drawn across the which extends from Thimble Shoal granting permission to anchor within Chesapeake Bay between Old Point Channel Lighted Bell Buoy 1TS, thence this area. Comfort Light and Cape Charles City to Lighted Gong Buoy 17, thence to (2) Anchoring Detail Requirements. A Range ‘‘A’’ Rear Light. Lighted Buoy 19, thence to Lighted self-propelled vessel over 100 gross (iii) A line drawn across the James Buoy 21. tons, which is equipped with an anchor River along the eastern side of U.S. (5) I–664 Bridge means the Monitor or anchors (other than a tugboat Route 17 highway bridge, between Merrimac Bridge Tunnel. equipped with bow fenderwork of a Newport News and Isle of Wight (6) Designated representative of the type of construction that prevents an County, Virginia. Captain of the Port means a person, anchor being rigged for quick release), (iv) A line drawn across Chuckatuck including the duty officer at the Coast that is underway within two nautical Creek along the northern side of the Guard Marine Safety Office Hampton miles of the CBBT or the I–664 Bridge north span of the U.S. Route 17 highway Roads, the Joint Harbor Operations Tunnel shall station its personnel at bridge, between Isle of Wight County Center watchstander, or the Coast Guard locations on the vessel from which they and Suffolk, Virginia. or Navy patrol commander who has can anchor the vessel without delay in (v) A line drawn across the been authorized by the Captain of the an emergency. Nansemond River along the northern Port to act on his or her behalf and at (3) Secondary Towing Rig side of the Mills Godwin (U.S. Route 17) his or her request to carry out such Requirements on Inland Waters. (i) A Bridge, Suffolk, Virginia. orders and directions as needed. All vessel over 100 gross tons may not be (vi) A line drawn across the mouth of patrol vessels shall display the Coast towed in the inland waters of the Bennetts Creek, Suffolk, Virginia. Guard Ensign at all times when Regulated Navigation Area unless it is (vii) A line drawn across the Western underway. equipped with a secondary towing rig, Branch of the Elizabeth River along the (7) Offshore waters means waters in addition to its primary towing rig, eastern side of the West Norfolk Bridge, seaward of the COLREGS Line of that: Portsmouth, Virginia. Demarcation. (A) Is of sufficient strength for towing (viii) A line drawn across the (8) Inland waters means waters within the vessel. Southern Branch of the Elizabeth River the COLREGS Line of Demarcation. (B) Has a connecting device that can along the northern side of the I–64 receive a shackle pin of at least two highway bridge, Chesapeake, Virginia. (9) Coast Guard Patrol Commander is a Coast Guard commissioned, warrant or inches in diameter. (ix) A line drawn across the Eastern (C) Is fitted with a recovery pickup petty officer who has been designated Branch of the Elizabeth River along the line led outboard of the vessel’s hull. western side of the west span of the by the Commander, Coast Guard Group (ii) A tow consisting of two or more Campostella Bridge, Norfolk, Virginia. Hampton Roads. vessels, each of which is less than 100 (x) A line drawn across the Lafayette (c) Applicability. This section applies gross tons, that has a total gross tonnage River along the western side of the to all vessels operating within the that is over 100 gross tons, shall be Hampton Boulevard Bridge, Norfolk, Regulated Navigation Area, including equipped with a secondary towing rig Virginia. naval and public vessels, except vessels between each vessel in the tow, in (xi) A line drawn across Little Creek that are engaged in the following addition to its primary towing rigs, along the eastern side of the Ocean View operations: while the tow is operating within this Avenue (U.S. Route 60) Bridge, Norfolk, (1) Law Enforcement. Regulated Navigation Area. The Virginia. (2) Servicing aids to navigation. secondary towing rig must: (xii) A line drawn across Lynnhaven (3) Surveying, maintenance, or (A) Be of sufficient strength for towing Inlet along the northern side of Shore improvement of waters in the Regulated the vessels. Drive (U.S. Route 60) Bridge, Virginia Navigation Area. (B) Have connecting devices that can Beach, Virginia. (d) Regulations. (1) Anchoring receive a shackle pin of at least two (b) Definitions. In this section: Restrictions. (i) Vessels may anchor in inches in diameter. (1) CBBT means the Chesapeake Bay all areas of the offshore waters of the (C) Be fitted with recovery pickup Bridge Tunnel. Regulated Navigation Area except for lines led outboard of the vessel’s hull. (2) Thimble Shoal Channel consists of the entrances to the shipping channels (4) Thimble Shoals Channel Controls. the waters bounded by a line connecting without prior permission from the (i) A vessel drawing less than 25 feet Thimble Shoal Channel Lighted Bell Captain of the Port. may not enter the Thimble Shoal Buoy 1TS, thence to Lighted Gong Buoy (ii) No vessel over 65 feet long may Channel, unless the vessel is crossing 17, thence to Lighted Buoy 19, thence to anchor or moor in the inland waters of the channel. Channel crossings shall be Lighted Buoy 21, thence to Lighted the Regulated Navigation Area outside made as perpendicular to the channel Buoy 22, thence to Lighted Buoy 18, an anchorage designated in § 110.168 of axis as possible. thence to Lighted Buoy 2, thence to the this title, with these exceptions: (ii) Except when crossing the channel, beginning. (A) The vessel has the permission of a vessel in the Thimble Shoal North (3) Thimble Shoal North Auxiliary the Captain of the Port. Auxiliary Channel shall proceed in a Channel consists of the waters in a (B) Only in an emergency, when westbound direction. rectangular area 450 feet wide adjacent unable to proceed without endangering (iii) Except when crossing the to the north side of Thimble Shoal the safety of persons, property, or the channel, a vessel in the Thimble Shoal
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South Auxiliary Channel shall proceed Point) at approximately 36°58′00″ N, the master’s vessel by the Captain of the in an eastbound direction. 076°20′00″ W, and gated Elizabeth River Port. (5) Restrictions on Vessels with Channel Lighted Buoys 17 (LL 9595) Dated: April 16, 2003. Impaired Maneuverability. (i) Before and 18 (LL 9600) of Craney Island Reach James D. Hull, entry. A vessel over 100 gross tons, (southwest of Norfolk International whose ability to maneuver is impaired ° ′ ″ Vice Admiral, Coast Guard, Commander, Terminal at approximately 36 54 17 N, Fifth Coast Guard District. by heavy weather, defective steering and 076°20′11″ W. [FR Doc. 03–12549 Filed 5–21–03; 8:45 am] equipment, defective main propulsion (9) Port Security Requirements. machinery, or other damage, may not Vessels in excess of 300 gross tons, BILLING CODE 4910–15–P enter the Regulated Navigation Area including tug and barge combinations in without the permission of the Captain of excess of 300 gross tons (combined), the Port. shall not enter the Regulated Navigation ENVIRONMENTAL PROTECTION (ii) After entry. A vessel over 100 Area, move within the Regulated AGENCY gross tons, which is underway in the Navigation Area, or be present within 40 CFR Part 62 Regulated Navigation Area, that has its the Regulated Navigation Area, unless ability to maneuver become impaired they comply with the following [VT–1226b; FRL–7501–9] for any reason, shall, as soon as requirements. possible, report the impairment to the (i) Obtain authorization to enter the Approval and Promulgation of State Captain of the Port. Regulated Navigation Area from the Plans for Designated Facilities and (6) Requirements for Navigation designated representative of the Captain Pollutants: Vermont; Negative Charts, Radars, and Pilots. No vessel of the Port prior to entry. All vessels Declaration over 100 gross tons may enter the entering or remaining in the Regulated AGENCY: Environmental Protection Regulated Navigation Area, unless it has Navigation Area may be subject to a Agency (EPA). on board: (i) Corrected charts of the Coast Guard boarding. ACTION: Proposed rule. Regulated Navigation Area. In lieu of (ii) Ensure that no person who is not corrected paper charts, naval and public a permanent member of the vessel’s SUMMARY: EPA proposes to approve the vessels may carry electronic charting crew, or a member of a Coast Guard sections 111(d) negative declaration and navigation systems that have met boarding team, boards the vessel submitted by the Vermont Department the applicable agency regulations without a valid purpose and photo of Environmental Conservation (DEC) regarding navigation safety; identification. on August 29, 1996. This negative (ii) An operative radar during periods (iii) Report any departure from or declaration adequately certifies that of reduced visibility; movement within the Regulated there are no existing municipal solid (iii) When in inland waters, a pilot or Navigation Area to the designated waste (MSW) landfills located in the other person on board with previous representative of the Captain of the Port state of Vermont that have accepted experience navigating vessels on the prior to getting underway. waste since November 8, 1987 and that waters of the Regulated Navigation (iv) The designated representative of must install collection and control Area. the Captain of the Port shall be systems according to EPA’s emissions (7) Emergency Procedures. (i) Except guidelines for existing MSW landfills. as provided in paragraphs (d)(7)(b) of contacted on VHF–FM channel 12, or by DATES: EPA must receive comments in this section, in an emergency any vessel calling (757) 444–5209, (757) 444–5210, writing by June 23, 2003. may deviate from the regulations in this or (757) 668–5555. section to the extent necessary to avoid (v) In addition to the authorities listed ADDRESSES: You should address your endangering the safety of persons, in this Part, this paragraph is written comments to: Mr. Steven Rapp, property, or the environment. promulgated under the authority under Chief, Air Permits, Toxics & Indoor (ii) A vessel over 100 gross tons with 33 U.S.C. 1226. Programs Unit, Office of Ecosystem an emergency that is located within two (e) Waivers. (1) The Captain of the Protection, U.S. EPA, One Congress nautical miles of the CBBT or I–664 Port may, upon request, waive any Street, Suite 1100 (CAP), Boston, Bridge Tunnel shall notify the Captain regulation in this section. Massachusetts 02114–2023. of the Port of its location and the nature (2) An application for a waiver must Copies of documents relating to this of the emergency, as soon as possible. state the need for the waiver and proposed rule are available for public (8) Vessel Speed Limits. (i) Little describe the proposed vessel operations. inspection during normal business Creek. A vessel may not proceed at a (f) Control of Vessels Within the hours at the following location: speed over five knots between the Route Regulated Navigation Area. (1) When Environmental Protection Agency, Air 60 bridge and the mouth of Fishermans necessary to prevent damage, Permits, Toxics & Indoor Program Unit, Cove (Northwest Branch of Little Creek). destruction or loss of any vessel, facility Office of Ecosystem Protection, One (ii) Southern Branch of the Elizabeth or port infrastructure, the Captain of the Congress Street, Suite 1100, Boston, River. A vessel may not proceed at a Port may direct the movement of vessels Massachusetts 02114–2023. The speed over six knots between the or issue orders requiring vessels to interested persons wanting to examine junction of the Southern and Eastern anchor or moor in specific locations. these documents should make an Branches of the Elizabeth River and the (2) If needed for the maritime, appointment with the appropriate office Norfolk and Portsmouth Belt Line commercial or security interests of the at least 24 hours before the day of the Railroad Bridge between Chesapeake United States, the Captain of the Port visit. and Portsmouth, Virginia. may order a vessel to move from the FOR FURTHER INFORMATION CONTACT: John (iii) Norfolk Harbor Reach. Nonpublic location in which it is anchored to Courcier, Office of Ecosystem Protection vessels of 300 gross tons or more may another location within the Regulated (CAP), EPA-New England, Region 1, not proceed at a speed over eight knots Navigation Area. Boston, Massachusetts 02203, (617) between the Elizabeth River Channel (3) The master of a vessel within the 918–1659, or by e-mail at Lighted Gong Buoy (LL 9470) of Norfolk Regulated Navigation Area shall comply [email protected]. While the public Harbor Reach (southwest of Sewells with any orders or directions issued to may forward questions to EPA via e-
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mail, it must submit comments on this Notice. The NPL, promulgated pursuant Information Repositories proposed rule according to the to section 105 of the Comprehensive Repositories at the following procedures outlined above. Environmental Response, addresses have been established to SUPPLEMENTARY INFORMATION: Under Compensation, and Liability Act provide detailed information concerning section 111(d) of the Clean Air Act, EPA (CERCLA) of 1980, as amended, is found this decision and all documents forming published regulations at 40 CFR part 60, at Appendix B of 40 CFR Part 300, the the basis for the response actions taken subpart B which require states to submit National Oil and Hazardous Substances at this Site as well as documentation of control plans to control emissions of Pollution Contingency Plan (NCP). The the completion of those actions: (1) U.S. designated pollutants from designated EPA and the State of Utah, through the EPA Region 8 Superfund Records facilities. In the event that a state does Utah Department of Environmental Center, 999 18th Street, Fifth Floor, not have a particular designated facility Quality (UDEQ), have determined that Denver, Colorado 80202–2466, Monday located within its boundaries, EPA all appropriate response actions under through Friday, 8 a.m.–4:30 p.m.; and, requires that a state submit a negative CERCLA, other than five-year reviews (2) Utah Department of Environmental declaration in lieu of a control plan. and operation & maintenance, have been Quality, Division of Environmental The Vermont DEC submitted the completed at the Site. However, this Response & Remediation, 168 North negative declaration to satisfy the deletion does not preclude future 1950 West, Salt Lake City, Utah 84116. requirements of 40 CFR part 60, subpart actions under Superfund if determined B. In the Final Rules Section of this necessary by EPA. List of Subjects in 40 CFR Part 300 Federal Register, EPA is approving the In the ‘‘Rules and Regulations’’ Environmental protection, Air Vermont negative declaration as a direct section of today’s Federal Register, EPA pollution control, Chemicals, Hazardous final rule without a prior proposal. EPA is publishing a Direct Final Notice of waste, Hazardous substances, is doing this because the Agency views Deletion of the Rose Park Sludge Pit Intergovernmental relations, Penalties, this action as a noncontroversial Superfund Site without prior notice of Reporting and recordkeeping submittal and anticipates that it will not intent to delete because EPA views this requirements, Superfund, Water receive any significant, material, and as a non-controversial action. EPA has pollution, Water supply. explained its reasons for this deletion in adverse comments. A detailed rationale Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. for the approval is set forth in the direct the preamble to the Direct Final Notice 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, final rule. If EPA does not receive any of Deletion. If EPA receives no 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; significant, material, and adverse significant adverse comment(s) on the 3 CFR, 1987 Comp., p. 193. Direct Final Notice of Deletion, EPA comments to this action, then the Dated: May 2, 2003. approval will become final without will not take further action on this Robert E. Roberts, further proceedings. If EPA receives Notice of Intent to Delete and deletion adverse comments, we will withdraw of the Site will proceed. If EPA receives Regional Administrator, Region 8. the direct final rule and EPA will significant adverse comment(s), EPA [FR Doc. 03–12613 Filed 5–20–03; 8:45 am] address all public comments received in will withdraw the Direct Final Notice of BILLING CODE 6560–50–P a subsequent final rule based on this Deletion and it will not take effect. EPA proposed rule. EPA will not begin a will, as appropriate, address all public ENVIRONMENTAL PROTECTION second comment period. comments in a subsequent final deletion AGENCY Dated: May 8, 2003. notice based on this Notice of Intent to Delete. EPA will not institute a second Robert W. Varney, 40 CFR Part 300 comment period on this Notice of Intent Regional Administrator, EPA New England. to Delete. Any parties interested in [FRL–7500–5] [FR Doc. 03–12864 Filed 5–21–03; 8:45 am] commenting must do so within the time BILLING CODE 6560–50–P frame noted below. For additional National Oil and Hazardous Substance, information, see the Direct Final Notice Pollution Contingency Plan; National of Deletion, located in the ‘‘Rules and Priorities List ENVIRONMENTAL PROTECTION Regulations’’ section of this Federal AGENCY AGENCY: Environmental Protection Register. Agency. 40 CFR Part 300 DATES: Comments concerning this Site ACTION: Notice of intent to delete the [FRL–7500–7] must be received by June 23, 2003. Petrochem Recycling Corp./Ekotek, Inc., ADDRESSES: Written comments should Superfund Site from the National National Oil and Hazardous Substance, be addressed to: Armando Saenz, Priorities List. Pollution Contingency Plan; National Remedial Project Manager (RPM), Mail SUMMARY: The Environmental Protection Priorities List Code: 8EPR–SR, U.S. EPA Region 8, 999 Agency (EPA) Region 8 is issuing a 18th Street, Suite 300, Denver, AGENCY: Notice of Intent to Delete the Petrochem Environmental Protection Colorado, 80202–2466. Agency. Recycling Corp./Ekotek, Inc., Superfund FOR FURTHER INFORMATION CONTACT: ACTION: Notice of Intent to Delete the Site (Site) located in Salt Lake City, Armando Saenz, 303–312–6559, Rose Park Sludge Pit Superfund Site Utah, from the National Priorities List Remedial Project Manager (RPM), Mail from the National Priorities List. (NPL) and requests public comments on Code: 8EPR–SR, U.S. EPA Region 8, 999 this Notice. The NPL, promulgated SUMMARY: The Environmental Protection 18th Street, Suite 300, Denver, pursuant to section 105 of the Agency (EPA) Region 8 is issuing a Colorado, 80202–2466. Comprehensive Environmental Notice of Intent to Delete the Rose Park SUPPLEMENTARY INFORMATION: For Response, Compensation, and Liability Sludge Pit Superfund Site (Site) located additional information, see the direct Act (CERCLA) of 1980, as amended, is in Salt Lake City, Utah, from the final Notice of Deletion published in the found at Appendix B of 40 CFR part National Priorities List (NPL) and ‘‘Rules and Regulations’’ section of this 300, the National Oil and Hazardous requests public comments on this Federal Register. Substances Pollution Contingency Plan
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(NCP). The EPA and the State of Utah, Region 8 Superfund Records Center, 999 who use a telecommunications device through the Utah Department of 18th Street, Fifth Floor, Denver, for the deaf (TDD) may call the Federal Environmental Quality (UDEQ), have Colorado 80202–2466, Monday through Information Relay Service (FIRS) at determined that all appropriate Friday, 8 a.m.–4:30 p.m. (800) 877–8339, 24 hours a day, 7 days response actions under CERCLA have a week. List of Subjects in 40 CFR Part 300 been completed at the Site. However, SUPPLEMENTARY INFORMATION: this deletion does not preclude future Environmental protection, Air pollution control, Chemicals, Hazardous I. Public Comment Procedures actions under Superfund if determined II. Background necessary by EPA. waste, Hazardous substances, III. Review Under Procedural Statutes and In the ‘‘Rules and Regulations’’ Intergovernmental relations, Penalties, Executive Orders section of today’s Federal Register, EPA Reporting and recordkeeping is publishing a Direct Final Notice of requirements, Superfund, Water I. Public Comment Procedures Deletion of the Petrochem Recycling pollution, Water supply. A. How Do I Comment on the Proposed Corp./Ekotek, Inc., Superfund Site Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. Rule? without prior notice of intent to delete 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, You may submit your comments by because EPA views this as a non- 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; mailing or delivering them to Director, controversial action. EPA has explained 3 CFR, 1987 Comp., p. 193. Office of Hearings and Appeals, its reasons for this deletion in the Dated: May 2, 2003. Department of the Interior, 801 N. preamble to the Direct Final Notice of Robert E. Roberts, Quincy Street, Suite 300, Arlington, VA Deletion. If EPA receives no significant Regional Administrator, Region 8. 22203, Attn: RIN 1090–AA84. adverse comment(s) on the Direct Final Please make your comments on the Notice of Deletion, EPA will not take [FR Doc. 03–12615 Filed 5–21–03; 8:45 am] BILLING CODE 6560–50–P proposed rule as specific as possible, further action on this Notice of Intent to confine them to issues pertinent to the Delete and deletion of the Site will proposed rule, and explain the reason proceed. If EPA receives significant DEPARTMENT OF THE INTERIOR for any changes you recommend. Where adverse comment(s), EPA will withdraw possible, your comments should refer to the Direct Final Notice of Deletion and Office of the Secretary the specific section or paragraph of the it will not take effect. EPA will, as proposal that you are addressing. appropriate, address all public 43 CFR Part 4 The Department of the Interior will comments in a subsequent final deletion not necessarily consider or include in notice based on this Notice of Intent to RIN 1090–AA84 the Administrative Record for the final Delete. EPA will not institute a second rule comments that we receive after the General Rules Relating to Procedures comment period on this Notice of Intent close of the comment period (see DATES) to Delete. Any parties interested in and Practice; Special Rules Applicable or comments delivered to an address commenting must do so within the time to Public Land Hearings and Appeals other than that listed above (see frame noted below. For additional AGENCY: Office of the Secretary, Interior. ADDRESSES). information, see the Direct Final Notice ACTION: Proposed rule. of Deletion, located in the ‘‘Rules and B. How Do I Review Comments Submitted by Others? Regulations’’ section of this Federal SUMMARY: The Office of Hearings and Register. Appeals (OHA) is proposing to revise its Comments, including names and DATES: Comments concerning this Site existing regulations governing petitions street addresses of respondents, will be must be received by June 23, 2003. for stays and requests to put bureau available for public review at the address listed under ADDRESSES during ADDRESSES: Written comments should decisions into immediate effect. The regular business hours (9 a.m. to 5 p.m.), be addressed to: Armando Saenz, revisions would specifically authorize Monday through Friday, except Remedial Project Manager (RPM), Mail OHA administrative law judges to holidays. Code: 8EPR–SR, U.S. EPA Region 8, 999 decide such petitions and requests, which arise most frequently in the Individual respondents may request 18th Street, Suite 300, Denver, confidentiality, which we will honor to Colorado, 80202–2466. context of appeals from grazing decisions that the Bureau of Land the extent allowable by law. If you wish FOR FURTHER INFORMATION CONTACT: to withhold your name or address, Armando Saenz, 303–312–6559, Management (BLM) issues. This change would expedite the administrative except for the city or town, you must Remedial Project Manager (RPM), Mail state this prominently at the beginning Code: 8EPR–SR, U.S. EPA Region 8, 999 review process by eliminating an inefficient division of authority. The of your comment. We will make all 18th Street, Suite 300, Denver, submissions from organizations or Colorado, 80202–2466. revisions would also improve the format and clarity of the regulations. businesses, and from individuals SUPPLEMENTARY INFORMATION: For identifying themselves as DATES: You should submit your additional information, see the Direct representatives or officials of comments by July 21, 2003. Final Notice of Deletion published in organizations or businesses, available the ‘‘Rules and Regulations’’ section of ADDRESSES: Send comments to: Director, for public inspection in their entirety. this Federal Register. Office of Hearings and Appeals, Department of the Interior, 801 N. II. Background Information Repository Quincy Street, Suite 300, Arlington, VA The existing regulations governing A repository at the following address 22203. hearings and appeals of BLM grazing has been established to provide detailed FOR FURTHER INFORMATION CONTACT: Will decisions allocate responsibility for information concerning this decision A. Irwin, Administrative Judge, Interior deciding petitions for a stay of such and all documents forming the basis for Board of Land Appeals, U. S. decisions to the Interior Board of Land the response actions taken at this Site as Department of the Interior, 801 N. Appeals (IBLA) and the Director, OHA. well as documentation of the Quincy Street, Suite 300, Arlington, VA Responsibility for conducting the completion of those actions: U.S. EPA 22203, Phone: 703–235–3750. Persons hearing, ruling on other motions, and
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making the initial decision on the decision. See, e.g., 43 CFR 4.1267, revise newly redesignated §§ 4.478 and appeal, however, rests with 4.1367(f), 4.1376(h). OHA has found 4.479. If this proposed rule becomes administrative law judges (ALJs) in the these procedures workable and cost- final, BLM would have to amend its Hearings Division, OHA. effective. ALJs are also authorized to regulations that refer to existing §§ 4.21 When an appeal of a grazing decision grant stays of decisions issued under through 4.31 or §§ 4.470 through 4.478 is filed with BLM, BLM currently BLM’s onshore oil and gas operations to update the cross-references. forwards the decision and regulations, see 43 CFR 3165.3(e), accompanying record to the Hearings 3165.4(c), and of civil penalties issued III. Review Under Procedural Statutes Division office in Salt Lake City, Utah. by the Minerals Management Service, and Executive Orders If a petition for a stay of the decision see 30 CFR 241.55(b). A. Regulatory Planning and Review accompanies the notice of appeal, the Therefore, OHA proposes (E.O. 12688) Hearings Division must forward the amendments to the existing regulations record to IBLA in Arlington, Virginia. to provide the authority to ALJs to rule In accordance with the criteria in Under 43 CFR 4.21(b)(4), IBLA (or the on petitions for a stay of BLM grazing Executive Order 12866, we find that this Director) has 45 days to decide whether decisions and requests to place these document is not a significant rule. The or not to grant the petition; after IBLA decisions into immediate effect. We also Office of Management and Budget has decides, it returns the record to the propose that any party may appeal to not reviewed this rule under Executive Hearings Division in Salt Lake City. In the IBLA an order of an ALJ granting or Order 12866. the meantime, the ALJ to whom the case denying (1) a petition for a stay, or (2) 1. This rule would not have an annual is assigned normally waits to schedule a request to place a decision into economic effect of $100 million or the hearing and to rule on any motions immediate effect. Any party (other than adversely affect an economic sector, concerning the appeal, such as a motion BLM) wishing to appeal an order of an productivity, competition, jobs, the to intervene in the appeal or a motion ALJ denying a petition for a stay or environment, public health or safety, or by BLM to dismiss the appeal. IBLA granting a request to place a decision other units of government. A cost- does not have authority to rule on such into immediate effect may seek judicial benefit and economic analysis is not motions. The same situation applies, but review instead of appealing to IBLA. required. These amended rules would less frequently, to requests to place The proposed rule would revise both have virtually no effect on the economy grazing decisions into immediate effect 43 CFR 4.21, which applies to OHA because they would only add authority under 43 CFR 4.21(a)(1) if BLM has not proceedings generally, and 43 CFR for ALJs to decide petitions for a stay of done so under 43 CFR 4160.3(f). 4.470–4.478, which apply to appeals grazing decisions and to place such This division of responsibility results from BLM grazing decisions. Currently decisions into immediate effect. in delays and inefficiencies that would OHA does not encounter the inefficient 2. This rule would not create be alleviated if the ALJs also had division of responsibility described inconsistencies with or interfere with authority to rule on petitions for a stay above outside the context of grazing other agencies’ actions. The rules and requests to place grazing decisions appeals. However, by revising § 4.21, we propose to amend existing OHA into immediate effect. For example, would eliminate the same inefficiency regulations to add authority for ALJs to IBLA sometimes finds during its should it arise in some other context decide petitions for a stay of grazing consideration of a stay petition that a where the merits of the appeal were decisions and to place such decisions motion to dismiss should be granted. pending before the Hearings Division into immediate effect. However, under the existing regulations, but, under current regulations, a stay 3. This rule would not alter the IBLA cannot grant the motion but must petition must be decided by IBLA. In budgetary effects of entitlements, grants, proceed to decide the stay petition and any case in which the ALJ has user fees, loan programs, or the rights then refer the case, including the motion jurisdiction of the merits, we believe the and obligations of their recipients. to dismiss, back to the Hearings ALJ should be authorized to decide a These regulations have to do only with Division. If the ALJ had authority to rule stay petition or a request to place a the procedures for hearings and appeals on petitions for a stay and requests to bureau decision in immediate effect. By of BLM grazing decisions, not with place decisions into immediate effect, revising § 4.21 as well as § 4.477, we entitlements, grants, user fees, loan he or she could consider any other would be keeping the two sets of programs, or the rights and obligations pending motions at the same time and, provisions consistent. of their recipients. The proposed rule where appropriate, grant a motion to OHA is also proposing to revise the would only add authority for ALJs to dismiss without having to rule on the existing regulatory language to make it decide petitions for a stay of grazing petition or request. Moreover, under the clearer and to conform to Departmental decisions and to place such decisions existing regulations, IBLA must requirements for writing rules in plain into immediate effect. thoroughly review the record in language. See 318 DM 4.2. We propose 4. This rule does not raise novel legal deciding whether to grant a stay to do so by defining terms, creating or policy issues. The rule would simply petition, and the ALJ must then do the more sections, reorganizing the extend ALJs’ existing authority to same in deciding the merits of the case. provisions to put the main ideas first, include the authority to decide petitions This is an unnecessary duplication of and shortening sentences. In 43 CFR for a stay of BLM grazing decisions and effort and takes time away from IBLA’s part 4, subpart B, we propose to revise requests to place such decisions into consideration of other appeals. existing § 4.21, to add new §§ 4.22 immediate effect. By contrast, the regulations governing through 4.26, and to redesignate existing hearings under the Surface Mining §§ 4.22 through 4.31 as §§ 4.27 through B. Regulatory Flexibility Act Control and Reclamation Act of 1977 4.36, respectively. Similarly, in 43 CFR The Department of the Interior authorize an ALJ to consider whether to part 4, subpart E, we would revise certifies that this rule would not have a grant a motion for temporary relief existing § 4.470, add new §§ 4.471 and significant economic effect on a (which is comparable to a petition for a 4.472, and redesignate existing §§ 4.471 substantial number of small entities as stay) and also to decide the merits. IBLA through 4.478 as §§ 4.473 through 4.480, defined under the Regulatory Flexibility gets involved in temporary relief cases respectively. We would add paragraph Act (5 U.S.C. 601 et seq.). The extension only if a party appeals an ALJ’s (c) to newly redesignated § 4.474, and of authority to ALJs to decide petitions
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for a stay of BLM grazing decisions and regulatory action’’ under the Unfunded exclusion’’ as a category of actions that to place such decisions into immediate Mandates Reform Act. the Department has determined effect would have no effect on small ordinarily do not individually or E. Takings (E.O. 12630) entities. A Small Entity Compliance cumulatively have a significant effect on Guide is not required. In accordance with Executive Order the human environment. The 12630, we find that the rule would not regulations further direct each C. Small Business Regulatory have significant takings implications. A department to adopt NEPA procedures, Enforcement Fairness Act takings implication assessment is not including categorical exclusions. 40 This rule is not a major rule under 5 required. These amendments to existing CFR 1507.3. The Department has U.S.C. 804(2), the Small Business rules authorizing ALJs to decide determined that the proposed rule is Regulatory Enforcement Fairness Act. petitions for a stay of BLM grazing categorically excluded from further This rule: decisions and to place such decisions environmental analysis under NEPA in 1. Would not have an annual effect on into immediate effect should have no accordance with 516 DM 2, Appendix 1, the economy of $100 million or more. effect on property rights. which categorically excludes Granting authority to ALJs to decide ‘‘[p]olicies, directives, regulations and F. Federalism (E.O. 13132) petitions for a stay of BLM grazing guidelines of an administrative, decisions and to place such decisions In accordance with Executive Order financial, legal, technical or procedural into immediate effect should have no 13132, we find that the rule does not nature.’’ In addition, the Department has effect on the economy. have sufficient federalism implications determined that none of the exceptions 2. Would not cause a major increase to warrant the preparation of a to categorical exclusions, listed in 516 in costs or prices for consumers, federalism assessment. There is no DM 2, Appendix 2, applies to the individual industries, Federal, State, or foreseeable effect on states from proposed rule. The proposed rule is an local government agencies, or extending to ALJs the existing authority administrative and procedural rule, geographic regions. Granting ALJs to decide petitions for a stay of BLM relating to the authority of ALJs to authority to decide petitions for a stay grazing decisions and to place such decide petitions for stays of BLM of BLM grazing decisions and to place decisions into immediate effect. A grazing decisions and requests to place such decisions into immediate effect federalism assessment is not required. such decisions into immediate effect. would not affect costs or prices for G. Civil Justice Reform (E.O. 12988) The rule would not change the citizens, individual industries, or requirement that projects must comply government agencies. In accordance with Executive Order with NEPA. Therefore, neither an 3. Would not have significant adverse 12988, the Office of the Solicitor has environmental assessment nor an effects on competition, employment, determined that this rule does not environmental impact statement under investment, productivity, innovation, or unduly burden the judicial system and NEPA is required. the ability of U.S.-based enterprises to does not meet the requirements of compete with foreign-based enterprises. sections 3(a) and 3(b)(2) of the Order. J. Government-to-Government Extending authority to ALJs to decide These regulations, because they simply Relationship With Tribes petitions for a stay of BLM grazing extend to ALJs already existing In accordance with the President’s decisions and to place such decisions authority to decide petitions for a stay memorandum of April 29, 1994, into immediate effect should have no of BLM grazing decisions and to place ‘‘Government-to-Government Relations effects, adverse or beneficial, on such decisions into immediate effect, with Native American Tribal competition, employment, investment, will not burden either administrative or Governments’’ (59 FR 22951), E.O. productivity, innovation, or the ability judicial tribunals. 13175, and 512 DM 2, the Department of U.S.-based enterprises to compete H. Paperwork Reduction Act of the Interior has evaluated potential with foreign-based enterprises. effects of these rules on Federally This proposed rule wold not require D. Unfunded Mandates Reform Act recognized Indian tribes and has an information collection from 10 or determined that there are no potential In accordance with the Unfunded more parties, and a submission under effects. These rules would not affect Mandates Reform Act (2 U.S.C. 1531 et the Paperwork Reduction Act is not Indian trust resources; they would seq.), we find that: required. An OMB form 83–I has not provide authority to ALJs to decide 1. This rule would not have a been prepared and has not been petitions for a stay of BLM grazing significant or unique effect on state, approved by the Office of Policy decisions and to place such decisions local, or tribal governments or the Analysis. These regulations would only into immediate effect. private sector. Small governments do extend authority to ALJs to decide not often appeal BLM grazing decisions. petitions for stay of BLM grazing K. Effects on the Nation’s Energy Supply Authorizing ALJs to decide petitions for decisions and to place such decisions In accordance with Executive Order a stay of such decisions and to place into immediate effect; they would not 13211, we find that this regulation does such decisions into immediate effect require the public to provide not have a significant effect on the would neither uniquely nor information. nation’s energy supply, distribution, or significantly affect these governments use. The extension of authority to ALJs I. National Environmental Policy Act because such authority currently exists to decide petitions for a stay of BLM elsewhere. A statement containing the The Department has analyzed this grazing decisions and to place such information required by the Unfunded rule in accordance with the National decisions into immediate effect would Mandates Reform Act, 2 U.S.C. 1531 et Environmental Policy Act of 1969 not affect energy supply or seq., is not required. (NEPA), 42 U.S.C. 4321 et seq., Council consumption. 2. This rule would not produce an on Environmental Quality (CEQ) unfunded Federal mandate of $100 regulations, 40 CFR part 1500, and the L. Clarity of This Regulation million or more on State, local, or tribal Department of the Interior Departmental Executive Order 12866 requires each governments or the private sector in any Manual (DM). CEQ regulations, at 40 agency to write regulations that are easy year, i.e., it is not a ‘‘significant CFR 1508.4, define a ‘‘categorical to understand, including answers to the
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following: (1) Are the requirements in For the reasons set forth in the § 4.21 Definitions of terms used in this the rule clearly stated? (2) Does the rule preamble, under authority delegated to subpart. contain technical language or jargon that the Director, Office of Hearings and As used in this subpart: interferes with its clarity? (3) Does the Appeals, by the Secretary of the Interior, Appropriate official means the format of the rule (grouping and order part 4, subparts B and E, of title 43 of Director of the Office of Hearings and of sections, use of headings, the Code of Federal Regulations are Appeals, an Appeals Board, or an paragraphing, etc.) aid or reduce its proposed to be amended as set forth administrative law judge, as applicable clarity? (4) Would the rule be easier to below: in a particular situation. understand if it were divided into more Bureau means a bureau or office of the (but shorter) sections? (A ‘‘section’’ Dated: May 13, 2003. Department of the Interior. appears in bold type and is preceded by Robert S. More, Days means calendar days unless the symbol ‘‘§ ’’ and a numbered Director, Office of Hearings and Appeals. otherwise stated. heading; for example, § 4.21 General Decision means a written provisions.) (5) Is the description of the PART 4—[AMENDED] determination or, if applicable, a rule in the SUPPLEMENTARY INFORMATION portion of a written determination. section of the preamble helpful in 1. The authority for 43 CFR part 4 understanding the proposed rule? (6) continues to read as follows: § 4.22 Effect of a decision pending appeal. What else could we do to make the rule Authority: R.S. 2478, as amended, 43 (a) The provisions of this section easier to understand? U.S.C. sec. 1201, unless otherwise noted. apply to any decision by a bureau that Send a copy of any comments that includes a right of appeal to the Office concern how we could make this rule Subpart B—General Rules Relating to of Hearings and Appeals, unless a law easier to understand to: Office of Procedures and Practice or other applicable regulation provides Regulatory Affairs, Department of the otherwise. Interior, Room 7229, 1849 C Street, §§ 4.22 through 4.31 [Redesignated as (b) No such bureau decision is NW., Washington, DC 20240. You may §§ 4.27 through 4.36]. effective during the period of time allowed for filing an appeal, unless it is also e-mail the comments to this 2. Sections 4.22 through 4.31 are made immediately effective under address: [email protected]. redesignated as §§ 4.27 through 4.36. paragraph (c)(2) of this section. List of Subjects in 43 CFR Part 4 3. Section 4.21 is revised and new (c) A bureau decision becomes Administrative practice and §§ 4.22 through 4.26 are added to read effective as shown in the following procedure; Grazing lands; Public lands. as follows: table:
If . . . And . . . Then . . .
(1) A statute or other regulation provides that a person who has a right of appeal files a no- the bureau decision will become effective if the bureau decision will not take effect pend- tice of appeal, and when it is affirmed by the Office of ing a decision on an appeal, Hearings and Appeals or the appeal is dis- missed. (2) A person who has a right of appeal under a party to the appeal demonstrates that the the appropriate official (see § 4.21) may pro- § 4.410 or other applicable regulation files a public interest requires making the bureau vide that the bureau decision becomes ef- timely notice of appeal, decision effective immediately, fective immediately. (3) A person who has a right of appeal under the appellant satisfies the requirements of the appropriation official may stay the effect of § 4.410 or other applicable regulation files a § 4.23, the bureau decision under § 4.24, and the timely notice of appeal and a petition for a bureau decision will become effective if and stay, when it is affirmed by the Office of Hearings and Appeals or the appeal is dismissed. (4) A person who has a right of appeal under the appellant does not satisfy the require- the bureau decision becomes effective when § 4.410 or other applicable regulation files a ments of § 4.23, the appropriate official denies the petition. timely notice of appeal and a petition for a stay, (5) A person who has a right of appeal under the appropriate official does not act on peti- the decision becomes effective on the 46th § 4.410 or other applicable regulation files a tion within 45 days of the end of the appeal day after the end of the appeal period. timely notice of appeal and a petition for a period, stay,
§ 4.23 How to petition for a stay of the (1) Be a person who has a right of (iv) Whether the public interest favors effective date of a decision. appeal under § 4.410 or other applicable granting the stay. (a) To request a stay of a bureau regulation; and (c) The appellant must serve a copy of decision, an appellant must file a notice (2) Demonstrate that the appropriate the notice of appeal and petition for a of appeal and a petition for a stay as official should grant a stay based on the stay on each of the following required under paragraphs (b) and (c) of following standards: simultaneously: this section. The appellant must file (i) The relative harm to the parties if these documents before the end of the (1) The appropriate official before the stay is granted or denied; appeal period specified in the bureau whom the appeal is pending; decision. The provisions of this section (ii) The likelihood of the appellant’s (2) The bureau official who made the apply unless a law or other applicable success on the merits; decision being appealed; and regulation provides otherwise. (iii) The likelihood of immediate and (3) Each party, if any, named in the (b) To obtain a stay under this section, irreparable harm if the appropriate bureau decision that is being appealed. an appellant must: official does not grant the stay; and
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§ 4.24 Action on a petition for a stay. Board may reconsider a decision if at the hearing unless permitted to do so (a) Any party who is served with a either: by the administrative law judge. copy of a stay petition under § 4.23(c) (1) In the judgment of the Director or (d) Any person who, after proper may file a response but must do so the Appeals Board there exist notification, does not appeal a final within 10 days after service. This extraordinary circumstances and BLM decision within the period allowed includes the bureau official who made sufficient reason for reconsideration; or in the decision may not later challenge the decision being appealed. (2) Other regulations allow for the matters adjudicated in the final (1) The responding party must serve reconsideration under standards other decision. the response on the persons listed in than those set forth in paragraph (a)(1) (e) An administrative law judge may § 4.23(c) either by delivering it of this section. consolidate appeals for purposes of personally or by registered or certified (b) To request reconsideration under hearing and decision when: mail, return receipt requested. paragraph (a) of this section, an (1) Appellants file separate appeals; (2) The appropriate official will not appellant must: and grant a stay by default merely because (1) File the request promptly, or (2) The issues involved are common no response to a petition has been filed. within the time required by the to two or more appeals. (b) Within 45 days after the end of the regulations relating to the type of (f) Filing a notice of appeal does not time for filing an appeal, the appropriate proceeding concerned; and by itself change the effective date of the official must grant or deny any petition (2) State clearly and completely the decision. To request a change in the for a stay. nature of the error prompting the effective date, see § 4.471. (c) Any person who has a right of request for reconsideration. § 4.471 How to request a change in the appeal under § 4.410 or other applicable (c) Filing a request for reconsideration effective date of a final BLM decision. regulation may appeal to the does not stay the effectiveness of the (a) An appellant under § 4.470 may appropriate Appeals Board from an decision unless the Director or the petition for a stay of the BLM decision order of an administrative law judge to: Appeals Board so orders. pending appeal. The appellant must do (1) Grant or deny a petition for a stay; (d) An appellant does not have to file this within 30 days after receiving the or a request for reconsideration in order to BLM decision by filing a petition for (2) Make a bureau decision effective exhaust administrative remedies. stay together with the notice of appeal immediately. Subpart E—Special Rules Applicable required by § 4.470. (d) As an alternative to paragraph (c) (b) An appellant under § 4.470 may to Public Land Hearings and Appeals of this section, any party other than the request that a BLM decision become bureau may seek judicial review under 4. The authority for 43 CFR part 4, effective immediately. The appellant 5 U.S.C. 704 of an order of an subpart E is revised to read as follows: must do this within 30 days after administrative law judge to: Authority: 43 U.S.C. 1201 and 315a. receiving the BLM decision by filing a (1) Deny a petition for a stay (either request for an immediate effective date directly or by failing to meet the 5. In § 4.421, revise paragraph (c) to together with the notice of appeal deadline in paragraph (b) of this read as follows: required by § 4.470. section); or § 4.421 Definitions. (c) The appellant must file documents (2) Make a bureau decision effective required by this section with both: immediately. * * * * * (1) The BLM office that issued the (e) If a party appeals under paragraph (c) Bureau or BLM means the Bureau decision; and (c) of this section, the Appeals Board of Land Management. (2) The Hearings Division, Office of must issue an expedited briefing * * * * * Hearings and Appeals, 801 North schedule and expeditiously issue a Quincy Street, Suite 300, Arlington, VA decision on the appeal. §§ 4.471 through 4.478 [Redesignated as 22203. (f) Unless the Appeals Board or the §§ 4.473 through 4.480]. (d) The standards and procedures for court orders otherwise, an appeal under 6. Sections 4.471 through 4.478 are obtaining a stay or requesting an paragraph (c) of this section does not: redesignated as §§ 4.473 through 4.480, immediate effective date are those set (1) Suspend the effectiveness of the respectively. forth in §§ 4.22 through 4.24. decision of the administrative law 7. Section 4.470 is revised and judge; or §§ 4.471 and 4.472 are added to read as § 4.472 Action on appeals and requests for (2) Suspend further proceedings follows: effective date changes. before the administrative law judge. (a) The BLM field office must § 4.470 How to appeal a BLM decision to promptly forward to the State Director § 4.25 Decisions subject to judicial review. an administrative law judge. any documents received under §§ 4.470 This section applies to any bureau (a) Any person who has a right of and 4.471. If the State Director does not decision that can be appealed to the appeal under § 4.410 or other applicable file a motion to dismiss under paragraph Office of Hearings and Appeals. The regulation may appeal a final bureau (b) of this section: bureau decision is not final agency decision within 30 days after receiving (1) The State Director must promptly action subject to judicial review under it. To do this, the person must file a forward all documents and the 5 U.S.C. 704 unless it has become notice of appeal with the BLM field administrative record to the Office of effective under § 4.22 or other office that issued the decision. Hearings and Appeals; and applicable regulation. (b) The notice of appeal must state (2) An administrative law judge will clearly and concisely the reasons why rule on the appeal and any motion or § 4.26 Finality and reconsideration of the appellant thinks the BLM decision request. decisions. is wrong. (b) Within 30 days after receiving (a) A decision by the Director or an (c) Any ground for appeal not documents submitted under paragraph Appeals Board is final for the included in the notice of appeal is (a) of this section, the State Director may Department and cannot be appealed. considered waived. The appellant may file a motion to dismiss the appeal for However, the Director or an Appeals not present a waived ground for appeal one or more of the following reasons:
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(1) The appeal is frivolous; immediately pending decision on an Davidson, 2134 Oak Street, Unit C, (2) The appeal was filed late; appeal from the BLM decision. This Santa Monica, CA 90405. paragraph applies: (3) The errors are not clearly and FOR FURTHER INFORMATION CONTACT: concisely stated; (1) Notwithstanding the provisions of Rolanda F. Smith, Media Bureau, (202) (4) The issues are immaterial; or § 4.22(b) pertaining to the period during 418–2180. (5) The issues have been previously which a final decision will not be in SUPPLEMENTARY INFORMATION: adjudicated in an appeal involving the effect; and This is a same grazing preference, the same (2) Consistent with the provisions of summary of the Commission’s Notice of parties, or their predecessors in interest. § 4160.3. Proposed Rule Making, MB Docket No. 03–111, adopted April 30, 2003, and (c) The State Director must send a (b) An administrative law judge or the released May 5, 2003. The full text of copy of the motion to the appellant. Board may change or revoke any action this Commission decision is available (d) The appellant may file a written that BLM takes pursuant to a BLM decision on appeal. for inspection and copying during answer with the State Director within 30 normal business hours in the days after receiving the motion to (c) This paragraph applies to any BLM decision that, at the time it is made, is Commission’s Reference Center 445 dismiss. Twelfth Street, SW., Washington, DC (e) The State Director will transmit subject to appeal before a superior authority in the Department. In order to 20554. The complete text of this the appeal, any petition or request, decision may also be purchased from motion to dismiss, and answer, along ensure the exhaustion of administrative remedies before resort to court action, the Commission’s duplicating with the administrative record, to the contractor, Qualex International Portals Hearings Division, Office of Hearings the BLM decision is not final agency action subject to judicial review under II, 445 12th Street, SW., Room CY–B402, and Appeals, 801 North Quincy Street, Washington, DC 20554, telephone 202– Suite 300, Arlington, VA 22203. 5 U.S.C. 704 unless the BLM decision has become effective under this section 863–2893, facsimile 202–863–2898, or (f) An administrative law judge will via e-mail [email protected]. rule on the motion to dismiss and, if the or § 4.22. Provisions of the Regulatory motion is sustained, dismiss the appeal [FR Doc. 03–12504 Filed 5–21–03; 8:45 am] Flexibility Act of 1980 do not apply to by written order. BILLING CODE 4310–79–P this proceeding. 8. In newly redesignated § 4.474, add paragraph (c) to read as follows: Members of the public should note that from the time a Notice of Proposed § 4.474 Authority of administrative law FEDERAL COMMUNICATIONS Rule Making is issued until the matter judge. COMMISSION is no longer subject to Commission consideration or court review, all ex * * * * * 47 CFR Part 73 (c) The administrative law judge may parte contacts are prohibited in consider and rule on all motions and [DA 03–1473, MB Docket No. 03–111, RM– Commission proceedings, such as this petitions, including: 10701] one, which involve channel allotments. (1) A petition for a stay of a final See 47 CFR 1.1204(b) for rules Radio Broadcasting Services; grazing decision of the BLM field office; governing permissible ex parte contact. Kernville, CA and For information regarding proper (2) A request that a final grazing AGENCY: Federal Communications filing procedures for comments, see 47 decision of the BLM field office become Commission. CFR 1.415 and 1.420. effective immediately. ACTION: Proposed rule. List of Subjects in 47 CFR Part 73 9. Revise newly redesignated § 4.478 to read as follows: SUMMARY: This document requests Radio, Radio broadcasting. § 4.478 Appeals to the Board of Land comments on a petition filed by Linda For the reasons discussed in the Appeals. A. Davidson proposing the allotment of preamble, the Federal Communications Channel 289A at Kernville, CA, as that (a) A person who has a right of appeal Commission proposes to amend 47 CFR community’s second local service. part 73 as follows: under § 4.410 or other applicable Channel 289A can be allotted to regulation may appeal under § 4.24(c) Kernville, consistent with the minimum PART 73—RADIO BROADCAST an order of an administrative law judge distance separation requirements of the SERVICES to: Commission’s Rules, provided there is a (1) Grant or deny a petition for a stay; site restriction of 5.6 kilometers (3.5 1. The authority citation for part 73 or miles) northeast of the community. The continues to read as follows: (2) Make a final grazing decision reference coordinates for Channel 289A Authority: 47 U.S.C. 154, 303, 334 and 336. effective immediately. at Kernville are 35–46–29 North (b) Any party affected by the Latitude and 118–22–09 West § 73.202 [Amended] administrative law judge’s decision on Longitude. 2. Section 73.202(b), the Table of FM the merits, including the State Director, Allotments under California, is has the right to appeal to the Board of DATES: Comments must be filed on or before June 26, 2003, and reply amended by adding Channel 289A at Land Appeals under the procedures in Kernville. this part. comments on or before July 11, 2003. 10. Revise newly redesignated § 4.479 ADDRESSES: Federal Communications Federal Communications Commission. to read as follows: Commission, 445 Twelfth Street, SW., John A. Karousos, Washington, DC 20554. In addition to Assistant Chief, Audio Division, Media § 4.479 Effect of decision during appeal. filing comments with the FCC, Bureau. (a) A BLM decision may provide that interested parties should serve the [FR Doc. 03–12793 Filed 5–21–03; 8:45 am] the decision will be effective petitioner, as follows: Linda A. BILLING CODE 6712–01–P
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FEDERAL COMMUNICATIONS DEPARTMENT OF THE INTERIOR Background COMMISSION Frankenia johnstonii (Correll) was Fish and Wildlife Service first collected in 1966 in Zapata County, 47 CFR Part 73 Texas, by Dr. D. S. Correll who later 50 CFR Part 17 named the species in honor of Dr. M. C. [DA 03–1474; MM Docket No. 01–169; RM– Johnston (Correll 1966). Frankenia 10145] RIN 1018–AH53 johnstonii is a low, somewhat sprawling, perennial shrub, in the Radio Broadcasting Services; Danville Endangered and Threatened Wildlife Frankeniaceae Family. Mature plants & Nonesuch, KY and Plants; Delisting the Plant are approximately 30 centimeters (cm) Frankenia johnstonii (Johnston’s (12 inches (in)) in height, 30 to 60 cm AGENCY: Federal Communications frankenia) and Notice of Petition (12 to 24 in) wide, and rounded or Commission. Finding sphere-shaped in appearance. This ACTION: Proposed rule; denial. AGENCY: Fish and Wildlife Service, spineless subshrub has a woody, trunk- Interior. like stem which gives rise to several-to- many ascending or recurved (bent or SUMMARY: Action in this document ACTION: Proposed rule. curved downward or backward) denies a petition for rule making filed herbaceous stems. The entire plant may by Clear Channel Broadcasting Licenses, SUMMARY: We, the U.S. Fish and be grayish-green or bluish-green in color Inc., requesting the reallotment of Wildlife Service (Service), announce a most of the year, turning crimson red in Channel 296A from Danville, Kentucky proposal to remove the plant Frankenia late fall when it is easily detected to Nonesuch, Kentucky, and johnstonii (Johnston’s frankenia) from among its surrounding deciduous modification of the license for Station the List of Endangered and Threatened neighbors. This color change can also be WHIR–FM to specify operation on Wildlife and Plants under the brought on by severe drought conditions Channel 296A at Nonesuch. See 66 FR Endangered Species Act of 1973, as (Janssen and Williamson 1994). The 41489, August 8, 2001. Based on the amended (Act). This species is endemic gray-green leaf surfaces are haired, with information provided by Clear Channel to three counties in south Texas and an salt crystals frequently visible on the Broadcasting Licenses, Inc., we believe adjacent area in northeastern Mexico. underside of the leaves. Leaf margins it has failed to establish that Nonesuch Due to an expansion of our knowledge are somewhat rolled or turned under. qualifies as a community for allotment of the species’ known range, the number Flowers are small, with five slightly purposes and therefore it would not of newly discovered populations, some fringed or toothed white petals and a serve the public interest to reallot with large numbers of individual plants, distinct yellow center. Flowering occurs Channel 296A from Danville to increased knowledge of the life history from April to November, especially Nonesuch, Kentucky. With this action, requirements of this species, and when stimulated by rainfall events clarification of the degree of threats to this proceeding is terminated. (Janssen and Williamson 1994). its continued existence, we have Frankenia johnstonii generally grows FOR FURTHER INFORMATION CONTACT: determined that Johnston’s frankenia is on open or sparsely vegetated, rocky, Kathleen Scheuerle, Media Bureau, not in danger of extinction throughout gypseous hillsides or saline flats. In (202) 418–2180. all or a significant portion of its range Texas, this species is endemic to Webb, now or within the foreseeable future. SUPPLEMENTARY INFORMATION: This is a Zapata and Starr Counties, where it This proposed rule also constitutes our occurs within the mesquite-blackbrush synopsis of the Commission’s Report 90-day and 12-month finding for the and Order, MM Docket No. 01–169, community encompassed in the South petition to delist Frankenia johnstonii. Texas Plains vegetation zone as adopted April 30, 2003, and released described by McMahan (et al. 1984). May 5, 2003. The full text of this DATES: We will consider comments on this proposal if they are received by Frankenia johnstonii populations have a Commission decision is available for clumped distribution, occurring in inspection and copying during normal August 20, 2003. Public hearing requests must be received by July 7, openings of the Tamaulipan thornscrub business hours in the FCC’s Reference 2003. where the plant thrives in a high light Information Center at Portals II, 44512th intensity setting. Populations of this Street, SW., Room CY–A257, ADDRESSES: Written comments and species appear to be restricted to Washington, DC 20554. The document materials concerning this proposal pockets of hyper-saline soil, analysis of may also be purchased from the should be sent to: Field Supervisor, which shows salinity and sodium Commission’s duplicating contractor, Ecological Services Field Office, U.S. content that is approximately 10 times Qualex International, Portals II, 445 Fish and Wildlife Service, c/o TAMU– greater than that found in soils 12th Street, SW., Room CY–B402, CC, Campus Box 338, 6300 Ocean Drive, occurring outside the populations Washington, DC 20554, telephone: 202 Corpus Christi, Texas 78412. The (Janssen and Williamson 1994). The 863–2893, facsimile: 202 863–2898, or proposal, supporting data, and population in Mexico occurs in the via e-mail [email protected]. comments are available for public transition zone between the Tamaulipan inspection, by appointment, during Federal Communications Commission. Scrub and the Chihuahuan Desert normal business hours at the above (Whalen 1980). John A. Karousos, address. Frankenia johnstonii was listed Assistant Chief, Audio Division, Media August 7, 1984 (49 FR 31418), as an Bureau. FOR FURTHER INFORMATION CONTACT: Robyn Cobb, U.S. Fish and Wildlife endangered species under the Act. [FR Doc. 03–12794 Filed 5–21–03; 8:45 am] Service, at the above address, or Critical habitat was never designated for BILLING CODE 6712–01–P telephone 361–994–9005 or e-mail to this species. The Johnston’s Frankenia [email protected]. (Frankenia johnstonii) Recovery Plan, completed in 1988, did not quantify SUPPLEMENTARY INFORMATION: criteria for down-listing or delisting due
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to a lack of basic knowledge about the populations are known from Mexico. the U.S. and 4 in Mexico (Janssen 1999). species (USFWS 1988). Instead the Three of the four populations in Mexico Four of the 62 total populations recovery plan concentrated on the major are in relatively close proximity to one reported by Janssen (1999) were part of actions believed necessary to recover another along Highway 53 in the State the 7 populations referenced in the Frankenia johnstonii. These actions of Nuevo Leon, while the fourth recovery plan. The results of this recent included maintenance of known population location extends the species’ status survey have dramatically populations through landowner range north-northeast to the vicinity of increased the known numbers of cooperation and habitat management, Nuevo Laredo in western Tamaulipas individual plants, from approximately provision of permanent Service or (Janssen 1999). 1,500 at the time of listing to greater conservation group protection of at least Frankenia johnstonii was first than 9 million by 1999. The TPWD one site, establishment of populations in collected by Dr. D. S. Correll in 1966 in status survey resulted in an expansion botanical gardens, obtaining biological Zapata County, Texas, about 40 km (25 of the species’ known range to the information needed to effectively mi) northeast of San Ygnacio, and soon northwest, east and south in Texas, and manage the species, and developing thereafter at a second site in Starr to the north of the previously known public support for the preservation of County, just east of El Sauz (Correll and location in Mexico (Janssen 1999). the species. Among the potential threats Johnston 1970). The continued All 58 U.S. populations of Frankenia to Frankenia johnstonii identified in the existence of Frankenia johnstonii at johnstonii identified in Janssen’s 1999 recovery plan were habitat modification Correll’s first site was confirmed by report occur primarily on private land, by land management practices that Poole in 1986, and the population at the but a portion of one population in Starr included overgrazing, blading, and second site was revisited by Poole, County is located on a Lower Rio bulldozing. The recovery plan also Turner, and Whalen at various times Grande Valley National Wildlife Refuge recognized the risk of population losses (USFWS 1988). The species was also (LRGVNWR) tract. A second population found in 1966 by A. D. Wood in the from intensive land uses and non- occurs, partially, in the Texas hills northeast of Roma, Starr County specific habitat alterations, including a Department of Transportation’s (TDOT) (USFWS 1988). In 1967, Correll found a variety of construction activities. The Highway 83 right-of-way in Zapata second Zapata County population about low reproductive potential of this County. A third population, found 8 km (5 mi) south of Zapata. Although species was considered another threat to growing on three private ranches in Whalen was unable to relocate the Roma its continued existence since the western Zapata County, also extends population during her doctoral research, restricted number of individual plants onto land below the 307-foot elevation she did relocate Correll’s second Zapata was thought to imply a small gene pool mark adjacent to Falcon Reservoir. All County population (USFWS 1988). with limited variability, thereby property below this elevation mark is Collectors James Everitt and R. J. potentially diminishing the species’ controlled by the International ability to tolerate stress and threats Fleetwood found Frankenia johnstonii at a site approximately 21 km (13 mi) Boundary and Water Commission (USFWS 1988). Since 1993, intensive (IBWC). A fourth population, also in surveys in Webb, Zapata, and Starr north of Roma, Starr County, in 1974. Four different investigators had close proximity to Falcon Reservoir, Counties in South Texas, as well as may also be on IBWC-controlled land additional information from Mexico revisited this population by 1986 (USFWS 1988). In 1971, Turner but Janssen was unable to determine have shown this species to be more identified what he considered to be a exact land ownership for this widespread and abundant than was new species of Frankenia from a population (Janssen 1999). previously known (Janssen 1999). location 100 km (62 mi) northwest of Using Pavlik’s suggested method of At the time it was listed, Frankenia Monterrey, Mexico, and named it deriving an estimated minimum viable johnstonii was known from only four Frankenia leverichii (Turner 1973). population size (MVP) (Pavlik 1996), we sites in Texas, two each in Zapata and Whalen later studied specimens from calculated that approximately 2,000 Starr Counties, and from one locality in this population as part of her doctoral individual plants may constitute a Mexico. When the recovery plan for this research on the genus Frankenia and conservative estimate for a Frankenia species was finalized in 1988, seven concluded that it was not distinct from johnstonii MVP. We used this estimated populations (including the original five) Frankenia johnstonii (Whalen 1980), MVP to evaluate the distribution of had been identified, all occurring on thus this was the single Mexican known Frankenia johnstonii private land. At that time, the six Texas population referenced in the listing rule populations in relation to threats to populations were encompassed within a and the recovery plan. those sites. Table 1 displays the 56-kilometer (km) (35-mile (mi)) radius, An intensive status survey and study numbers of small, intermediate-sized, with the population in Mexico located of ecological and biological and large populations in each Texas approximately 201 km (125 mi) to the characteristics of Frankenia johnstonii county and in Mexico, grouped with the west. Since 1988, the discovery of new was conducted by Texas Parks and smallest populations numbering below populations has extended the species’ Wildlife Department (TPWD) botanist the calculated MVP, the intermediate- range to north and west of Laredo in Gena Janssen between 1993 and 1999. sized populations containing between Webb County, farther east in Zapata The final report for this 6-year study 2,000 to 5,000 plants, and the largest County, and farther south in Starr contained documentation for 58 populations consisting of greater than County. Currently a total of four populations of Frankenia johnstonii in 5,000 individuals.
TABLE 1.—NUMBER AND LOCATION OF SMALL, INTERMEDIATE-SIZED AND LARGE FRANKENIA JOHNSTONII POPULATIONS
Starr Coun- Zapata Webb Number of individual plants ty, TX County, TX County, TX Mexico
Less than 2,000 ...... 5 16 1 1 Between 2,000 and 5,000 ...... 1 6 2 1 Greater than 5,000 ...... 1 13 40
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TABLE 1.—NUMBER AND LOCATION OF SMALL, INTERMEDIATE-SIZED AND LARGE FRANKENIA JOHNSTONII POPULATIONS— Continued
Starr Coun- Zapata Webb Number of individual plants ty, TX County, TX County, TX Mexico
Unknown # of plants ...... 9 0 0 2
Total number of Populations ...... 16 35 7 4
Of the 7 Frankenia johnstonii may be correlated with an extensive environment in which it is a dominant populations confirmed in Webb County, landowner outreach campaign vegetative component. This plant is a 4 have greater than 5,000 individual conducted by TPWD (Janssen 1996, halophytic (salt-loving) perennial, plants, and 1 of the 4 is described as 1999). In some cases in Zapata County, suited to life in hyper-saline soils in containing ‘‘hundreds of thousands of there was high potential for the which the elevated salinity and sodium plants’’ (Janssen 1999). Two of the 7 presence of additional populations on levels are likely to exclude buffelgrass, populations consist of between 2,000 land that adjoined ranches with known the grass species that is most frequently and 5,000 plants, and 1 has less than populations, however permission to planted for pasture improvement 2,000 plants. access these areas was not attainable, purposes in Webb, Zapata, and Starr Thirty-five Frankenia johnstonii therefore presence/absence could not be Counties (John Lloyd-Reilley, U.S. populations are documented in Zapata confirmed. Landowner contacts were Department of Agriculture, Natural County, 13 of which have greater than not as readily available for Starr and Resource Conservation Service, pers. 5,000 plants, with several of the 13 Webb Counties, and additional comm. 2001). In fact, Frankenia composed of more than a million population locations are possible in johnstonii is the dominant woody individuals (Janssen 1999). Six of the 35 those counties. In Mexico, the level of species within the plant community populations have between 2,000 and effort to survey for Frankenia johnstonii where it is found (Janssen 1999). 5,000 plants, and 16 have less than has been limited. It is probable that Mechanical and chemical brush- 2,000 plants. populations remain undiscovered clearing practices that are commonly For the 16 Frankenia johnstonii throughout suitable habitat in all three used prior to planting pasture grasses populations reported from Starr County, Texas counties, with the highest can, however, adversely impact only 7 were confirmed by Janssen’s site potential in Zapata County, and in Frankenia johnstonii populations or visits (Janssen 1999). One of the 16 had Mexico (Janssen, pers. comm. 2001). portions thereof by uprooting or approximately 10,000 plants, 1 had Although only locality data has been damaging plants. In order to address approximately 2,000 plants, and 5 had documented thus far for plants in the conservation concerns associated with less than 2,000 plants. For the 9 Starr nine Starr County populations, further land management practices, TPWD County populations not visited by the assessment of these plants (such as their conducted an extensive endangered and TPWD principal investigator, locality numbers and condition) is a possibility rare species education and outreach information was provided by another in the future. campaign in Webb, Zapata, and Starr biologist who furnished no data on At the time of listing, we considered Counties that encompassed activities numbers of individuals or condition of Frankenia johnstonii to be vulnerable to such as landowner meetings, the plants (Janssen 1999). extinction due to the following: (1) The coordination with the U.S. Department A total of 5,600 individual plants low number and restricted distribution of Agriculture’s (USDA) Natural were estimated from two of the four of populations; (2) low numbers of Resource Conservation Service (NRCS), Mexican Frankenia johnstonii individual plants; (3) threats to the county fair exhibits, development of populations. Although the individual integrity of the species’ habitat such as printed information, and school plant numbers are not available for the clearing and planting to improve presentations. This campaign promoted remaining two populations, one was pasture species, including introduced conservation of Frankenia johnstonii, in described by a Mexican botanist as grasses; and (4) direct loss from part by sharing the results of Janssen’s being ‘‘Abundante!’’ (Janssen 1999). construction associated with highways, field studies on the ecology and biology In Texas, approximately 80% of residential development, and oil- and of this species. In October 2000, a potential habitat has been surveyed for natural gas-related activities; and (5) the presentation was made to NRCS District Frankenia johnstonii (Gena Janssen, species’ low reproductive potential. Conservationists from Webb, Zapata, Janssen Biological, pers. comm. 2001). The intensive survey effort by TPWD and Starr Counties to emphasize their Landowner permission for access was in South Texas has shown Frankenia agency’s role in helping landowners one of the primary factors affecting the johnstonii to be much more widespread identify and avoid impacts to Frankenia extent of potential habitat covered by and abundant than was known at the johnstonii population sites, especially in surveys, since parts of all populations time of listing or when the recovery light of the futility of converting the located to date occur on privately plan was prepared. Initial fears land on these hyper-saline sites to owned land. Within Texas, a greater regarding the species’ vulnerability to pastures of buffelgrass. The inability of extent of suitable habitat, defined by the competition from exotic plant species buffelgrass to tolerate the high soil presence of the correct types of soils, such as buffelgrass (Pennisetum ciliare) salinities typically found at Frankenia exists in Zapata County rather than in have been alleviated by the results of johnstonii sites results in the failure of the neighboring Starr or Webb Counties biological and ecological research on grass plantings to thrive, the associated (Janssen, pers. comm. 2000). Zapata was this species. Analysis of data collected loss of time, energy, and money in the county most intensively surveyed by for soils, structural characteristics, and trying to establish the grass, and an Janssen between 1993 and 1996, and the composition of the surrounding plant increased potential for soil erosion since relatively higher numbers of landowners community show Frankenia johnstonii the site is left without vegetative cover willing to grant access in this county to be well adapted to the harsh (Janssen 1999).
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In a further effort to promote thereby helping companies to avoid johnstonii as an endangered species was conservation of populations occurring Frankenia johnstonii, but no companies published August 7, 1984 (49 FR on private land, TPWD initiated a have signed any type of agreements to 31418). The Johnston’s Frankenia voluntary conservation agreement in date. However, the landowner Recovery Plan was completed in 1988 1995 that was designed to protect conservation agreements include (USFWS 1988). Frankenia johnstonii from mechanical provisions for landowners to contact Federal involvement with Frankenia and chemical habitat alteration and TPWD whenever damage, including that johnstonii subsequent to listing has overstocking of cattle. These agreements caused by oil and gas activities, included funding for activities such as have been signed by 10 landowners accidentally occurs or is anticipated so surveys for new locations, monitoring of controlling 19 of the largest populations that TPWD can inspect populations and known and new populations, and and will endure for 10 years from the make recommendations for avoidance or collection and analysis of ecological and date of signature (Janssen 1999). recovery. biological data. A GIS-based approach Protection for Frankenia johnstonii on Rare species can be vulnerable to for analyzing threats to the continued public land is assured for the portion of reproductive failure, and low existence of the species was contracted the one population that extends onto a reproductive potential was considered a by us to Southwest Texas State Lower Rio Grande Valley National potential threat to Frankenia johnstonii University (Shelley and Pulich 2000). Wildlife Refuge tract. The refuge (Turner 1980, USFWS 1988). Among the The species has been included in all monitors the status of these plants and factors that can contribute to the risk of informal section 7 consultations over considers protection of that part of the reproductive failure in plants are high Federal projects occurring in suitable population whenever activities are dependence on specialized pollinators, habitat in Starr and Zapata Counties, being planned for that tract. At the absence of back-up reproductive and more recently in Webb County, TDOT’s Highway 83 right-of-way mechanisms such as self-fertilization Texas, as new populations were population site, installation of reflector and vegetative reproduction, and poor delimited. This species has not been stakes is used to protect the plants from ability to compete for pollinators included in any formal consultations. mowing and from Border Patrol (Janssen 1999). The results of On February 8, 1997, we received a maintenance activities (Janssen, pers. reproductive biology studies for petition dated February 3, 1997, from comm. 2001). Frankenia johnstonii, as reported in the National Wilderness Institute. The We used a Geographic Information Janssen and Williamson (1996) and petitioner requested that the Service System (GIS)-based analysis of the Janssen (1999), show that this species is remove Frankenia johnstonii from the distribution of Frankenia johnstonii a generalist rather than a specialist with List of Endangered and Threatened populations in relation to locations of regard to insect pollinators, hosting a Wildlife and Plants on the basis of existing and proposed highways, and variety of bees and flies. This reduces original data error. We were not able to residential developments (Shelley and the danger associated with declines in act on this petition upon receipt due to Pulich 2000), to pinpoint the U.S. any specific pollinator species. The high the low priority assigned to delisting populations most likely to be threatened rates of floral visitation at Frankenia activities in our Fiscal Year 1997 Listing by these types of activities, as well as johnstonii by these insects shows the Priority Guidance which was published those populations furthest removed plant to be competing successfully for in the Federal Register on December 5, from them. The results of this analysis pollinators, and it is readily cross 1996 (61 FR 64475). That guidance showed that 18 of the intermediate- pollinated (Janssen 1999). clarified the order in which the Service sized and largest populations remain in would process rulemakings following remote locations on rangeland, where Previous Federal Action two related events—(1) the lifting on threats from road and residential Federal government actions on this April 26, 1996, of the moratorium on construction activities are diminished species began with section 12 of the Act, final listings imposed on April 10, 1995 (Janssen 1999, Shelley and Pulich 2000). which directed the Secretary of the (Pub. L. 104–6), and (2) the restoration Portions of 10 of the intermediate-sized Smithsonian Institution to prepare a of significant funding for listing through and largest populations occur within 1 report on those plants considered to be the passage of the omnibus budget mile of State Highway 83, State endangered, threatened, or extinct. This reconciliation law on April 26, 1996, Highway 16, or State Highway 359, 3 of report (House Document No. 94–51), following severe funding constraints the main transportation arteries in this which included Frankenia johnstonii in imposed by a number of continuing region. the endangered category, was presented resolutions between November 1995 Thirteen of the smallest (less than to Congress on January 9, 1975. On July and April 1996. 2,000 individuals) Frankenia johnstonii 1, 1975, we published a notice in the The Fiscal Year 1997 Listing Priority populations occur on remote rangeland, Federal Register (40 FR 27823) that Guidance identified delisting activities removed from road and residential formally accepted the Smithsonian as the lowest priority (Tier 4). Due to the construction threats. Of the remaining report as a petition within the context large backlog of higher priority listing 10 smaller populations, 3 occur within of section 4(c)(20), now section actions, we did not conduct any 1 mile of State Highway 83 while 4 4(b)(3)(A), of the Act, and of our delisting activities during Fiscal Year others are found in close proximity to intention thereby to review the status of 1997. In Fiscal Year 1998, with a Falcon Reservoir where residential those plants. Frankenia johnstonii was reduced backlog of higher priority construction is likely to remain a threat. included as endangered in this notice. listing actions, we were able to return to Oil and gas exploration and On June 16, 1976, we published a notice a more balanced listing program. We production activities, which can pose in the Federal Register (41 FR 24524) also placed delisting activities within threats to portions of populations via soliciting comments on the Smithsonian Tier 2 in our Fiscal Years 1998 and 1999 road or well-pad construction or report in order for the finally adopted Listing Priority Guidance, published in clearing of seismic lines, were nearly rule to be as accurate and effective as the Federal Register on May 8, 1998 (63 impossible to quantify or to project in possible. Frankenia johnstonii was FR 25502). terms of future geographic sitings. The proposed for listing as an endangered We began to process the Frankenia TPWD did offer to search for species on July 8, 1983 (48 FR 31414). johnstonii petition under the 1998 populations and delineate perimeters, The final rule listing Frankenia guidance. At that time we believed that
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the petitioners did not adequately commercial information available Texas. The practice of root plowing present information about the status, regarding one or more of the five factors (pulling a plow equipped with 3 to 6- distribution, and abundance of the described in section 4(a)(1). These foot-long tines) has historically been the species and that they did not address factors and their application to favored technique for brush clearing in any of the potential threats to the Frankenia johnstonii (Correll) this region of south Texas, although this species. The petition requested that we (Johnston’s frankenia) are as follows: practice has diminished in recent years remove this plant from the List of as cost-share funding for brush clearing A. The Present or Threatened Endangered and Threatened Wildlife has declined. Fluctuating cattle markets Destruction, Modification, or and Plants on the basis of original data and continuing drought in the area have Curtailment of Its Habitat or Range error and cited the Report to Congress provided impetus to south Texas on the Endangered and Threatened The extent of past land conversion ranchers to diversify their sources of Species Recovery Program, USFWS, activities across the range of Frankenia income. As a result many ranchers have 1990, Washington DC, as stating that johnstonii, including brush control, shown increased interest in retaining ‘‘New populations have been found in planting of buffelgrass or other non- native brush habitat to enhance wildlife the lower Rio Grande Valley and this native grasses, or construction activities habitat and hunting opportunities, and species now appears to be more that may have resulted in the loss of this this has also decreased brush clearing abundant and widespread than plant, has not been quantified (Janssen, and pasture improvement activities previously thought.’’ The petitioner also pers. comm. 1998). In the 1990s, road (Arturo Ibarra, USDA NRCS, pers. indicated that information already in construction proliferated across the comm. 2001). our possession showed that this plant South Texas landscape, concentrating in Although the actual mechanical and was significantly more abundant than corridors along the Rio Grande with the chemical means of brush clearing can known at the time of listing. growth of small towns and directly destroy individual plants Although the petitioner referred to multiplication of international bridges. (USFWS 1988), ecological research sufficient information being in our Oil and gas exploration and production shows that long-term replacement of possession to validate their request for activities have proceeded throughout Frankenia johnstonii by buffelgrass or delisting, we did not have this level of the region, accompanied by associated other improved range grass species is data within our files at that time. We pipeline construction, including unlikely due to the extraordinarily also did not have locality maps, size or extensions of pipelines into Mexico. harsh conditions of the soils underlying viability information for all the known Fiber optic lines and cellular Frankenia johnstonii populations. populations, or the data to analyze communication towers are frequent Janssen (1999) reported soil analyses threats to these populations at the time additions to the landscape as we have from within and outside of Frankenia of the draft administrative finding. We seen from the increasingly visible johnstonii populations that showed soil also anticipated extensive new presence of the towers and section 7 salinity, sodium and sodium absorption information being made available in the consultations for these structures. These ratios differed drastically between the near future from an ongoing study of the types of construction activities have two areas. Soil salinity within species by TPWD. Thus we did not go accelerated since the passage of the populations averaged 4,444 parts per forward with a finding at that time. North American Free Trade Agreement million (ppm), ranging from 949 to We received the TPWD report, dated and have the potential to fragment 10,400 ppm. Outside populations, this December 15, 1999, in the spring of habitat and destroy portions of parameter averaged 423 ppm, ranging 2000. Based upon information Frankenia johnstonii populations from 123 to 1,430 ppm. Soil sodium contained in the report, as discussed (Shelley and Pulich 2000). averaged 4,429 ppm within populations throughout this proposed rule, we made Frankenia johnstonii is restricted to (1,011 to 112,404 ppm), while outside of a determination to proceed with a highly specialized habitats with high the populations, the average was 383 proposed rule to delist Frankenia salt, and sometimes gypsum content, in ppm (21 to 2,983 ppm). Sodium johnstonii. Thus, this proposed rule the soils. Although the historical land absorption ratios averaged 19.02 (5.84– constitutes our 90-day and 12-month use at these locations has primarily been 55.52) within the populations, while finding for the petition to delist livestock grazing, the recovery plan 3.38 (0.34–10.05) was the average Frankenia johnstonii. alludes to additional intensive land uses outside. Janssen (1999) found Frankenia (e.g., road construction, oil and gas johnstonii growing in and/or Summary of Factors Affecting the activities, and gypsum mining, as well Species recolonizing areas that were root as other widespread, non-specific plowed 6, 10, or 15 years in the past. After a thorough review and habitat alterations such as residential She observed regrowth of this plant in consideration of all the available development and reservoir eight populations or subpopulations and information, including the TPWD’s 1999 construction) which can destroy these described one subpopulation, still status report, we have determined that specialized habitats (USFWS 1988). replowed annually, as having ‘‘pockets Frankenia johnstonii (Correll) should be Across the South Texas Plain, the of Frankenia johnstonii hanging on.’’ removed from the List of Endangered practice of woody brush eradication, Frankenia johnstonii has leaves with and Threatened Wildlife and Plants. frequently undertaken to improve a number of structural features Section 4(a)(1) of the Act and pasture for grazing, has the potential to characteristic of both halophytes and regulations (50 CFR part 424) issued to adversely affect Frankenia johnstonii xerophytes, enabling the plant to implement the listing provisions of the populations or parts of populations. tolerate extremely saline soils. As a Act set forth the procedures for adding These brush removal efforts have halophyte, the plant can absorb and species to the Federal lists of threatened generally been accomplished with accumulate salt. This salt accumulation and endangered species. The same mechanical means such as bulldozing, within the plant changes the osmotic procedures apply to reclassifying blading, root plowing and/or chaining, gradient, allowing the root cells to species or removing them from these or by use of herbicides. After clearing, absorb water from the soil solution. Salt lists. A species may be determined to be the land is often reseeded with highly glands within the leaves then extrude an endangered or threatened species competitive, non-native grasses, the salt onto the leaf surface. These based on the best scientific and primarily buffelgrass in this region of structural adaptations equip the species
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to live in extremely salty soils. Although 2030; however, this growth is not may be forthcoming. The plants were Frankenia johnstonii is found in arid, uniformly distributed across the three described as being in excellent-to-good saline, gypseous (relatively high gypsum counties. Instead, people are condition when the population was content) habitat in open areas with high concentrating residential development surveyed (Janssen 1999). The second light intensities, it is not found in in a few geographic areas, with the population, although close to Highway adjacent, less saline soils. The patchy highest level of growth in and around 83, has remained in good shape over the occurrence of these high-salinity soil the City of Laredo in Webb County. 30 years since it was first reported pockets or inclusions (units too small to Major areas of growth follow the (Janssen 1999). This population extends be mapped within a soil series) within primary transportation corridors partially on TDOT’s roadway right-of- larger areas of less saline soils results in including Interstate 35 and Highway 83, way. The TDOT and TPWD have the characteristic clumped pattern of and along the Rio Grande downstream enacted a verbal agreement providing Frankenia johnstonii’s distribution. of the Falcon Lake Reservoir (Shelley for reflector posts around the population Relatively few other plant species occur and Pulich 2000). According to Shelley to protect it from mowing and Border within the Frankenia johnstonii and Pulich (2000), relatively few people Patrol maintenance activities (Janssen, populations, but this species assemblage are living far from the cities and pers. comm. 2001). is consistently found at all Frankenia highways. If the current trend in In Webb County, the majority of johnstonii sites. Janssen (1999) suggests population growth holds, this growth is colonias are south, east, and north of that this species successfully competes unlikely to impact those individual Laredo, concentrated along Highway 83 within, but not outside, these saline populations or subpopulations of and the Rio Grande, Farm to Market pockets of soil. Frankenia johnstonii that are distant Road 1472 and the Rio Grande, and to Since nearly all of the known from centers of residential development the east along Highway 359 (Shelley and populations of Frankenia johnstonii or transportation corridors. The fact that Pulich 2000). In these areas, the occur on private land, the TPWD’s much of the land within these three Frankenia johnstonii population voluntary landowner conservation counties is away from the well- appearing to be most vulnerable occurs agreements were designed to help established transportation corridors within a colonia, and future prospects conserve the species using should have the effect of discouraging for its long-term survival are described recommendations concerning certain explosive growth. Additionally, the high as ‘‘grim’’ (Janssen 1999). land management practices. These salinity of the soils supporting B. Overutilization for Commercial, recommendations included avoiding Frankenia johnstonii, in conjunction Recreational, Scientific, or Educational root plowing, bulldozing, disking, roller with the arid climate of the area, results Purposes chopping and herbicide applications in in highly erodible soils that will not Frankenia johnstonii sites, as well as support plant communities desired by There is no evidence to indicate that relieving areas containing populations most real estate developers (Shelley and this species is collected for commercial, from grazing pressure associated with Pulich 2000). Existing Frankenia recreational, scientific, or educational overstocking of animal units. The johnstonii populations that are distant purposes. agreements also provided TPWD from current development are likely to C. Disease or Predation personnel access for purposes of thrive in their unique environment monitoring populations at least once (Shelley and Pulich 2000). Turner’s 1980 status report and the annually. For the 13 populations that The development of colonias, or low- species’ recovery plan allude to contain greater than 10,000 individual income, unincorporated settlements that Frankenia johnstonii plants under plants, 12 are covered under signed lack running water, wastewater heavy grazing pressure having a voluntary conservation agreements. For treatment, or other services, has ‘‘hedged or clipped appearance common the 14 populations that contain between generally occurred outside of in plants grazed by cattle.’’ The 2,000 and 10,000 plants, 7 populations incorporated communities. The largest detrimental effects referred to in the are covered by signed voluntary concentrations of colonias are found recovery plan (USFWS 1988) were conservation agreements. The earliest near the transportation corridors and browsing of tender, new growth that signatures were obtained in June 1996, near the cities at the international might contribute to lowered and the most recent was signed in July boundary along the Rio Grande (Shelley reproductive success and direct 1998. and Pulich 2000). The majority of trampling of young plants or seedlings, The impacts of construction projects colonias in Starr County are found along as well as soil compaction, which may on Frankenia johnstonii populations, Highway 83 and the Rio Grande. One negatively affect germination. Janssen especially highway improvements and/ population of Frankenia johnstonii that (Janssen and Williamson 1993) observed or commercial or residential building faces potential impacts from developing that the population showing the most that is stimulated by highway colonias also extends onto a national harmful effects of grazing was one construction or improvements, may be wildlife refuge tract and would therefore where the fenced area was inadequate to limited to the footprint of the project. be partially protected. support the number of cattle being Twelve of the known U.S. populations In Zapata County, there are fewer stocked and the animals were not of Frankenia johnstonii occur within 1 recorded colonias, with the majority receiving any type of supplemental feed. mile of Highways 83, 16, or 359, three located near the northern end of Falcon R. Cobb observed cottontail rabbits and of the largest roads crossing the Texas Reservoir along Highway 83. Two jackrabbits nibbling on Frankenia range of this species. These highways Frankenia johnstonii populations johnstonii, and she surmises that other are also among the roads most likely to appear to be most at risk from colonias mammals may also browse on it. undergo expansions as trade from in this geographic area. One of these is Janssen (1999) summarized anecdotally Mexico, and commercial and residential found within a subdivision, and its that she had seen little difference in the development, increases. future is unclear because it consists of appearance of Frankenia johnstonii Human population growth in Webb, three ‘‘neighborhood’’ subpopulations populations between ranches with and Zapata, and Starr Counties has more that extend onto property with multiple without cattle in 6 years of field than doubled since 1970 and is ownerships and existing homes, observations and concluded that grazing projected to double or triple again by suggesting that further development is not a direct threat, except possibly to
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those sites under poor range ranchland. We will be contacting the fruit, only one of three ovules typically management. Mexican Government during the developed into a seed; the other two comment period for this proposed rule aborted (Janssen 1999). The percentage D. The Inadequacy of Existing for any additional information that they of seed set among populations that Regulatory Mechanisms may have on the status of the species in Janssen studied ranged from 15–30 Endangered plants do not receive a Mexico. percent. Using seed viability tests, 31 high degree of protection on private percent of the seeds were found to be E. Other Natural or Manmade Factors property under the Act. If the viable. Results of soil seed bank analysis Affecting Its Continued Existence landowner is not using Federal funding from three populations, over 1 year’s or does not require any type of Federal Certain inherent biological time, yielded the germination of only permit or authorization, listed plants characteristics, including small numbers four total seedlings. Seedling may be removed at any time unless of individuals, restricted distribution, recruitment, as monitored within two prohibited by State law. Under chapter and low reproductive potential, were populations, showed 82 and 85 percent 88 of the Texas Parks and Wildlife Code, also thought to affect the continued recruitment. any Texas plant that is placed on the existence of Frankenia johnstonii The results of Janssen and Federal list as endangered is also (USFWS 1988). Turner (1980) observed Williamson’s reproductive analysis of required to be listed by the State as seed set at less than 50 percent in the Frankenia johnstonii showed this endangered. In addition to the State of natural habitat, and Poole noted that species to be a generalist with respect to Texas regulations pertaining to listing, seedlings are rarely seen (USFWS 1988). pollinators. Floral visitation rates were other State laws may apply. The State The recovery plan for Frankenia high, and the species appeared to prohibits taking and/or possession of johnstonii referred to the approximately successfully compete for pollinators. listed plants for commercial sale, or sale 1,500 plants known at the time of Although Frankenia johnstonii is of all or any part of an endangered, listing, and their occurrence in small readily cross-pollinated, this species threatened, or protected plant from populations with none greater than a also has a floral morphology that allows public land. Scientific permits are few hundred plants, as implying a small self-pollination, and self-compatibility required for purposes of collection of gene pool with limited variability and is indicated (Janssen and Williamson endangered plants or plant parts from therefore a diminished capacity for 1996, Janssen 1999). Janssen (1999) public lands for scientific or educational tolerating stresses and threats. The concluded that ‘‘although self- purposes. Commercial permits must be recovery plan indicated that scattered pollination can result in less genetic obtained from the Texas Parks and populations and disjunct distributions variability, it may not be so detrimental Wildlife Department to collect are commonly seen in the genus for plants that occupy narrow ecological endangered plants from private land— Frankenia. Whalen’s (1980) habitats.’’ only if the collector intends to sell the reproductive data in the systematic Plant population growth and stability plants or plant material. The destruction analysis of the genus Frankenia showed can be limited by the production of or removal of any plant from a State Frankenia johnstonii had little viable seeds, especially if there is not park without a permit from the TPWD propensity to reproduce. Turner (1980) asexual reproduction. Frankenia Director is unlawful. If this proposed found low seed viability (<50%) and johnstonii does not reproduce delisting rule is finalized, we anticipate had problems germinating seeds. vegetatively, so seed production is that Texas will also remove Frankenia Janssen collected data on critical. Seed production depends on johnstonii from its State list of reproductive characteristics from six plant size, fruit-to-flower ratio, and endangered species. large populations in Webb (2), Zapata number of seed-producing ovules. With Section 9(a)(2)(B) of the Act, as (3), and Starr (1) Counties. All attempts respect to the three aforementioned amended in 1982, prohibits removal and at germination in a greenhouse ended in factors, Frankenia johnstonii has low possession of endangered plants from failure, which was attributed to fruit-to-flower ratio, low seed set, and areas under Federal jurisdiction. A insufficient light conditions within the low seed viability. Janssen (1999) portion of one population of Frankenia greenhouse (Janssen and Williamson acknowledged that her results regarding johnstonii is located in one of our 1996, Janssen 1999). Results of field these factors may reflect decreased vigor National Wildlife Refuges. A small observations showed that this species in the limited number of populations on portion of another population is flowers throughout the year, but less which she was able to conduct growing in a highway right-of-way abundantly in winter, with the highest reproductive studies. where it is afforded some protection numbers of flowers and fruit in spring/ With respect to long-term survival of from TDOT mowing and Border Patrol early summer. The flowers show no the seeds, the seed bank does not appear maintenance activities. Portions of one, apparent morphological barriers to self- to be a persistent reservoir of buried and possibly two, other Zapata County pollination. For plants having a viable seeds. The seeds are small in size, populations extend onto IBWC- reproductive system where may remain for the most part in the controlled property. The remainder of gametophytic (the sexual generation of a above-ground litter, and probably could the 4 aforementioned populations, as plant which produces gametes) not emerge if buried deep. The seed’s well as the other 54 populations found incompatibility is the case, the thin coat does not favor long-term in the United States, are on privately incompatibility can show up as an survival in the soil, but is suited for owned land. The regulations described inhibition of pollen tube growth, but taking in water fast and then above, and the conservation activities differential pollen tube growth was not subsequently germinating. This may be agreed upon for 19 populations between observed in Frankenia johnstonii. the reason that, despite low seed set and the landowners and the TPWD, help to Analysis of pollen grain viability viability, those seeds that do germinate provide protection for a number of the resulted in a variance from 94–100% have a high rate of recruitment (82 U.S. populations. with an average of 96%. A large variety percent and 85 percent in the two We are not aware of any measures of diurnal pollinators visited Frankenia populations studied). The fruit does not being taken by Mexico to protect johnstonii flowers including flies, bees, appear to be specialized for dispersal, Frankenia johnstonii. It appears that the and butterflies, with bee flies and bees and the seedlings are always found in populations known to us are all on being the most common. Within the close proximity to the parent. Timing of
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germination and seedling size are This species can take advantage of monitored for at least 5 years following critical in determining the fate of sporadic rainfall events, using the delisting. Frankenia johnstonii is being seedlings. The variation in timing of available moisture to germinate quickly. proposed for delisting primarily due to germination and seedling survival seen It readily cross pollinates, but also has new information about this species, in Frankenia johnstonii may be tied to the capability to self-fertilize. This plant rather than due to recovery. This new rainfall amounts. Seedling loss seems to hosts a variety of pollinators, reducing information has expanded the species’ be primarily a result of browsing, its dependence on the survival of any known range, has greatly increased trampling, and drought stress (Janssen one pollinator species. It is unlikely that number of known populations and 1999). human activities have altered the individual plants, and has clarified life Frankenia johnstonii occurs in well- effectiveness of Frankenia johnstonii’s history requirements that apparently defined clumps within well-delineated reproduction, except in cases where give Frankenia johnstonii a competitive salt flats or saline openings in the brush seedling survival has been adversely advantage in the unique habitat it (Janssen and Williamson 1994). This impacted by livestock trampling, a occupies. The Act does not require a species lives in open areas (amount of situation exacerbated by overstocking. bare ground equaling 50 percent within The regulations at 50 CFR 424.11(d) post-delisting monitoring plan for populations) where it is subjected to state that a species may be delisted if (1) Frankenia johnstonii. However, some high light intensities. The plant it becomes extinct, (2) it recovers, or (3) voluntary monitoring will occur, assemblages within Frankenia the original classification data were in covering 19 populations on private land johnstonii populations differ from those error. We conclude that the data and a portion of 1 population on refuge in the brush community outside of those supporting the original classification land. Ten landowners have signed populations. Line intercept sampling were incomplete, and new data show conservation agreements, covering 19 data from 29 populations showed a that removing Frankenia johnstonii separate populations, with the TPWD distinct, recurring assemblage of plants from the List of Endangered and agreeing to protect this species on their at each Frankenia johnstonii population Threatened Wildlife and Plants is property and allowing annual site (Janssen 1999). This species is the warranted. After conducting a review of monitoring of its status. woody dominant where it occurs, the species’ status, we determine that The objectives listed in the Johnston’s having the highest relative dominance, the species is not in danger of extinction Frankenia Recovery Plan include frequency, density, and coverage throughout all or a significant portion of protecting the existing habitat in the compared to other woody species its range, nor is it likely to become in United States, identifying essential within this hypersaline environment. danger of extinction within the habitat required for the species’ Frankenia johnstonii also has the foreseeable future throughout all or a continued existence, contacting highest importance value in this species significant portion of its range. Given assemblage, followed by Varilla texana, the expanded range, number of newly landowners and working together to Prosopis reptans, Thymophylla discovered population locations and create management plans to protect the pentachaeta, and Opuntia leptocaulis, individuals, the lack of competition plants, and obtaining permanent respectively. The importance value from introduced grasses, the remoteness protection of at least one site. The provides an indication of the of some of the larger populations, and TPWD has (beginning in 1999) initiated importance of the species in the habitat the protection offered by a number of photo-monitoring at those populations since its value is equal to the sum of the landowners who control those located on properties for which relative density, relative dominance, populations, we conclude, based on the voluntary conservation agreements were and relative frequency of the species. best scientific and commercial signed. Monitoring will continue at These five plant species are consistently information, that Frankenia johnstonii those sites for 10 years. The Service’s found at each Frankenia johnstonii does not warrant the protection of the Lower Rio Grande Valley National population site (Janssen 1999). Act. Wildlife Refuge will continue to In summary, the threats to Frankenia The Act requires us to make biological monitor Frankenia johnstonii on the one johnstonii’s future, as discussed in decisions based upon the best scientific refuge tract where it occurs, as well as Factor E, focused on the species’ small and commercial data available. In surveying for this species on any new number of individuals, restricted accordance with our peer review policy tracts which are being considered for distribution, and low reproductive (59 FR 34270), we will solicit the expert purchase. Samples of Frankenia potential. With regard to the small opinions of three appropriate and johnstonii seeds will be collected for number of individuals, it is now known independent specialists regarding cryogenic storage as part of a seed that Frankenia johnstonii is much more pertinent scientific or commercial data collection project targeting listed and prevalent than originally thought, with and assumptions relating to the priority plant species of the Lower Rio greater than 9 million plants found taxonomy, population models, and Grande area, a cooperative effort between 1993 and 1999. The discovery supportive biological and ecological between the Service and the San of 51 new populations since the time information on this proposed rule. Antonio Botanical Garden. the recovery plan was approved has brought the total to 58 known locations. Effect of Delisting National Environmental Policy Act These new population discoveries have Removal of Frankenia johnstonii from expanded the geographic range of the the List of Endangered and Threatened The Service has determined that an species to include a third county in Wildlife and Plants would relieve Environmental Assessment, as defined Texas and a third state in Mexico. Federal agencies from the need to under the authority of the National Although the reproductive consult with us to insure that any action Environmental Policy Act of 1969, need characteristics of Frankenia johnstonii they authorize, fund, or carry out is not not be prepared in connection with may contribute to a reproductive likely to jeopardize the continued regulations adopted pursuant to section potential that is relatively lower than existence of this species. 4(a) of the Act. A notice outlining the many flowering plant species, this plant The 1988 amendments to the Act Service’s reasons for this determination appears to be adapted to the arid climate require that all species which have been was published in the Federal Register and the saline soils which it inhabits. delisted due to recovery efforts be on October 25, 1983 (48 FR 49244).
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Government-to-Government Correll, D. S. and M. C. Johnston. 1970. PART 17—[AMENDED] Relationship With Tribes Manual of the Vascular Plants of Texas. Texas Research Foundation, Renner, Texas. 1. The authority citation for part 17 In accordance with the President’s Janssen, G. K., and P. S. Williamson. 1993. continues to read as follows: memorandum of April 29, 1994, Project No. 50: Site Characteristics and Authority: 16 U.S.C. 1361–1407; 16 U.S.C. ‘‘Government-to-Government Relations Management of Johnston’s Frankenia with Native American Tribal 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– (Frankenia Johnstonii). Section 6 625, 100 Stat. 3500; unless otherwise noted. Governments’’ (59 FR 22951) and 512 Performance Report. Texas Grant No: E–1– DM 2, we have determined that this rule 5. 2. Amend § 17.12(h) by removing the will have no effect on Federally Janssen, G. K., and P. S. Williamson. 1994. entry ‘‘Frankenia johnstonii’’ under recognized Indian tribes. Project No. 50: Site Characteristics and ‘‘FLOWERING PLANTS’’ from the List Management of Johnston’s Frankenia of Endangered and Threatened Wildlife Clarity of Regulations (Frankenia johnstonii). Section 6 and Plants. Performance Report. Texas Grant No: E–1– Executive Order 12866 requires each Dated: August 9, 2003. agency to write regulations that are easy 6. Janssen, G. K., and P. S. Williamson. 1996. Steve Williams, to understand. We invite your Project No. 50: Site Characteristics and comments on how to make this rule Director, U.S. Fish and Wildlife Service. Management of Johnston’s Frankenia [FR Doc. 03–12748 Filed 5–21–03; 8:45 am] easier to understand, including answers (Frankenia johnstonii). Section 6 to questions such as the following: (1) Performance Report. Texas Grant No: E–1– BILLING CODE 4310–55–P Are the requirements in the rule clearly 7. stated? (2) Does the rule contain Janssen, G. K. 1999. Project No. 50: Site technical language or jargon that Characteristics and Management of DEPARTMENT OF COMMERCE interferes with its clarity? (3) Does the Johnston’s Frankenia (Frankenia format of the rule (grouping and order johnstonii). Section 6 Final Report. Texas National Oceanic and Atmospheric of sections, use of headings, Grant No: F–3–1. Administration McMahan, C. A., R. G. Frye, and K. L. Brown. paragraphing, etc.) aid or reduce its 1984. The Vegetation Types of Texas. 50 CFR Part 660 clarity? (4) Would the rule be easier to Texas Parks and Wildlife Department, understand if it were divided into more Austin. [I.D. 051503A] (but shorter) sections? (5) Is the Pavlik, B. M. 1996. Defining and Measuring description of the rule in the Success. pp 127–155. In Falk, D. A., C. I. Western Pacific Fishery Management SUPPLEMENTARY INFORMATION section of Millar and M. Olwell, Eds. Restoring Council; Public Meetings the preamble helpful in understanding Diversity, Island Press, Washington, DC the interim rule? What else could we do 505 pp. AGENCY: National Marine Fisheries to make the rule easier to understand? Shelley, F. M., and M. E. Pulich. 2000. A Service (NMFS), National Oceanic and Send a copy of any comments about Geographic Analysis of Threats to Atmospheric Administration (NOAA), how we could make this rule easier to Frankenia johnstonii Correll Commerce. (Frankeniaceae). ACTION: Notice of public meetings and understand to: Office of Regulatory Turner, B. L. 1973. A new species of Affairs, Department of the Interior, Frankenia (Frankeniaceae) from a gypseous hearings. Room 7229, 1849 C Street, NW., soil of North Central Mexico. Sida 5:132– SUMMARY: The Western Pacific Fishery Washington, DC 20240. You also may e- 135. mail comments to: [email protected]. Turner, B. L. 1980. Status report on Management Council (Council) Our practice is to make comments, Frankenia johnstonii Correll. U.S. Fish and Advisory Panels (APs) will meet on June including names and home addresses of Wildlife Service, Albuquerque, New 6 and 7, 2003, and the Council will hold respondents, available for public review Mexico. its 118th meeting June 10 through 13, during regular business hours. You may USFWS 1988. U.S. Fish and Wildlife Service. 2003, in Honolulu, HI. (see call 361/994–9005 to make an Johnston’s Frankenia (Frankenia SUPPLEMENTARY INFORMATION for specific appointment to view the files. johnstonii) Recovery Plan. U.S. Fish and times, dates, and agenda items). Wildlife Service, Albuquerque, New ADDRESSES: Individual respondents may request that Mexico. 49 pp. The AP meetings will be we withhold their home address from Whalen, M. A. 1980. A systematic revision of held at the Council Office Conference the rulemaking record, which we will the New World species of Frankenia Room, 1164 Bishop St., Suite 1400, honor to the extent allowable by law. (Frankeniaceae). PhD. Dissertation, Honolulu, HI; telephone: 808 522–8220. Under limited circumstances, as University of Texas at Austin. The Council meeting will be held at the allowable by law, we can withhold from Ala Moana Hotel, 410 Atkinson Drive, Author the rulemaking record a respondent’s Honolulu, HI; telephone: 808–955–4811. identity. If you wish us to withhold The primary author of this document FOR FURTHER INFORMATION CONTACT: your name and/or address, you must is Robyn Cobb, U.S. Fish and Wildlife Kitty M. Simonds, Executive Director; state this prominently at the beginning Service (see ADDRESSES section). telephone: 808–522–8220. of your comment. However, we will not SUPPLEMENTARY INFORMATION: consider anonymous comments. We List of Subjects in 50 CFR Part 17 Dates and Times will make all submissions from Endangered and threatened species, organizations or businesses, and from Exports, Imports, Reporting and record- APs individuals identifying themselves as keeping requirements, Transportation. representing an organization or The Commercial, Recreational, business, available for public inspection Proposed Regulation Promulgation Subsistence/Indigenous and Ecosystem in their entirety. and Habitat sub-panels will meet jointly For the reasons given in the preamble, on Friday, June 6, 2003, from 8:30 a.m. References Cited we propose to amend part 17, to noon. Sub-panels will meet Correll, D. S. 1966. Some additions and subchapter B of chapter I, title 50 of the individually on Friday, June 6, 2003, corrections to the flora of Texas—II. Code of Federal Regulations, as set forth from 1:30 p.m. to 5 p.m. and continue Rhodora 68:420–428. below: on Saturday, June 7, 2003, from 8:30
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a.m. to 12 noon. Panels will meet in a noon; Bottomfish from 9:00 a.m. to 12 8. Precious coral fisheries: Status of plenary session from 1:30 p.m. to 5 p.m. noon; Ecosystem and Habitat from 1:30 industry on Saturday, June 7, to review p.m. to 3 p.m.; Crustaceans from 3 p.m. 9. Crustaceans fisheries recommendations. The agenda for the to 4:30 p.m.; and Executive/Budget and A. Main Hawaiian Islands lobster Advisory Panel meetings will include Program from 4:30 p.m. to 6 p.m. stock assessment the items listed below. Public comment In addition, the Council will hear B. Lobster tagging administrative periods will be provided throughout the recommendations from its APs, plan report teams (PTs), scientific and statistical agenda. The order in which agenda Thursday, June 12, 2003 items are addressed may change. The committees (SSCs), and other ad hoc APs will meet as late as necessary to groups. Public comment periods will be Guest speaker: David Pauley: ‘‘The complete scheduled business. provided throughout the agenda. The Sea Around Us Project’’ order in which agenda items are 10. Pelagic fisheries Friday, June 6, 2003 addressed may change. The Council will A. 2002 annual report 1. Welcome and introductions meet as late as necessary to complete B. Report on American Samoa 2. Status of previous advisory panel scheduled business. scientific data collection project recommendations C. Report on Hawaii longline observer 3. Overview of Council decision- Public Hearings program making process Public hearings will be held at 3:30 D. Report on phase two of chute trials 4. Report from Island coordinators p.m. on Thursday, June 12, 2003, on the for seabird conservation 5. Report on oceanic conditions issues of management of marlin E. Turtle conservation (water temperature) surrounding the fisheries in Hawaii, and sea turtle (1) Implementation plan for Commonwealth of the Northern Mariana conservation measures; at 11:30 a.m on conservation activities Islands (CNMI) archipelago Friday, June 13, 2003, on the issuance (2) Fishery management alternatives 6. Bottomfish fisheries of community development program (action item) A. Guam offshore bottomfish (CDP) Mau Zone bottomfish permits; F. Marlin management (Action item) management and at 11:45 a.m. on Friday, June 13, G. Status of environmental impact B. Community demonstration project 2003, on managing Guam’s offshore statements (EISs) Mau Zone new entry criteria bottomfish fishery. The agenda during (1) Supplemental pelagic EIS C. Bottomfish overfishing/overfished the full Council meeting will include (2) Main Hawaiian Islands turtle EIS control rule the items listed here. (3) Observer program EIS D. Status of State of Hawaii (4) Turtle experiment EIS bottomfish area closures Wednesday, June 11, 2003 H. Small boat outreach issues 7. Marine protected areas (MPAs) 1. Introductions I. International meetings and issues A. Establishing process for identifying 2. Approval of Agenda (1) FAO Committee on Fisheries reserve preservation areas in the 3. Approval of 117th Meeting Minutes meeting 4. Island Reports (2) NMFS turtle bycatch meeting Northwestern Hawaiian Islands (NWHI) rd B. Use of MPAs in fishery A. American Samoa (3) 23 turtle symposium management (e.g. Hawaii legislature B. Guam J. Public hearing on turtle initiative, California Channel Islands C. Hawaii conservation measures, and on and longline closures) D. CNMI management of marlin fisheries in C. Comments on reserve preservation 5. Regional constituent meeting with Hawaii. Current turtle conservation areas in the NWHI. Bill Hogarth measures for turtles which interact with 6. Reports from Federal fishery 8. Pelagic fisheries the Hawaii-based longline fishery A. Marlin management agencies and organizations include a complete closure of all A. Department of Commerce B. Seabird mitigation shallow set swordfish target longline (1) NMFS C. Sea Turtle mitigation fishing north of the equator and a (a) Pacific Islands Region seasonal closure in April and May each D. Growing use of personal fish (b) Pacific Island Fisheries Science aggregation devises year of fishing grounds south of the Center ° 9. Small boat outreach issues Hawaiian Islands (from 15 N. lat. to the (2) NOAA General Counsel, Pacific equator, and from 145° W. long. to 180° 10. Report on finfish farming Islands Region 11. Sub-panel break-out sessions to long.). The Council will consider (3) National Ocean Service (NOS) whether to amend the Fishery discuss issues and develop (a) National Marine Sanctuaries recommendations Management Plan for the Pelagics Program Fishery of the Western Pacific Region (b) Pacific Services Center Saturday, June 7, 2003 (Pelagics FMP) and eliminate the B. Department of the Interior, U.S. southern April/May closure, or to 12. Sub-panel break-out sessions Fish and Wildlife Service continue from 8:30 a.m. to 12 noon C. U.S. State Department modify the closure so that some areas 13. Joint panel session reconvenes at 7. Enforcement and VMS would remain open during April and 1:30 p.m. to review and finalize A. U.S. Coast Guard activities May. The Council will take public recommendations to the Council B. NMFS activities comment on modifications to the current management regime before Committee Meetings C. Enforcement activities of local agencies taking further action on this issue. The following Standing Committees D. Status of violations The Council staff will consider a of the Council will meet on June 10, E. Report on enforcement meeting range of alternatives to address the fact 2003. Enforcement/Vessel Monitoring (1) Outreach efforts that Pacific blue marlin landings are System (VMS) from 7:30 a.m. to 9 a.m.; (2) American Samoa vessel reportedly approaching maximum Fishery Rights of Indigenous People monitoring system costs sustainable yield (MSY). Under new from 7:30 a.m. to 9 a.m.; International (3) Electronic data reporting for overfishing control rules recommended Fisheries/Pelagics from 9 a.m. to 12 Hawaii longline fleet by the Council in its recent Sustainable
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Fisheries Act amendments, the Council CDP permits. The three alternatives to banks target the shallow-water will be required to reduce fishing be considered for selecting participants bottomfish complex, but some target the mortality if overfishing is determined to for the program include a random deep-water complex. be occurring, if the stock is determined selection process (lottery), a weighted It is unknown at this time whether the to be overfished, or if the fishery is point system, and evaluation criteria. new component of the fishery is having identified to be approaching an Each alternative will be used in concert significant impacts on marine resources. overfished condition. The degree to with the Western Pacific community Initial discussions with fishery which fishing mortality by Council eligibility criteria as described in a managers and Guam’s fishing managed fisheries should be reduced is Federal Register document published community (through a public scoping unclear given that these fisheries are a on April 16, 2002 (67 FR 18512). The meeting held on Guam August 8, 2002 small percentage of Pacific-wide Council’s preferred alternative adopted and February 8, 2003), indicate that the th harvests. The Council will deliberate on by the Council at is 117 meeting in catch of fish by this new component the appropriate scale of response, and Saipan on February 12, 2003, was may lead to localized overfishing of the on the appropriate measures that it incorporated into the existing draft bank area. framework amendment ‘‘Measure to could adopt as a preferred alternative in 14. Program Planning an amendment to the Pelagics FMP, Establish Eligibility Criteria for New should this be required. The Council Entry into the Northwestern Hawaiian A. Legislation updates will take public comment on whether an Islands Mau Zone Limited Access B. Status of Pacific Islands Region amendment to the Pelagics FMP is System’’. The revised framework C. Pacific fishery management necessary, and if so, what should be the regulatory amendment incorporates the coordinating consultation CDP permit issuance process to be preferred alternative in the amendment D. Social science research planning to the Pelagics FMP. presented and considered for final E. Exclusive Economic Zone data 11. Indigenous fishery rights action by the Council at this meeting. A. Transmittal of Hawaii marine The Council will also consider collection conservation plans alternatives and intends to take final F. Report on fishery data coordination B. Community demonstration projects action to manage Guam’s offshore committee meeting/WPacFIN program bottomfish fishery. The Council 15. Administrative matters considered management alternatives at (1) Report on first solicitation A. Financial reports (2) Report on 2nd Solicitation its 117th Council meeting in February B. Administrative reports C. Mau Zone community 2003, and selected, as its preferred development program (see bottomfish) alternative, the option to prohibit C. Upcoming meetings and workshops D. Annual Report to Congress targeting of bottomfish management unit including the 119th Council meeting species (BMUS) using vessels longer D. AP, SSC, PT and Sea turtle working Friday, June 13, 2003 than 50 ft(15.24 m) that fish in Federal group appointments 12. Ecosystems and Habitats waters within 50 nautical miles from 16. Other business A. Report on the NOS NWHI Reserve shore. In addition the preferred Science Workshop alternative would require Federal Although non-emergency issues not B. NMFS/Council NWHI symposium permits and reports for all vessels over contained in this agenda may come C. Report from Council MPAs 50 ft (15.24 m) in length that land before the Council for discussion, those working group BMUS in Guam. issues may not be the subject of formal D. Report on Secretariat of the Pacific Recent entry of larger vessels into the Council action during this meeting. Communities Coastal Fishery Guam bottomfish fishery has raised Council action will be restricted to those Management Meeting concerns regarding data collection gaps issues specifically listed in this E. Report on the U.S. Coral Reef Task and resource status. These vessels document and any issue arising after Force Meeting harvest deep-slope species on offshore publication of this document that (1) February 26 Meeting seamounts (or ‘‘banks’’) in Federal requires emergency action under section (2) Pacific coral reef fisheries waters, land the bottomfish at Guam’s 305(c) of the Magnuson-Stevens Fishery management workshop commercial port, and export the Conservation and Management Act, F. Status of the Coral Reef Ecosystem bottomfish to Japan. Neither the level of provided the public has been notified of Fishery Management Plan fishing effort nor the amount of the Council’s intent to take final action 13. Bottomfish Fisheries bottomfish harvested, which is believed to address the emergency. A. 2002 Annual report modules to have started in 2001, is known. Special Accommodations B. Status of Main Hawaiian Island Guam’s creel survey does not cover fish management program landed at the commercial port and the These meetings are physically C. Overfishing control rule/MSY exported fish are not sold through any accessible to people with disabilities. D. Report on NWHI bottomfish establishments that participate in the Requests for sign language observer program voluntary sales ticket monitoring interpretation or other auxiliary aids E. New entry criteria for Mau Zone program. Onaga (Etelis coruscans) should be directed to Kitty M. Simonds, community development program appears to be the primary species that 808–522–8220 (voice) or 808–522–8226 bottomfish permits (Action item) is targeted. (fax), at least 5 days prior to the meeting F. Guam offshore bottomfish The southern banks have been fished date. management (Action Item) for many years by Guam-based Authority: 1801 et seq. G. Public hearing on final action for bottomfish fishermen using smaller Mau Zone community development vessels that engage in a mix of Dated: May 16, 2003. program bottomfish permits and Guam subsistence, recreational, and small- Richard W. Surdi, offshore bottomfish management. scale commercial fishing, particularly in Acting Director, Office of Sustainable The Council will consider alternatives the summer months, when weather Fisheries, National Marine Fisheries Service. to take final action on a process for conditions tend to be calmer. Most of [FR Doc. 03–12743 Filed 5–21–03; 8:45 am] issuing NWHI Mau Zone bottomfish the vessels fishing on the southern BILLING CODE 3510–22–S
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DEPARTMENT OF COMMERCE SUPPLEMENTARY INFORMATION: management measures, the Council wished to take a new look at efficiency Electronic Access National Oceanic and Atmospheric in the annual management process. Administration This Federal Register document is Groundfish management workload also accessible via the Internet at the levels have grown in recent years, 50 CFR Part 660 Web site of the Office of the Federal particularly those associated with Register’s Web site at: http://www/ [I.D.051403C] setting annual harvest levels for both access/gpo.gov/suldocs/aces140.html. depleted and healthy stocks. Because of RIN 0648–AQ68 The Magnuson-Stevens Fishery the increasing workload associated with Conservation and Management Act developing specifications and Fisheries off West Coast States and in (Magnuson-Stevens Act) requires each management measures, the Council and the Western Pacific; Pacific Coast regional fishery management council to NMFS have had less time for addressing Groundfish Fishery; Amendment 17 submit fishery management plans or many other important groundfish plan amendments to NMFS for review AGENCY: National Marine Fisheries fishery management issues. NMFS has and approval, disapproval, or partial Service (NMFS), National Oceanic and recently asked all of the fishery approval. The Magnuson-Stevens Act Atmospheric Administration (NOAA), management councils to consider how also requires NMFS, immediately upon Commerce. they might streamline their processes receiving a fishery management plan or ACTION: Notice of availability of an for developing regulatory amendment, to publish notification in recommendations. Amendment 17 amendment to a fishery management the Federal Register that the fishery plan; request for comments. responds to this request by setting the management plan or plan amendment is specifications and management SUMMARY: NMFS announces that the available for public review and measures process for biennial, rather comment. At the end of the comment Pacific Fishery Management Council than annual, development and period, NMFS considers the public (Council) has submitted Amendment 17 implementation. comments received during the comment to the Pacific Coast Groundfish Fishery Public comments on Amendment 17 period described above in determining Management Plan (FMP) for Secretarial must be received by July 21, 2003, to be whether to approve, partially approve, review. Amendment 17 would revise considered by NMFS in the decision or disapprove the fishery management the Council’s annual groundfish whether to approve, disapprove, or management process so that it would plan or plan amendment. Amendment 17 is administrative in partially approve Amendment 17. A become a biennial process with a NMFS nature and is intended to revise Council proposed rule to implement public notice and comment period prior and NMFS processes associated with Amendment 17 has been submitted for to implementation of the biennial the specifications and management Secretarial review and approval. NMFS specifications and management measures. This annual process expects to publish and request public measures. Amendment 17 is intended to establishes harvest ‘‘specifications,’’ comment on proposed regulations to ensure that the specifications and which are harvest levels or limits such implement Amendment 17 in the near management measures process comports as acceptable biological catches, future. with a Court ruling to make the optimum yields, or allocations for Authority: 16 U.S.C. 1801 et seq. Council’s development process for different user groups. Management specifications and management Dated: May 16, 2003. measures, such as trip limits, closed Bruce C. Morehead, measures more efficient, and to times and areas, and gear restrictions are streamline the NMFS regulatory process Acting Director, Office of Sustainable also set in the annual regulatory Fisheries, National Marine Fisheries Service. for implementing the specifications and process. Since 1990, in order to use the [FR Doc. 03–12885 Filed 5–21–03; 8:45 am] management measures. most recent scientific information DATES: Comments on Amendment 17 possible, the Council has annually BILLING CODE 3510–22–S must be received on or before July 21, developed its recommendations for 2003. specifications and management DEPARTMENT OF COMMERCE ADDRESSES: Comments on Amendment measures in a two-meeting process 17 or supporting documents should be (usually its September and November National Oceanic and Atmospheric sent to D. Robert Lohn, Administrator, meetings) followed by a NMFS final Administration (NOAA) Northwest Region, NMFS, Sand Point action published in the Federal Register Way NE., BIN C15700, Seattle, WA and made available for public comment 50 CFR Part 660 98115–0070; or to Rodney McInnis, after the effective date of the action. In Acting Administrator, Southwest 2001, NMFS was challenged on this [Docket No. 030430106–3106–01; I.D. Region, NMFS, 501 West Ocean process in Natural Resources Defense 040103C] Boulevard, Suite 4200, Long Beach, CA Council, Inc. v. Evans, 168 F.Supp. 2d 90802–4213. 1149 (N.D. Cal. 2001) and the Court RIN 0648–AQ58 Copies of Amendment 17 and the ordered NMFS to provide prior public Fisheries Off West Coast States and in Environmental Assessment/ Regulatory notice and allow public comment on the the Western Pacific; Pacific Coast Impact Review (EA/RIR) are available annual specifications. Amendment 17 Groundfish Fishery; Vessel Monitoring from Donald McIsaac, Executive would amend the FMP’s framework for Systems Director, Pacific Fishery Management developing annual specifications and Council, 2130 SW Fifth Ave., Suite 224, management measures to include time AGENCY: National Marine Fisheries Portland, OR 97201. for NMFS to publish a proposed rule for Service (NMFS), National Oceanic and FOR FURTHER INFORMATION CONTACT: the specifications and management Atmospheric Administration (NOAA), Yvonne deReynier (Northwest Region, measures, followed by a final rule. Commerce. NMFS), phone: 206–526–6140; fax: 206– In addition to needing to revise the ACTION: Proposed rule; request for 526–6736 and; e-mail: notice and comment procedure comments. [email protected]. associated with the specifications and
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SUMMARY: NMFS is proposing a rule that Office of the Federal Register’s Web site service providers used for Federal would require vessels registered to at http://www.access.gpo.gpv/su-docs/ fisheries management. Pacific Coast groundfish fishery limited aces/aces140.htm. Background Information collected under a VMS entry permits to carry and use mobile information and documents are program is subject to the confidentiality vessel monitoring system (VMS) available at the NMFS Northwest Region provisions of Section 402 of the transceiver units while fishing in the Web site at http://www.nwr.noaa.gov/ Magnuson-Stevens Fishery exclusive economic zone (EEZ) off the 1sustfsh/gdfsh01.htm and at the Conservation and Management Act coasts of Washington, Oregon, and Council’s Web site at http:// (Magnuson-Stevens Act), 6 U.S.C. 1881 California. This action is necessary to www.pcouncil.org. a(b), and implementing regulations at 50 monitor compliance with large-scale Specific Request for Comments CFR part 600, Subpart E. These depth-based restrictions for fishing authorities specify in detail who may across much of the continental shelf. NMFS is specifically seeking access and use the information and for This proposed rule also requires the comment on: the requirements to send what purposes. operators of any vessel registered to a declaration reports prior to leaving port; limited entry permit and any other prohibition of vessels registered to Amendment 13 to the Pacific Coast commercial or tribal vessel using trawl limited entry permits with trawl groundfish FMP recognized the value of gear, including exempted gear used to endorsements from activities other than VMS systems in enforcing closed areas take pink shrimp, spot and ridgeback continuous transit through the Trawl established to reduce bycatch levels. prawns, California halibut and sea Rockfish Conservation Area; and the Amendment 13 also identified VMS as cucumber, to declare their intent to fish requirement for continuous VMS a technological tool that could be used within a conservation area specific to position reports, particularly as it to improve bycatch management by their gear type, in a manner that is applies to small vessels that are providing location data that can be used consistent with the conservation area regularly removed from the water. in conjunction with observer data requirements. This action is intended to collections. further the conservation goals and Background Time and area closures have long objectives of the Pacific Coast In general, a variety of methods are been used in the Pacific Coast Groundfish Fishery Management used to routinely monitor fishing fleets groundfish fishery to restrict fishing Plan(FMP) by allowing fishing to to ensure that vessel operators comply activity in order to keep harvests within continue in areas and with gears that with fishery regulations. Traditional sector allocations and at sustainable can harvest healthy stocks with little techniques used to monitor marine levels and to prohibit the catch of incidental catch of low abundance fisheries have been relatively limited certain species. Until September 2002, species. and include monitoring from air and geographically-defined areas tended to DATES: Comments must be received by surface craft, through on-board observer be in nearshore areas or defined by July 21, 2003. programs, and by analyzing catch simple latitude and longitude lines. On ADDRESSES: Send comments to, D. records and vessel logbooks. The September 13, 2002, NMFS took Robert Lohn, Administrator, Northwest efficiency of these traditional emergency action to implement the first Region, NOAA Fisheries, 7600 Sand monitoring techniques can be enhanced depth-based management measures (67 Point Way, NE, Seattle, WA 98112, Attn: by the addition of VMS and the use of FR 57973). This emergency rule Becky Renko. Comments also may be declaration reports. restricted trawling north of 40°10′ N. sent via facsimile (fax) to 206–526– VMS is a tool that allows vessel lat., in the months of September- 6736. Comments will not be accepted if activity to be monitored in relation to December 2002, to depths where submitted via e-mail or Internet. geographically defined management darkblotched rockfish, an overfished Copies of the environmental areas. VMS transceiver units installed species, was not expected to be assessment/regulatory impact review/ aboard vessels automatically determine encountered. These measures were initial regulatory flexibility analysis the vessel′s position and transmit that taken to keep the total catch of (EA/RIR/IRFA) prepared for this action position to a processing center via a darkblotched rockfish below the 2002 may be obtained from the Pacific communication satellite. At the Optimum Yield level. The Darkblotched Fishery Management Council (Council) processing center, the information is Rockfish Conservation Area was a by writing to the Council at 7700 NE validated and analyzed before being depth-based management area based on Ambassador Place, Portland, OR 97220, disseminated for various purposes, bottom depth ranges where phone: 503–820–2280, or may be which may include fisheries darkblotched rockfish commonly occur obtained from William L. Robinson, management, surveillance and (100–250 fm). This large, irregularly- Northwest Region, NMFS, 7600 Sand enforcement. VMS transceivers shaped geographical area was defined Point Way N.E., BIN C15700, Bldg. 1, automatically determine the vessel′s by a series of latitudinal and Seattle, WA 98115–0070. Send position using Global Positioning longitudinal coordinates which comments on collection-of-information System (GPS) satellites. Generally, the generally follow depth (fathom) requirements to the NMFS address vessel′s position is determined once per contours. This area differed from above and to the Office of Information hour, but the position determinations previously closed areas because it and Regulatory Affairs (OIRA), Office of may be more or less frequent depending extends far offshore making air and Management and Budget (OMB), on the fishery. VMS transceivers are surface craft enforcement difficult. Washington DC 20503 (Attn: NOAA designed to be tamper resistant. In most For 2003, the Council sought a Desk Officer). cases, the vessel owner is not aware of management strategy that would allow FOR FURTHER INFORMATION CONTACT: exactly when the unit is transmitting fishing to continue in areas and with Becky Renko or Yvonne deReynier and is unable to alter the signal or the gear that can harvest healthy stocks with (Northwest Region, NMFS) 206–526– time of transmission. On September 23, little incidental catch of low abundance 6140. 1993 (58 FR 49285)and March 31, 1994 species such as bocaccio, yelloweye, SUPPLEMENTARY INFORMATION: This rule (59 FR 15181) NMFS published VMS canary and darkblotched rockfish. is accessible via the Internet at the standards for transceiver units and Measures must be taken to protect these
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stocks and rebuild them to sustainable vessels registered to limited entry valid until cancelled or revised by the biomass levels. Therefore, the Council permits fishing in the EEZ off the vessel operator. The declaration report recommended that NMFS define Washington, Oregon, and California must state the type of fishing in which additional management areas for the coasts to have VMS transceiver units. the vessel will engage. If the type of groundfish fishery that are based on This is intended to be a pilot program fishing changes, a new declaration bottom depth ranges where these low that begins with the sector that is report must be submitted. abundance species are commonly allocated the majority of the groundfish During the period that a vessel has a found. For 2003, large-scale depth- resources. In order to implement a VMS valid declaration report on file with related closed areas, referred to as program effectively, the Council also NMFS, it cannot fish with a gear other rockfish conservation areas or RCAs, are recommended requiring the operator of being used to restrict both commercial any vessel registered to a limited entry than a gear type that is within the gear and recreational fishing across much of permit; and any commercial or tribal category (50 CFR 660.303 (b)(5)) the Continental Shelf. Different RCAs vessel using trawl gear, including, declared by the vessel. In addition, on are established for different gear types, exempted gear used to take pink shrimp, any trip on which a vessel fishes in an as not all gear types encounter each spot and ridgeback prawns, California RCA or CCA, the vessel cannot overfished species at the same rate or in halibut and sea cucumber, to declare participate in any fishing that is similar areas. For example, groundfish their intent to fish within a conservation inconsistent with the restrictions that bottom trawling is banned in some area specific to their gear type, in a apply within the RCA or CCA. RCAs (known as trawl RCAs); use of manner that is consistent with the Declaration reports will be submitted non-trawl gear -- such as limited entry conservation area requirements. to NMFS by using the VMS system or and open access longline, pot or trap is Although the Council recommended another approved method, such as banned in other RCAs (known as non- that NMFS fully fund a VMS monitoring email, facsimile or telephone, as trawl RCAs). program, it is not possible at this time identified by NMFS. Vessel operators Within the RCAs, fishing likely to because neither state nor Federal making declaration reports will receive result in the catch of substantial funding is available for purchasing, a confirmation notice or number that amounts of overfished species is installing, or maintaining VMS verifies that the reporting requirements banned, while other fishing is allowed. transceiver units, nor is funding were satisfied. In addition, transit of the RCAs by available for data transmission. Because fishing vessels headed for open areas of the critical need to monitor the Declaration Requirements Example seaward of the RCAs is allowed. integrity of conservation areas that #1: If a vessel registered to a limited The depth-based management strategy protect overfished stocks, while entry permit with a trawl endorsement associated with the RCAs is designed to allowing for the harvest of healthy leaves port on a trip to harvest Pacific allow fishing for healthy stocks to stocks, NMFS believes it is necessary to whiting during the primary season, and continue, while protecting overfished proceed with this rulemaking. To move the vessel is not used in another species. However, it presents new this rulemaking forward at this time it commercial fishery in the EEZ off the enforcement challenges, and requires is necessary to require fishery coasts of Washington, Oregon, or new tools such as VMS to supplement participants to bear the cost of California during the year, a declaration existing enforcement mechanisms. purchasing, installing, and maintaining report will be required before the vessel NMFS and cooperating enforcement VMS transceiver units, VMS data leaves port on its trip to harvest Pacific agencies (such as the U.S. Coast Guard transmissions, and reporting costs whiting with midwater trawl gear in the and state marine law enforcement associated with declaration Trawl RCA. This is the only declaration agencies) will continue to use requirements. If state or Federal funding report required for this vessel. traditional enforcement methods such becomes available, fishery participants Declaration Requirements Example as aerial surveillance and marine patrols may be reimbursed for all or a portion #2: If a vessel registered to a limited that have proved effective in the past. of their VMS expenses. Adding requirements for VMS and entry permit with a trawl endorsement declaration reports will allow the Declaration Reports is used to harvest pink shrimp inside enforcement agencies to continuously Before the vessel is used to fish in any the Trawl RCA from April to June; monitor vessels fishing in, and trawl RCA or the Cowcod Conservation Pacific whiting inside the Trawl RCA transiting through, the RCAs. Areas (CCA) in a manner that is from June to September; flatfish from At its September 2002 meeting, the consistent with the requirements of the areas not inside the Trawl RCA from Council indicated that the information conservation areas, a declaration report September to December; and crab both provided by a VMS program will be will be required from (1) any vessel inside the Trawl RCA and from areas beneficial to managing the groundfish registered to a limited entry permit with not inside the Trawl RCA in December; fishery, specifically, in maintaining the a trawl endorsement; (2) any vessel the following declarations will be integrity of new, depth-based using trawl gear, including exempted required: in April a declaration will be management measures. At this same gear used to take pink shrimp, spot and required to identify the gear as pink meeting, the Council requested that ridgeback prawns, California halibut shrimp, spot and ridgeback prawn trawl NMFS further analyze a VMS program and sea cucumber; and (3) any tribal gear; in June a declaration will be and develop implementing regulations. vessel using trawl gear. In addition, required to identify the gear as limited At its November 2002 meeting, declaration reports will be required entry midwater trawl gear; in September following public comment and Council from vessels registered to limited entry a declaration will be sent to cancel the discussion, the Council recommended permits with longline and pot declaration to fish in a conservation that NMFS move forward with a endorsements, before these vessels can area; in December a declaration will be proposed rule to implement a VMS be used to fish in any Non-trawl RCA sent identifying the gear type as crab or program for the Pacific Coast groundfish or the CCA. The declaration report must lobster gear. Each declaration report fishery in 2003. During the initial phase be submitted before the vessel leaves would be sent before the vessel leaves of this program the Council port on the trip to fish in an RCA or port on the first trip under that recommended starting with requiring CCA. Each declaration report will be declaration.
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VMS continuously operate a VMS transceiver, from NMFS (see ADDRESSES). A Under this proposed rule, any vessel may choose to send an exemption report summary of the IRFA follows: registered to a limited entry permit for to discontinue transmissions during a A description of the action, why it is the Pacific Coast groundfish fishery will period when the vessel will be being considered, and the legal basis for be required to have an operating NMFS continuously out of the water for more this action are contained in the type-approved VMS transceiver unit on than 7 consecutive days, or if the vessel SUMMARY and at the beginning of this section of this proposed rule. This board while fishing in the EEZ off the is operating seaward of the EEZ off proposed rule does not duplicate, states of Washington, Oregon and Washington, Oregon, or California for overlap, or conflict with other Federal California. Type-approved VMS more than 7 consecutive days. rules. transceiver units may include but are The 2003 Annual Specifications and A range of five alternative actions not limited to, the following features: Management Measures were considered and analyzed. The automatically generated position reports The 2003 Annual Specifications and alternative monitoring systems from transceivers with a fully Management Measures implemented included: (1) the status quo, (2) a integrated, tamper proof GPS, two-way gear restrictions that affect this declaration system, (3) a basic VMS communications for sending and rulemaking. When the annual program with 1–way communications receiving messages, global or near global specifications and management (the proposed action), (4) an upgraded coverage, delays between position measures became effective on March 1, VMS program with 2–way transmission and receipt at processing 2003 (68 FR 11182), it became unlawful communications, and (5) the expanded center that averages 5 minutes, ability to to take and retain, possess, or land use of fishery observers. Vessel plotters add sensors and data input devices, groundfish taken with limited entry were recommended as a monitoring sleep modes that detect lack of vessel groundfish trawl and open access system by the industry. After movement (in port) and stop sending exempted trawl gear in the Trawl RCA. consideration, it was determined that position reports (greatly reducing power The only exceptions are for exempted vessel plotters, which were designed as consumption) until the vessel begins trawl gear that is used to harvest pink a navigational aid, would not be an moving again, and visual or audible shrimp coastwide and prawns north of adequate enforcement monitoring tool alarms for malfunctions. 4°10′ N. lat.; and for limited entry for depth-based management. Currently, the cost of a NMFS type- midwater trawl gear used to harvest Under the status quo ( Alternative 1) approved VMS transceiver unit, suitable yellowtail rockfish, widow rockfish or for 2003, large-scale depth-related for the Pacific Coast groundfish fishery, Pacific whiting during the primary closed areas, referred to as rockfish ranges from approximately $2,000 to whiting season. Similarly, recreational conservation Areas or RCAs, are being $6,000. The charges for the transmission fishing for groundfish was prohibited used to restrict both commercial and of VMS position data from these units within the Yelloweye RCA and directed recreational fishing across much of the ranges from $1.00 to $5.00 per day. fishing with non-trawl gear (open access Continental Shelf. The depth-based NMFS is in the process of revising VMS or limited entry) was prohibited within management strategy associated with standards for type-approved models and the Non-trawl RCA. As it was in 2002, the RCAs is designed to allow fishing testing new, less expensive, VMS recreational and commercial fishing for for healthy stocks to continue, while transceiver technologies for agency groundfish continues to be prohibited protecting overfished species. However, approval. NMFS intends to complete within the CCA, except that recreational this management system presents new this approval process and provide the and commercial fishing for rockfish and enforcement challenges, and requires public with a list of type-approved lingcod is permitted in waters inside 20 new tools to supplement existing transceiver units before NMFS fathoms (36.9 m). enforcement mechanisms. These implements a final rule requiring the Trawl vessels may transit through the measures would remain in place under use of VMS transceivers in the fishery. Trawl RCA, with or without groundfish all alternatives, with increased access The cost for some of the VMS units that on board, provided all groundfish trawl allowed to restricted areas as are being tested for type-approval are gear is stowed either: (1) below deck; or conditioned by the different expected to be less expensive than the (2) if the gear cannot readily be moved, alternatives. prices quoted above. in a secured and covered manner, Declaration reports (Alternative 2) A list of VMS transceivers that have detached from all towing lines, so that alone were not considered to be as been type-approved by NMFS will be it is rendered unusable for fishing; or (3) effective as VMS in monitoring vessels mailed to the permit owner′s address of remaining on deck uncovered if the location in relation to restricted areas. record. NMFS will also distribute trawl doors are hung from their Much of the information collected by installation and activation instructions stanchions and the net is disconnected observers (Alternative 5) goes beyond for the affected vessel owners. The from the doors. If a vessel fishes in an the identified need and was by far the installation of the VMS transceiver is RCA, it may not participate in any most expensive alternative. expected to take less than 4 hours and fishing on that same trip that is A VMS program is an effective tool for will be the responsibility of the vessel inconsistent with the restrictions that monitoring vessel location. The two owners. Prior to fishing, the vessel apply within the RCA. In addition, a approaches to VMS were: a basic VMS owner will be required to fax an vessel is prohibited from having more system (Alternative 3–proposed action) activation report to NMFS to verify that than one type of trawl gear on board if and an upgraded VMS system the unit was installed correctly and has it is trawling within an RCA and may (Alternative 4). The primary difference been activated. This regulatory only have trawl gear authorized for use between the two alternatives was that amendment will require that the vessel within an RCA on board. the upgraded system uses two-way owner or operator of a vessel registered communications between the vessel and to a limited entry groundfish permit use Classification shore such that full or compressed data a NMFS type-approved VMS transceiver NMFS prepared an IRFA that messages can be transmitted and at all times when participating in any describes the economic impact this received by the vessel, while the basic and all fisheries in the U.S. West Coast proposed rule, if adopted, would have system only transmits positions to a EEZ. A vessel owner required to on small entities. The IRFA is available shore station. It was determined that the
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basic system was the minimum system apply to vessels registered to limited vessel owner the flexibility in choosing that would maintain the integrity of the entry permits with trawl endorsements the model that best fits the needs of his closed areas. However, this action will (262 vessels); other vessels using trawl or her vessel. NMFS would pay for all not preclude vessels from installing an gear, including exempted gear used to costs associated with polling (when the upgraded VMS system. take pink shrimp, spot and ridgeback processing center queries the A VMS program that identified the prawns, California halibut and sea transceiver, outside of regular sectors of the groundfish fleet that cucumber (299 vessels); and tribal transmission, for a position report). The would be required to have a VMS or vessels using trawl gear, before these costs of installation are minimal because observer monitoring system was vessel are used to fish in any trawl RCA the transceivers can be installed by the considered. The alternative coverage or the CCA. In addition, declaration vessel operator. Vessels that already levels ranged from limited entry vessels reports would be required from vessels have VMS transceiver units installed for actively fishing off the West Coast to all registered to limited entry permits with other fisheries or personal purposes limited entry, open access, and longline and pot endorsements (167), could use their current unit, providing recreational charter vessels regardless of before the vessel could be used to fish it is a model that has been type- where fishing occurs. During the initial in any non-trawl RCA or the CCA. approved for the Pacific Coast phase of this program the Council The Council′s VMS Committee groundfish fishery and the software has recommended starting with vessels initially considered declaration reports been upgraded to meet the defined registered to limited entry permits as ‘‘per trip’’ reports. Following requirements. fishing in the EEZ off the Washington, consultation with fishery participants, it The Council estimated that, under the Oregon, and California coasts to be was determined that the needs of NMFS proposed VMS measure, costs of required to have VMS transceiver units. and the USCG could be met with less purchasing and installing the unit This is intended to be a pilot program frequently made declaration reports. would be between $800 and $3800 per that begins with the sector that is Therefore, it was determined that a individual vessel, and between $548 allocated the majority of the groundfish declaration report identifying the type and $1698 per year to operate and resources. In addition, alternative of gear being used by a vessel would maintain the unit. Revenues from approaches for funding the purchasing, remain valid until cancelled or revised expanded fishing were estimated to installation, and maintenance of VMS by the vessel operator. This results in a increase $26,000 per year for limited transceiver units, as well as the significant reduction in the number of entry trawl vessels and $14,000 per year responsibilities for transmission of reports. Following consultation with for limited entry longline and pot reports and data were considered and fishery participants, it was determined vessels, far exceeding the exceeding the included the following alternatives: that some vessels may prefer to reduce estimated start-up and maintenance Vessel pays all costs, vessel pays only the costs of reporting when leaving the costs of the VMS. for the transceiver, NMFS pays for EEZ off the coasts of Washington, While ex-vessel revenues appear initial transceiver, and NMFS pays all Oregon, and California. A substantial higher on average for vessels likely to be costs. number of permitted vessels also fish in required to use VMS under the depth- Although the Council recommended waters off Alaska and in areas seaward based management regime, it should be that NMFS fully fund a VMS monitoring of the EEZ. In addition, vessels are noted that fishing costs may also be program, it is not possible at this time commonly pulled out of the water for higher, offsetting some of the apparent because neither state nor Federal extended periods. To reduce the gain. Unfortunately, vessel cost data funding is available for purchasing, reporting burden on vessels outside the necessary to estimate this effect are installing, or maintaining VMS EEZ, an optional exemption report was currently not available. It is also transceiver units, nor is funding proposed to allow vessels to reduce or important to keep in mind that using available for data transmission. Because discontinue VMS hourly position average revenues masks the variability of the critical need to monitor the reports when they are out of the EEZ for of ex-vessel revenues in each vessel integrity of conservation areas that more than 7 consecutive days. class. While on average, additional protect overfished stocks, while The proposed measure (alternative 3), revenues appear greater than VMS- allowing for the harvest of healthy which would require limited entry related costs, for some individual stocks, NMFS believes it is necessary to vessels to purchase and operate a VMS vessels in each class this will not be the proceed with this rulemaking. in the EEZ off of Washington, Oregon, case. Approximately 424 vessels that are and California, is expected to increase Alternative 4, which would registered to limited entry permits that the profitability of individual vessels implement a two-way VMS, would operate in the EEZ off the states of that participate in the VMS program. To produce higher costs per vessel (year 1 Washington, Oregon or California would determine profitability, the Council at $3,878-$7,607; subsequent years at be required to carry and operate a NMFS compared the costs of purchasing and $1,063-$2,342) and would yield less type-approved VMS transceiver unit. operating a VMS unit to the increase in profit, ceteris paribis, than the proposed All but 10 of the affected entities qualify revenue that would be obtained from VMS alternative. Alternative 5, which as small businesses. Vessels required to expanded fishing opportunities under would implement observer coverage, carry VMS transceiver units will the depth management program. Since would be very costly at $300 per day, provide installation/activation reports, revenue data for individual vessels were or $36,000 per year assuming 10 fishing hourly position reports, and exemption not readily available, the Council used days per month, and would most likely reports. As this proposed rule was average annual revenue per vessel as a produce economic losses for the developed, the burden on fishery proxy. In the absence of vessel operating majority of limited entry vessels. participants was considered and cost data, the Council considered only Alternative 2, which would allow changes were made to ensure that only the cost of purchasing and maintaining expanded fishing by use of declaration the minimum data needed to monitor a VMS unit and assumed other costs to only, would be more profitable to compliance with regulations are being be constant. limited entry vessels than the proposed required. The VMS units that have been type- VMS measure, since they would earn In addition to VMS requirements, approved for this fishery range in costs the same revenue at a minimal cost. declaration report requirements would and service features. This allows the However, the Council believes that
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mandatory VMS will allow for better the accuracy of the burden estimate; implementation of the FMP for the enforcement of fishing regulations and ways to enhance the quality, utility, and Pacific Coast groundfish fishery is not provide a more accurate database of clarity of the information to be expected to jeopardize the continued fishing activity to better meet the collected; and ways to minimize the existence of any endangered or conservation goals of the Pacific burden of the collection of information, threatened species under the Groundfish FMP. including through the use of automated jurisdiction of NMFS, or result in the The proposed measure to require all collection techniques or other forms of destruction or adverse modification of trawl vessels to declare their intentions information technology. Send comments critical habitat. This action is within the to fish is expected to have only a on these or any other aspects of the scope of these consultations. minimal impact on individual trawlers collection of information to NMFS (see This proposed rule has been since the cost of a declaration is ADDRESSES) and to OMB at the Office of determined to be not significant for minimal. Information and Regulatory Affairs, purposes of Executive Order 12866. Most vessels affected by this action OMB, Washington, DC 20503 (Attn: Dated: May 15, 2003. have gross annual receipts of under $3.5 NOAA Desk Officer). million and are defined as small entities Notwithstanding any other provision Rebecca Lent, under Section 601 of the Regulatory of the law, no person is required to Deputy Assistant Administrator for Flexibility Act, however, there are respond to, nor shall any person be Regulatory Programs, National Marine Fisheries Service. approximately 10 vessels defined as subject to a penalty for failure to comply For the reasons set out in the large entities operating in the limited with, a collection of information subject preamble, 50 CFR part 660 is proposed trawl fishery. There could be some to the requirements of the PRA, unless to be amended as follows: disproportionate economic impacts on the collection of information displays a small entities versus large entities for currently valid OMB Control Number. PART 660—FISHERIES OFF THE WEST the group of limited entry vessels that NMFS issued Biological Opinions COAST STATES AND IN THE are less than 40 ft (12.192 m) in length (BOs) under the Endangered Species Act WESTERN PACIFIC and have relatively low gross annual on August 10, 1990, November 26, 1991, receipts. These include 90 limited entry August 28, 1992, September 27, 1993, 1. The authority citation for part 660 vessels, comprised of 5 trawl vessels May 14, 1996, and December 15, 1999, continues to read as follows: and 85 longline and pot vessels. pertaining to the effects of the Authority: 16 U.S.C. 1801 et seq. Depending upon the cost of the VMS, groundfish fishery on chinook salmon some of these smaller vessels would be (Puget Sound, Snake River spring/ Subpart G—West Coast Groundfish forced to pay a relatively larger share of summer, Snake River fall, upper Fisheries their annual expenditures for purchase Columbia River spring, lower Columbia of the VMS compared to the larger River, upper Willamette River, 2. In § 660.302, add ‘‘ Address of vessels. All vessels that fish in Sacramento River winter, Central record’’, ‘‘Groundfish Conservation Area conservation areas would increase their Valley, California coastal), coho salmon or GCA’’, ‘‘Mobile transceiver unit’’, gross receipts by being able to fish in (Central California coastal, southern ‘‘Office for Law Enforcement’’, and more productive areas, having the effect Oregon/northern California coastal, ‘‘Vessel monitoring system or VMS’’, in of increasing profitability and mitigating Oregon coastal), chum salmon (Hood alphabetical order to read as follows: the cost of the VMS. This mitigation Canal, Columbia River), sockeye salmon § 660.302 Definitions. would be less for smaller vessels, due to (Snake River, Odette Lake), and Address of record means the business their smaller catches and, therefore, steelhead (upper, middle and lower address of a person, partnership, or income from groundfish. Columbia River, Snake River Basin, corporation used by NMFS to provide This proposed rule contains upper Willamette River, central notice of actions. collection-of-information requirements California coast, California Central subject to review and approval by OMB Valley, south-central California, * * * * * under the Paperwork Reduction Act northern California, and southern Groundfish Conservation Area or GCA (PRA). These requirements have been California). During the 2000 Pacific means a geographic area defined by submitted to OMB for approval. Public whiting season, the whiting fisheries coordinates expressed in degrees reporting burden for these collections is exceeded the chinook bycatch amount latitude and longitude, created and estimated to average as follows: 4 specified in the Pacific whiting fishery′s enforced for the purpose of contributing minutes for a declaration report; 4 hours Biological Opinion′s (whiting BO) to the rebuilding of overfished West for installation of a VMS transceiver (December 19, 1999) incidental catch Coast groundfish species. Specific GCAs unit; 4 hours for annual maintenance of statement estimate of 11,000 fish, by are referred to or defined at § 660.304(c). a VMS transceiver unit; 5 minutes for an approximately 500 fish. In the 2001 * * * * * installation/activation report; 5 seconds whiting season, however, the whiting Mobile transceiver unit means a for each automated hourly position fishery′s chinook bycatch was about device installed on board a vessel that report; and 4 minutes for an exemption 7,000 fish, which approximates the is used for monitoring a vessel and for report. These estimates include the time long-term average. After reviewing data transmitting the vessel′s position as for reviewing instructions, searching from, and management of, the 2000 and required by this subpart. existing data sources, gathering and 2001 whiting fisheries (including Office for Law Enforcement (OLE) maintaining the data needed, and industry bycatch minimization refers to the National Marine Fisheries completing and reviewing the collection measures), the status of the affected Service, Office for Law Enforcement, information. listed chinook, environmental baseline Northwest Division. Public comment is sought regarding information, and the incidental catch * * * * * whether this proposed collection of statement from the 1999 whiting BO, Vessel monitoring system or VMS information is necessary for the proper NMFS determined in a letter dated means a vessel monitoring system or performance of the functions of the April 25, 2002, that a re-initiation of the mobile transceiver unit as set forth in agency, including whether the 1999 whiting BO was not required. § 660.359 and approved by NMFS for information shall have practical utility; NMFS has concluded that use on vessels that take (directly or
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incidentally) species managed under the identify the intent to fish within the Plan, species managed under the Coastal Pacific Coast Groundfish FMP, as CCA, as defined at § 660.304, or any Pelagic Species Fishery Management required by this subpart. non-trawl RCA, as defined in the Plan, and any species in the gillnet 3. Section 660.303 is revised to read groundfish annual management complex as managed by the State of as follows: measures that are published in the California. Federal Register. (G) Non-trawl gear used to take § 660.303 Reporting and recordkeeping. (3) When a declaration report for groundfish. (a) This subpart recognizes that catch fishing in a conservation area is (ii) Declaration reports must be and effort data necessary for required, as specified in paragraphs submitted through the VMS or another implementing the PCGFMP are (d)(1) and (d)(2) of this section, it must method that is approved by NMFS OLE collected by the States of Washington, be submitted before the vessel leaves and announced in the Federal Register. Oregon, and California under existing port: Other methods may include email, state data collection requirements. (i) On a trip in which the vessel will facsimile, or telephone. NMFS OLE will Telephone surveys of the domestic be used to fish in a conservation area for provide, through appropriate media, industry may be conducted by NMFS to the first time during the calendar year; instructions to the public on submitting determine amounts of whiting that may (ii) On a trip in which the vessel will declaration reports. Instructions and be available for reallocation under 50 be used to fish in a conservation area other information needed to make CFR 660.323(a)(4)(vi). No Federal with a gear type that is different from declarations may be mailed to the reports are required of fishers or the gear declaration provided on a valid limited entry permit owner’s address of processors, so long as the data collection declaration report as defined at record. NMFS will bear no and reporting systems operated by state paragraph 660.303 (d)(6) of this section; responsibility if a notification is sent to agencies continue to provide NMFS or the address of record and is not received with statistical information adequate for (iii) On a trip in which the vessel will because the permit owner’s actual management. be used to fish in a conservation area for address has changed without (b) Any person who is required to do the first time after a declaration report notification to NMFS, as required at so by the applicable state law must to cancel fishing in a conservation area § 660.335 (a)(2). Owners of vessels that make and/or file, retain, or make was received by NMFS. are not registered to limited entry available any and all reports of (4) Declaration report to cancel permits and owners of vessels registered groundfish landings containing all data, fishing in a conservation area. The to limited entry permits that did not and in the exact manner, required by the operator of any vessel that provided receive instructions by mail are applicable state law. NMFS with a declaration report for responsible for contacting NMFS OLE (c) Any person landing groundfish fishing in a conservation area, as during business hours at least 3 days must retain on board the vessel from required at paragraphs (d)(1) or (d)(2) of before the declaration is required to which groundfish is landed, and this section, must submit a declaration obtain information needed to make provide to an authorized officer upon report to NMFS OLE to cancel the declaration reports. NMFS OLE must be request, copies of any and all reports of current declaration report before the contacted during business hours groundfish landings containing all data, vessel leaves port on a trip in which the (Monday through Friday between 0800 and in the exact manner, required by the vessel is used to fish with a gear that is and 1700 Pacific Time). applicable state law throughout the not in the same gear category set out in (6) A declaration report will be valid cumulative limit period during which a paragraph 660.303 (d)(5)(i) declared by until a declaration report to revise the landing occurred and for 15 days the vessel in the current declaration. existing gear declaration or a declaration thereafter. (5) Declaration reports will include: report to cancel fishing in a (d) Reporting requirements for vessels the vessel name and/or identification conservation area is received by NMFS fishing in conservation areas—(1) number, and gear declaration (as OLE. During the period that a vessel has Declaration reports for trawl vessels defined in paragraph 660.303(d)(5)(i)). a valid declaration report on file with intending to fish in a conservation area. Upon receipt of a declaration report, NMFS, it cannot fish with a gear other The operator of any vessel registered to NMFS will provide a confirmation code than a gear type that is within the gear a limited entry permit with a trawl or receipt. Retention of the confirmation category (50 CFR 660.303 (d)(5)) endorsement; any vessel using trawl code or receipt to verify that the declared by the vessel. After a gear, including exempted gear used to declaration requirement was met is the declaration report to cancel fishing in take pink shrimp, spot and ridgeback responsibility of the vessel owner or the RCA is received, that vessel must prawns, California halibut and sea operator. not fish in a conservation area until cucumber; or any tribal vessel using (i) One of the following gear types another declaration report for fishing by trawl gear must provide NMFS with a must be declared: that vessel in a conservation area is declaration report, as specified at (A) Limited entry fixed gear, received by NMFS. paragraph 660.303(d)(5), of this section (B) Limited entry midwater trawl, 4. Section 660.304 is revised to read to identify the intent to fish within the (C) Limited entry bottom trawl, as follows: CCA, as defined at § 660.304, or any (D) Trawl gear including exempted trawl RCA, as defined in the groundfish gear used to take pink shrimp, spot and § 660.304 Management areas, including annual management measures that are ridgeback prawns, California halibut conservation areas, and commonly used published in the Federal Register. south of Pt. Arena, CA, and sea geographic coordinates. (2) Declaration reports for non-trawl cucumber. (a) Management areas vessels intending to fish in a (E) Tribal trawl, (1) Vancouver. (i) The northeastern conservation area. The operator of any (F) Other gear including: gear used to boundary is that part of a line vessel registered to a limited entry take spot and ridgeback prawns, crab or connecting the light on Tatoosh Island, permit with a longline or pot lobster, Pacific Halibut, Salmon, WA, with the light on Bonilla Point on endorsement must provide NMFS OLE California halibut, California sheephead, Vancouver Island, British Columbia (at with a declaration report, as specified at species managed under the Highly 48°35′75″ N. lat., 124°43′00’’ W. long.) paragraph (d)(5) of this section, to Migratory Species Fishery Management south of the International Boundary
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between the U.S. and Canada (at 48° (c) Groundfish Conservation Areas 48°00′ N. lat., 124°59′ W. long.; 29′37.19’’ N. lat., 124°43′33.19’’ W. (GCAs). In § 660.302, a GCA is defined 48°00′ N. lat., 125°18′ W. long.; long.), and north of the point where that as ‘‘a geographic area defined by and connecting back to 48°18′ N. lat., line intersects with the boundary of the coordinates expressed in latitude and 125°18′ W. long. U.S. territorial sea. longitude, created and enforced for the (e) International boundaries. (1) Any (ii) The northern and northwestern purpose of contributing to the person fishing subject to this subpart is boundary is a line connecting the rebuilding of overfished West Coast bound by the international boundaries following coordinates in the order groundfish species.’’ Specific GCAs may described in this section, listed, which is the provisional be defined here in this paragraph, or in notwithstanding any dispute or international boundary of the EEZ as the Federal Register, within the harvest negotiation between the United States shown on NOAA/NOS Charts #18480 specifications and management and any neighboring country regarding and #18007: measures process. While some GCAs their respective jurisdictions, until such may be designed with the intent that time as new boundaries are established Point N. lat. W. long. their shape be determined by ocean or recognized by the United States. bottom depth contours, their shapes are (2) The inner boundary of the fishery ° ′ ″ ° ′ ″ 14829 37.19 124 43 33.19 defined in regulation by latitude/ management area is a line coterminous 248°30′11″ 124°47′13″ with the seaward boundaries of the ° ′ ″ ° ′ ″ longitude coordinates and are enforced 34830 22 124 50 21 States of Washington, Oregon, and 448°30′14″ 124°54′52″ by those coordinates. Fishing activity ° ′ ″ ° ′ ″ that is prohibited or permitted within a California (the ‘‘3–mile limit’’). 54829 57 124 59 14 (3) The outer boundary of the fishery 648°29′44″ 125°00′06″ particular GCA is detailed in Federal 748°28′09″ 125°05′47″ Register documents associated with the management area is a line drawn in 848°27′10″ 125°08′25″ harvest specifications and management such a manner that each point on it is 948°26′47″ 125°09′12″ measures process. 200 nm from the baseline from which 10 48°20′16″ 125°22′48″ (1) Rockfish Conservation Areas the territorial sea is measured, or is a 11 48°18′22″ 125°29′58″ provisional or permanent international ° ′ ″ ° ′ ″ (RCAs). RCAs are defined in the Federal 12 48 11 05 125 53 48 Register through the harvest boundary between the United States and 13 47°49′15″ 126°40′57″ Canada or Mexico. 14 47°36′47″ 127°11′58″ specifications and management 15 47°22′00″ 127°41′23″ measures process. RCAs may apply to a * * * * * 16 46°42′05″ 128°51′56″ single gear type or to a group of gear 5. In § 660.306, new paragraphs (z), 17 46°31′47″ 129°07′39″ types, such as ‘‘trawl RCAs’’ or ‘‘non- (aa) and (bb) are added to read as trawl RCAs’’. follows: ° ′ (iii) The southern limit is 47 30 N. (2) Cowcod Conservation Areas § 660.306 Prohibitions. lat. (CCAs). (i) The Western CCA is an area (2) Columbia. (i) The northern limit is south of Point Conception that is bound * * * * * (z) Vessel monitoring systems. (1) Use 47°30′ N. lat. by straight lines connecting all of the (ii) The southern limit is 43°00′ N. lat. following points in the order listed: any vessel registered to a limited entry (3) Eureka. (i) The northern limit is 33°50′ N. lat., 119°30′ W. long.; permit to operate in the EEZ off the 43°00′ N. lat. 33°50′ N. lat., 118°50′ W. long.; States of Washington, Oregon or (ii) The southern limit is 40°30′ N. lat. 32°20′ N. lat., 118°50′ W. long.; California unless that vessel carries a (4) Monterey. (i) The northern limit is 32°20′ N. lat., 119°37′ W. long.; NMFS OLE type-approved mobile 40°30′ N. lat. 33°00′ N. lat., 119°37′ W. long.; transceiver unit and complies with the (ii) The southern limit is 36°00′ N. lat. 33°00′ N. lat., 119°53′ W. long.; requirements described at § 660.359. (2) Fail to install, activate, repair or (5) Conception. (i) The northern limit 33°33′ N. lat., 119°53′ W. long.; ° ′ ° ′ replace a mobile transceiver unit prior is 36°00′ N. lat. 33 33 N. lat., 119 30 W. long.; ° ′ to leaving port as specified at § 660.359. (ii) The southern limit is the U.S.- and connecting back to 33 50 N. lat., ° ′ (3) Fail to operate and maintain a Mexico International Boundary, which 119 30 W. long. mobile transceiver unit on board the is a line connecting the following (2) The Eastern CCA is a smaller area vessel at all times as specified at coordinates in the order listed: west of San Diego that is bound by straight lines connecting all of the § 660.359. Point N. lat. W. long. following points in the order listed: (4) Tamper with, damage, destroy, 32°42′ N. lat., 118°02 W. long.; alter, or in any way distort, render 132°35′22″ 117° 27′49″ 32°42′ N. lat., 117°50 W. long.; useless, inoperative, ineffective, or 232°37′37″ 117°49′31″ 32°36′42’’ N. lat., 117°50 W. long.; inaccurate the VMS, mobile transceiver 331°07′58″ 118°36′18″ 32°30′ N. lat., 117°53′30’’ W. long.; unit, or VMS signal required to be 430°32′31″ 121°51′58″ 32°30′ N. lat., 118°02 W. long.; installed on or transmitted by a vessel and connecting back to 32°42′ N. lat., as specified at § 660.359. (b) Commonly used geographic 118°02′ W. long. (5) Fail to contact NMFS OLE or coordinates. (d) Yelloweye Rockfish Conservation follow NMFS OLE instructions when (1) Cape Falcon, OR—45°46′ N. lat. Area (YRCA). The YRCA is a C-shaped automatic position reporting has been (2) Cape Lookout, OR——45°20′15’’ area off the northern Washington coast interrupted as specified at § 660.359. N. lat. that is bound by straight lines (aa) Fishing in conservation areas. (1) (3) Cape Blanco, OR—42°50′ N. lat. connecting all of the following points in Fish with any trawl gear, including ° ′ (4) Cape Mendocino, CA—40 30 N. the order listed: exempted gear used to take pink shrimp, lat. 48°18′ N. lat., 125°18′ W. long.; spot and ridgeback prawns, California (5) North/South management line— 48°18′ N. lat., 124°59′ W. long.; halibut south of Pt. Arena, CA, and sea 40°10′ N. lat. 48°11′ N. lat., 124°59′ W. long.; cucumber; or with trawl gear from a (6) Point Arena, CA—38°57′30’’ N. lat. 48°11′ N. lat., 125°11′ W. long.; tribal vessel or with any gear from a (7) Point Conception, CA—34°27′ N. 48°04′ N. lat., 125°11′ W. long.; vessel registered to a groundfish limited lat. 48°04′ N. lat., 124°59′ W. long.; entry permit in a conservation area
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unless the vessel owner or operator has service providers will submit products and telephone number, USCG vessel a valid declaration confirmation code or or services to NMFS OLE for evaluation documentation number/state receipt for fishing in conservation area based on the published specifications. registration number; if applicable, the as specified at § 660.303(d)(5). (3) NMFS OLE may publish a list of groundfish permit number the vessel is (bb) Operate any vessel registered to NMFS OLE type-approved mobile registered to; VMS transceiver unit a limited entry permit with a trawl transceiver units and communication manufacturer; VMS communications endorsement in a Trawl Rockfish service providers for the Pacific Coast service provider; VMS transceiver Conservation Area (as defined at groundfish fishery in the Federal identification; and a statement signed 660.302), except for purposes of Register or notify the public through and dated by the vessel owner continuous transiting, provided that all other appropriate media. As necessary, confirming compliance with the groundfish trawl gear is stowed in NMFS OLE may publish amendments to installation procedures provided by accordance with 660.322(b)(8) or as the list of type-approved mobile NMFS OLE. authorized in the annual groundfish transceiver units and communication (ii) [Reserved] management measures published in the service providers in the Federal (3) Operate the mobile transceiver Federal Register. Register or through other appropriate unit continuously 24 hours a day 6. In § 660.322, new paragraph (b)(7) media. A list of VMS transceivers that throughout the calendar year, unless is added to read as follows: have been type-approved by NMFS OLE such vessel is exempted under may be mailed to the permit owner′s paragraph(d)(4)of this section. § 660.322 Gear restrictions. address of record. NMFS will bear no (4) VMS exemptions. A vessel that is (b) * * * responsibility if a notification is sent to required to operate the mobile (7) Trawl vessels may transit through the address of record and is not received transceiver unit continuously 24 hours the trawl RCA, with or without because the applicant′s actual address a day throughout the calendar year may groundfish on board, provided all has changed without notification to be exempted from this requirement if a groundfish trawl gear is stowed either: NMFS, as required at § 660.335 (a)(2). valid exemption report, as described at (i) Below deck; or (d) What are the vessel owner′s paragraph (d)(4)(iii) of this section, is (ii) If the gear cannot readily be responsibilities? If you are a vessel received by NMFS OLE and the vessel moved, in a secured and covered owner that must participate in the VMS is in compliance with all conditions and manner, detached from all towing lines, program, you or the vessel operator requirements of the VMS exemption so that it is rendered unusable for must: identified in this section. fishing; or (1) Obtain a NMFS OLE type- (i) Haul out exemption. When it is (iii) Remaining on deck uncovered if approved mobile transceiver unit and anticipated that a vessel will be the trawl doors are hung from their have it installed on board your vessel in continuously out of the water for more stanchions and the net is disconnected accordance with the instructions than 7 consecutive days and a valid from the doors. provided by NMFS OLE. You may get a exemption report has been received by 7. Section 660.359 is added to subpart copy of the VMS installation and NMFS OLE, electrical power to the VMS G to read as follows: operation instructions from the NMFS mobile transceiver unit may be removed OLE Northwest, VMS Program Manager and transmissions may be discontinued. § 660.359 Vessel Monitoring System (VMS) upon Request at 7600 Sand Point Way Under this exemption VMS requirements. NE, Seattle, WA 98115–6349, phone: transmissions can be discontinued from (a) What is a VMS? A VMS consists (206)526–6133. the time the vessel is removed from the of a NMFS OLE type-approved mobile (2) Activate the mobile transceiver water until the time that the vessel is transceiver unit that automatically unit, submit an activation report, and placed back in the water. determines the vessel′s position and receive confirmation from NMFS OLE (ii) Outside areas exemption. When transmits it to a NMFS OLE type- that the VMS transmissions are being the vessel will be operating seaward of approved communications service received before participating in a fishery the EEZ off Washington, Oregon, or provider. The communications service requiring the VMS. Instructions for California for more than 7 consecutive provider receives the transmission and submitting an activation report may be days and a valid exemption report has relays it to NMFS OLE. obtained from the NMFS OLE, been received by NMFS OLE, the VMS (b) Who is required to have VMS? A Northwest VMS Program Manager upon mobile transceiver unit transmissions vessel registered for use with a Pacific request at 7600 Sand Point Way NE, may be reduced or discontinued from Coast groundfish limited entry permit Seattle, WA 98115–6349, phone: the time the vessel leaves the EEZ off that fishes in the EEZ off the States of (206)526–6133. An activation report the coasts of Washington, Oregon or Washington, Oregon or California is must again be submitted to NMFS OLE California until the time that the vessel required to install a NMFS OLE type- following reinstallation of a mobile re-enters the EEZ off the coasts of approved mobile transceiver unit and to transceiver unit or change in service Washington, Oregon or California. arrange for an NMFS OLE type- provider before the vessel may Under this exemption, the vessel owner approved communications service participate in a fishery requiring the or operator can request that NMFS OLE provider to receive and relay VMS. reduce or discontinue the VMS transmissions to NMFS OLE, prior to (i) Activation reports. If you are a transmissions after receipt of an fishing in the EEZ. vessel owner who must use VMS and exemption report, if the vessel is (c) How are mobile transceiver units you are activating a VMS transceiver equipped with a VMS transceiver unit and communications service providers unit for the first time or reactivating a that NMFS OLE has approved for this approved by NMFS OLE? (1) NMFS OLE VMS transceiver unit following a exemption. will publish type-approval reinstallation of a mobile transceiver (iii) Exemption reports must be specifications for VMS components in unit or change in service provider, you submitted through the VMS or another the Federal Register or notify the public must fax NMFS OLE an activation method that is approved by NMFS OLE through other appropriate media. report that includes: Vessel name; vessel and announced in the Federal Register. (2) Mobile transceiver unit owner′s name, address and telephone Other methods may include email, manufacturers or communication number, vessel operator′s name, address facsimile, or telephone. NMFS OLE will
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provide, through appropriate media, exempted activities defined at reports has occurred, the vessel′s owner instructions to the public on submitting paragraphs (d)(4)(i) and (ii) of this or operator must replace or repair the exemption reports. Instructions and section occur. An exemption report is mobile transceiver unit prior to the other information needed to make valid until NMFS receives a report vessel′s next fishing trip. Repair or exemption reports may be mailed to the canceling the exemption. An exemption reinstallation of a mobile transceiver limited entry permit owner’s address of cancellation must be received at least 2 unit or installation of a replacement, record. NMFS will bear no hours before the vessel re-enters the EEZ including change of communications responsibility if a notification is sent to following an outside areas exemption or service provider shall be in accordance the address of record and is not received at least 2 hours before the vessel is with the instructions provided by NMFS because the permit owner’s actual placed back in the water following a OLE and require the same certification. address has changed without haul out exemption. notification to NMFS, as required at (5) When aware that transmission of (7) Make the mobile transceiver units § 660.335 (a)(2). Owners of vessels automatic position reports has been available for inspection by NMFS OLE registered to limited entry permits that interrupted, or when notified by NMFS personnel, U.S. Coast Guard personnel, did not receive instructions by mail are OLE that automatic position reports are state enforcement personnel or any responsible for contacting NMFS OLE not being received, contact NMFS OLE authorized officer. during business hours at least 3 days at 7600 Sand Point Way NE, Seattle, WA (8) Ensure that the mobile transceiver before the exemption is required to 98115–6349, phone: (206)526–6133 and unit is not tampered with, disabled, obtain information needed to make follow the instructions provided to you. destroyed or operated improperly. exemption reports. NMFS OLE must be Such instructions may include, but are contacted during business hours not limited to, manually communicating (9) Pay all charges levied by the (Monday through Friday between 0800 to a location designated by NMFS OLE communication service provider as and 1700 Pacific Standard Time). the vessel’s position or returning to port necessary to ensure continuous (iv) Exemption reports must be until the VMS is operable. operation of the VMS transceiver units. received by NMFS at least 2 hours and (6) After a fishing trip during which [FR Doc. 03–12884 Filed 5–21–03; 8:45 am] not more than 24 hours before the interruption of automatic position BILLING CODE 3510–22–S
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Notices Federal Register Vol. 68, No. 99
Thursday, May 22, 2003
This section of the FEDERAL REGISTER Packers and Stockyards Administration Avenue, SW., during regular business contains documents other than rules or (GIPSA) is asking persons interested in hours. proposed rules that are applicable to the providing official services in the areas FOR FURTHER INFORMATION CONTACT: public. Notices of hearings and investigations, served by these agencies to submit an committee meetings, agency decisions and Janet M. Hart at 202–720–8525, e-mail rulings, delegations of authority, filing of application for designation. GIPSA is [email protected]. petitions and applications and agency also asking for comments on the SUPPLEMENTARY INFORMATION: This statements of organization and functions are services provided by these currently examples of documents appearing in this designated agencies: Frankfort Grain Action has been reviewed and section. Inspection, Inc. (Frankfort); Indianapolis determined not to be a rule or regulation as defined in Executive Order 12866 Grain Inspection & Weighing Service, and Departmental Regulation 1512–1; Inc. (Indianapolis); and Virginia therefore, the Executive Order and DEPARTMENT OF AGRICULTURE Department of Agriculture and Departmental Regulation do not apply Grain Inspection, Packers and Consumer Services (Virginia). to this Action. Stockyards Administration DATES: Applications and comments Section 7(f)(1) of the United States must be postmarked or electronically Grain Standards Act, as amended (Act), [03–02–A] dated on or before July 1, 2003. authorizes GIPSA’s Administrator to Opportunity for Designation in the designate a qualified applicant to ADDRESSES: Submit applications and provide official services in a specified Frankfort (IN), Indianapolis (IN), and comments to USDA, GIPSA, Janet M. Virginia Areas, and Request for area after determining that the applicant Hart, Chief, Review Branch, Compliance is better able than any other applicant Comments on the Official Agencies Division, STOP 3604, Room 1647-S, Serving These Areas to provide such official services. 1400 Independence Avenue, SW., Section 7(g)(1) of the Act provides AGENCY: Grain Inspection, Packers and Washington, DC 20250–3604; FAX 202– that designations of official agencies Stockyards Administration, USDA. 690–2755. If an application is submitted shall end not later than triennially and ACTION: Notice. by FAX, GIPSA reserves the right to may be renewed according to the request an original application. All criteria and procedures prescribed in SUMMARY: The designations of the applications and comments will be Section 7(f) of the Act. official agencies listed below will end in made available for public inspection at 1. Current Designations being December 2003. Grain Inspection, Room 1647-S, 1400 Independence Announced for Renewal
Designation Designation Official agency Main office start end
Frankfort ...... Frankfort, IN ...... 3/01/2001 12/31/2003 Indianapolis ...... Indianapolis, IN ...... 3/01/2001 12/31/2003 Virginia ...... Richmond, VA ...... 2/01/2001 12/31/2003
a. Pursuant to Section 7(f)(2) of the Bounded on the West by the western State Route 13 and south of State Route Act, the following geographic area, in and northern Montgomery County lines; 132; Marion; Monroe; Morgan; and the State of Indiana, is assigned to the western Clinton County line; the Shelby Counties. Frankfort. western Carroll County line north to c. Pursuant to Section 7(f)(2) of the Bounded on the North by the northern State Route 25; State Route 25 northeast Act, the following geographic area, the Fulton County line; to Cass County; the western Cass and entire State of Virginia, except those Bounded on the East by the eastern Fulton County lines. export port locations within the State, is Fulton County line south to State Route Frankfort’s assigned geographic area assigned to Virginia. 19; State Route 19 south to State Route does not include the following grain 2. Opportunity for Designation 114; State Route 114 southeast to the elevators inside Frankfort’s area which eastern Fulton and Miami County lines; have been and will continue to be Interested persons, including the northern Grant County line east to serviced by the following official Frankfort, Indianapolis, and Virginia, County Highway 900E; County Highway agency: Titus Grain Inspection, Inc.: The are hereby given the opportunity to 900E south to State Route 18; State Andersons, Delphi, Carroll County; apply for designation to provide official Route 18 east to the Grant County line; Frick Services, Inc., Leiters Ford, Fulton services in the geographic areas the eastern and southern Grant County County; and Cargill, Inc., Linden, specified above under the provisions of lines; the eastern Tipton County line; Montgomery County. Section 7(f) of the Act and section the eastern Hamilton County line south b. Pursuant to Section 7(f)(2) of the 800.196(d) of the regulations issued to State Route 32; Act, the following geographic area, in thereunder. Designation in the specified Bounded on the South by State Route the State of Indiana, is assigned to geographic areas is for the period 32 west to the Boone County line; the Indianapolis. beginning January 1, 2004, and ending eastern and southern Boone County Bartholomew; Brown; Hamilton, December 31, 2006. Persons wishing to lines; the southern Montgomery County south of State Route 32; Hancock; apply for designation should contact the line; and Hendricks; Johnson; Madison, west of Compliance Division at the address
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listed above for forms and information, therefore, the Executive Order and ACTION: Notice. or obtain applications at the GIPSA Departmental Regulation do not apply website, www.usda.gov/gipsa/oversight/ to this action. SUMMARY: Grain Inspection, Packers and parovreg.htm. In the January 29, 2003, Federal Stockyards Administration (GIPSA) Register (68 FR 4445), GIPSA 3. Request for Comments announces designation of the following announced that the Mississippi organizations to provide official services GIPSA also is publishing this notice Department of Agriculture and under the United States Grain Standards to provide interested persons the Commerce was ceasing official Act, as amended (Act): Kansas Grain opportunity to present comments on the inspection services, effective June 30, Inspection Service, Inc. (Kansas); Minot Frankfort, Indianapolis, and Virginia 2003, and asked persons interested in official agencies. Commenters are providing official services in the Grain Inspection, Inc. (Minot); and Tri- encouraged to submit pertinent data Mississippi geographic area to submit State Grain Inspection Service, Inc. (Tri- concerning these official agencies, an application for designation. State). including information on the timeliness, Applications were due by February 28, EFFECTIVE DATE: July 1, 2003. cost, quality, and scope of services 2003. Subsequently, the Mississippi provided. All comments must be Department of Agriculture and ADDRESSES: USDA, GIPSA, Janet M. submitted to the Compliance Division at Commerce officials asked GIPSA to Hart, Chief, Review Branch, Compliance the above address. move their voluntary cancellation date Division, STOP 3604, Room 1647-S, Applications, comments, and other to May 31, 2003. 1400 Independence Avenue, SW., available information will be considered Memphis was the sole applicant for Washington, DC 20250–3604. in determining which applicant will be designation to provide official services FOR FURTHER INFORMATION CONTACT: designated. in the area specified in the January 29, 2003, Federal Register. GIPSA asked for Janet M. Hart at 202–720–8525, e-mail Authority: Pub. L. 94–582, 90 Stat. 2867, [email protected]. as amended (7 U.S.C. 71 et seq.). comments on Memphis in the March 24, 2003, Federal Register (68 FR 14179). SUPPLEMENTARY INFORMATION: Dated: May 19, 2003. This We received one favorable comment action has been reviewed and Donna Reifschneider, from an official agency manager by the determined not to be a rule or regulation Administrator, Grain Inspection, Packers and closing date, April 23, 2003. Stockyards Administration. GIPSA evaluated all available as defined in Executive Order 12866 and Departmental Regulation 1512–1; [FR Doc. 03–12853 Filed 5–21–03; 8:45 am] information regarding the designation therefore, the Executive Order and BILLING CODE 3410–EN–P criteria in Section 7(f)(l)(A) of the Act and, according to Section 7(f)(l)(B), Departmental Regulation do not apply determined that Memphis, main office to this action. DEPARTMENT OF AGRICULTURE in Memphis, Tennessee, is able to In the November 22, 2002, Federal provide official services in the Register (67 FR 70397), GIPSA asked Grain Inspection, Packers and geographic area specified in the January persons interested in providing official Stockyards Administration 29, 2003, Federal Register, for which services in the geographic areas [03–a–s] they applied, in addition to the areas assigned to the official agencies named they are already designated to serve. above to submit an application for Designation for the Mississippi Area The designation is effective June 1, designation. Applications were due by 2003, and ends March 31, 2006, AGENCY: January 2, 2003. Grain Inspection, Packers and concurrent with their present Stockyards Administration, USDA. designation. Interested persons may Kansas, Minot, and Tri-State were the ACTION: Notice. obtain official services by calling sole applicants for designation to provide official services in the entire SUMMARY: Grain Inspection, Packers and Memphis at 901–942–3216. area currently assigned to them, so Stockyards Administration (GIPSA) Authority: Pub. L. 94–582, 90 Stat. 2867, GIPSA did not ask for additional announces the designation of Memphis as amended (7 U.S.C. 71 et seq.). comments on them. Grain Inspection Service (Memphis) to Dated: May 19, 2003. provide official services under the Donna Reifschneider, GIPSA evaluated all available United States Grain Standards Act, as Administrator, Grain Inspection, Packers and information regarding the designation amended (Act). Stockyards Administration. criteria in Section 7(f)(l)(A) of the Act EFFECTIVE DATE: June 1, 2003. [FR Doc. 03–12852 Filed 5–21–03; 8:45 am] and, according to Section 7(f)(l)(B), ADDRESSES: USDA, GIPSA, Janet M. BILLING CODE 3410–EN–P determined that Kansas, Minot, and Tri- Hart, Chief, Review Branch, Compliance State are able to provide official services Division, STOP 3604, Room 1647–S, in the geographic areas specified in the 1400 Independence Avenue, SW., DEPARTMENT OF AGRICULTURE November 22, 2002, Federal Register, Washington, DC 20250–3604. for which they applied. Interested Grain Inspection, Packers and FOR FURTHER INFORMATION CONTACT: persons may obtain official services by Stockyards Administration Janet M. Hart at 202–720–8525, e-mail calling the telephone numbers listed [email protected]. [02–04–S] below. SUPPLEMENTARY INFORMATION: This Designation for the Kansas (KS), Minot action has been reviewed and (ND), and Cincinnati (OH) Areas determined not to be a rule or regulation as defined in Executive Order 12866 AGENCY: Grain Inspection, Packers and and Departmental Regulation 1512–1; Stockyards Administration, USDA.
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Official agency Headquarters location and telephone Designation start-end
Kansas ...... Topeka, KS 785–233–7063 ...... 07/01/2003–06/30/2006. Additional Service Locations: Colby, Concordia, Cummings, Dodge City, Hutchinson, Kansas City, Salina, and Wichita, KS; Commerce City and Haxtun, CO; and Sidney, NE. Minot ...... Minot, ND 701–838–1734 ...... 07/01/2003–06/30/2006. Tri-State ...... Cincinnnati, OH 513–251–6571 ...... 07/01/2003–03/30/2006.
Authority: Pub. L. 94–582, 90 Stat. 2867, to orally address the Committee. The Comments are invited on: (a) Whether as amended (7 U.S.C. 71 et seq.). meeting will be open to the public. this collection of information is Dated: May 19, 2003. Persons with disabilities who require necessary for the proper performance of Donna Reifschneider, alternative means of communication of the functions of the agency, including Administrator, Grain Inspection, Packers and program information or related whether the information will have Stockyards Administration. accommodations should contact Terri practical utility; (b) the accuracy of the [FR Doc. 03–12851 Filed 5–21–03; 8:45 am] Henry, at the telephone number listed agency’s estimate of the burden of the BILLING CODE 3410–ED–P above. collection of information including the Dated: May 19, 2003. validity of the methodology and Donna Reifschneider, assumptions used; (c) ways to enhance DEPARTMENT OF AGRICULTURE Administrator. the quality, utility, and clarity of the information to be collected; and (d) [FR Doc. 03–12854 Filed 5–21–03; 8:45 am] Grain Inspection, Packers and ways to minimize the burden of the Stockyards Administration BILLING CODE 3410–EN–U collection of information on respondents, including through the use Advisory Committee Meeting DEPARTMENT OF AGRICULTURE of appropriate automated, electronic, AGENCY: Grain Inspection, Packers and mechanical or other technological Stockyards Administration, USDA. Rural Utilities Service collection techniques or other forms of ACTION: Notice of advisory committee information technology. Comments may meeting. Information Collection Activity; be sent to F. Lamont Heppe, Jr., Comment Request Director, Program Development and SUMMARY: Pursuant to the Federal Regulatory Analysis, Rural Utilities AGENCY: Rural Utilities Service, USDA. Advisory Committee Act (5 U.S.C. App. Service, U.S. Department of Agriculture, II), this Constitutes notice of the ACTION: Notice and request for STOP 1522, 1400 Independence Ave., upcoming meeting of the Grain comments. SW., Washington, DC 20250–1522. Fax: Inspection Advisory Committee (‘‘the (202) 720–4120. Committee’’). SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (44 Title: 7 CFR Part 1738, Rural DATES: June 3, 2003, 7:30 a.m. to 5 p.m.; U.S.C. chapter 35, as amended), the Broadband Loan and Loan Guarantee and June 4, 2003, 7:30 a.m. to 12 p.m. Rural Utilities Service (RUS) invites Type of Request: Revision of a ADDRESSES: The advisory committee comments on this information currently approved information meeting will take place at the Embassy collection for which RUS intends to collection. Suites Hotel-Kansas City Country Club request approval from the Office of Abstract: The Rural Utilities Service Plaza, 220 West 43rd Street, Kansas Management and Budget (OMB). City, MO. (RUS) amended its regulations in order Requests to address the Committee at DATES: Comments on this notice must be to establish the Rural Broadband Access the meeting or written comments may received by July 21, 2003. Loan and Loan Guarantee Program as be sent to: Administrator, GIPSA, U.S. FOR FURTHER INFORMATION CONTACT: F. authorized by the Farm Security and Department of Agriculture, 1400 Lamont Heppe, Jr., Director, Program Rural Investment Act of 2002 (Pub. L. Independence Avenue, SW., STOP Development and Regulatory Analysis, 101–171) (2002 Act). Section 6103 of the 3601, Washington, DC 20250–3601. Rural Utilities Service, 1400 Farm Security and Rural Investment Act Requests and comments may also be Independence Ave., SW., STOP 1522, of 2002 amended the Rural Faxed to (202) 205–9237. Room 4036, South Building, Electrification Act of 1936, as amended FOR FURTHER INFORMATION CONTACT: Ms. Washington, DC 20250–1522. (RE Act), to add Title VI, Rural Terri Henry, (202) 205–8281 Telephone: (202) 720–9550. Fax: (202) Broadband Access, to provide loans and (telephone); (202) 205–9237 (facsimile). 720–4120. loan guarantees to fund the cost of SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION: The Office construction, improvement, or purpose of the Committee is to provide of Management and Budget’s (OMB) acquisition of facilities and equipment advice to the Administrator of the Grain regulation (5 CFR part 1320) for the provision of broadband service Inspection, Packers and Stockyards implementing provisions of the in eligible rural communities. The rule Administration with respect to the Paperwork Reduction Act of 1995 (Pub. prescribes the types of loans available, implementation of the U.S. Grain L. 104–13) requires that interested facilities financed, and eligible Standards Act (7 U.S.C. 71 et seq.). members of the public and affected applicants, as well as minimum credit The agenda will include financial agencies have an opportunity to support requirements to be considered status, general program plans, and comment on information collection and for a loan. In addition, the rule wheat end-use functionality research. recordkeeping activities (see 5 CFR prescribes the process through which Public participation will be limited to 1320.8(d)). This notice identifies an RUS will consider applicants under the written statements, unless permission is information collection that RUS is priority consideration and the state received from the Committee Chairman submitting to OMB for reinstatement. allocations required in Title VI.
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This information collection is being The application to expand FTZ 226 is DEPARTMENT OF COMMERCE revised to include only those hours approved, subject to the Act and the Board’s associated with the pre-loan procedures. regulations, including Section 400.28, and Foreign-Trade Zones Board further subject to the Board’s standard 2,000- Estimate of Burden: Public reporting [Order No. 1274] burden for this collection of information acre activation limit for the overall zone is estimated to average 98 hour per project. Termination of Foreign-Trade Subzone response. Signed at Washington, DC, this 14th day of 9C; Honolulu, HI Respondents: Businesses, not-for- May 2003. Pursuant to the authority granted in profit institutions and others. Jeffrey A. May, Estimated Number of Respondents: the Foreign-Trade Zones Act of June 18, 300. Acting Assistant Secretary of Commerce for 1934, as amended (19 U.S.C. 81a–81u), Estimated Number of Responses per Import Administration, Alternate Chairman, and the Foreign-Trade Zone Board Foreign-Trade Zones Board. Respondent: 11. Regulations (15 CFR part 400,) the Estimated Total Annual Burden on Attest: Foreign-Trade Zones Board has adopted Respondents: 28,475 hours. Dennis Puccinelli, the following order: Copies of this information collection Executive Secretary. Whereas, on July 26, 1985, the Foreign- can be obtained from Dawn Wolfgang, [FR Doc. 03–12880 Filed 5–21–03; 8:45 am] Trade Zones Board issued a grant of authority to the State of Hawaii Department of Program Development and Regulatory BILLING CODE 3510–DS–P Analysis, at (202) 720–0812. Fax: (202) Business, Economic Development & Tourism 720–4120. (the State), authorizing the establishment of Foreign-Trade Subzone 9C at the Dole All responses to this notice will be DEPARTMENT OF COMMERCE Packaged Foods Company plant in Honolulu, summarized and included in the request Hawaii (Board Order 308, 50 FR 31210, for OMB approval. All comments will Foreign-Trade Zone Board August 1, 1985); also become a matter of public record. Whereas, the State advised the Board on June 18, 2002 (FTZ Docket 5–2003), that zone Dated: May 15, 2003. [Order No. 1275] procedures were no longer needed at the Hilda Gay Legg, facility and requested voluntary termination Administrator, Rural Utilities Service. Termination of Foreign-Trade Subzone of Subzone 9C; [FR Doc. 03–12855 Filed 5–21–03; 8:45 am] 25A, Weston, FL Whereas, the request has been reviewed by the FTZ Staff and Customs officials and BILLING CODE 3410–15–U Pursuant to the authority granted in approval has been recommended; the Foreign-Trade Zones Act of June 18, Now, therefore, the Foreign-Trade Zones Board terminates the subzone status of DEPARTMENT OF COMMERCE 1934, as amended (19 U.S.C. 81a–81u), Subzone 9C, effective this date. and the Foreign-Trade Zone Board Regulations (15 CFR part 400,) the Signed at Washington, DC, this 14th day of Foreign-Trade Zones Board May, 2003. Foreign-Trade Zones Board has adopted [Order No. 1276] Jeffrey A. May, the following order: Acting Assistant Secretary of Commerce for Expansion and Reorganization of Whereas, on December 23, 1996, the Import Administration, Alternate Chairman, Foreign-Trade Zone 226 Merced, Foreign-Trade Zones Board issued a grant of Foreign-Trade Zones Board. Madera, Fresno and Tulare Counties, authority to the Port Everglades Department [FR Doc. 03–12878 Filed 5–21–03; 8:45 am] CA of Broward County (the Port), authorizing the BILLING CODE 3510–DS–P establishment of Foreign-Trade Subzone 25A Pursuant to its authority under the at the Federal Mogul Corporation plant in Foreign-Trade Zones Act of June 18, Weston, Florida (Board Order 860, 62 FR DEPARTMENT OF COMMERCE 1934, as amended (19 U.S.C. 81a-81u), 1314, 1/9/97); the Foreign-Trade Zones Board (the Whereas, the Port advised the Board on Foreign-Trade Zones Board Board) adopts the following Order: July 22, 2002 (FTZ Docket 7–2003), that zone [Docket 24–2003] Whereas, the County of Merced, California, procedures were no longer needed at the grantee of Foreign-Trade Zone 226, submitted facility and requested voluntary termination Foreign-Trade Zone 43—Battle Creek, an application to the Board for authority to of Subzone 25A; MI; Application for Subzone; Perrigo expand and reorganize FTZ 226 to relocate Whereas, the request has been reviewed by Company (Pharmaceutical Products); Site 2 (251 acres) to the Mid-State 99 the FTZ Staff and Customs officials and Distribution Center, to expand Site 10 to Allegan and Muskegon Counties, MI approval has been recommended; include a temporary area (25 acres) at the Now, therefore, the Foreign-Trade Zones An application has been submitted to Fresno Yosemite International Airport and to the Foreign-Trade Zones Board (the delete certain parcels/sites from the zone Board terminates the subzone status of plan, within and adjacent to the Fresno Subzone 25A, effective this date. Board) by the City of Battle Creek, Customs port of entry area (FTZ Docket 33– Michigan, grantee of FTZ 43, requesting Signed at Washington, DC, this 14th day of special-purpose subzone status for the 2002; filed 8/26/02); May 2003. Whereas, notice inviting public comment pharmaceutical manufacturing and was given in the Federal Register (67 FR Jeffrey A. May, distribution facilities of Perrigo 56984, 9/6/02) and the application has been Acting Assistant Secretary of Commerce for Company (Perrigo) at locations in processed pursuant to the FTZ Act and the Import Administration, Alternate Chairman, Allegan and Muskegon Counties, Board’s regulations; and, Foreign-Trade Zone Board. Michigan. The application was Whereas, the Board adopts the findings *COM048*[FR Doc. 03–12879 Filed 5–21– submitted pursuant to the provisions of and recommendations of the examiner’s 03; 8:45 am] report, and finds that the requirements of the the Foreign-Trade Zones Act, as FTZ Act and the Board’s regulations are BILLING CODE 3510–DS–P amended (19 U.S.C. 81a–81u), and the satisfied, and that the proposal is in the regulations of the Board (15 CFR part public interest; 400). It was formally filed on May 13, Now, therefore, the Board hereby orders: 2003.
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Perrigo’s Michigan operation is able to choose the duty rates that apply DEPARTMENT OF COMMERCE comprised of five sites in Allegan and to the finished products (primarily duty- Muskegon Counties (Site 5 only): Site 1 free), rather than the duty rates that Foreign-Trade Zones Board (119,700 sq. ft. on 4.5 acres)—Plant #1, would otherwise apply to the foreign- located at 117 Water Street, Allegan; sourced materials noted above (duty- [Order No. 1273] Site 2 (133 acres)—Eastern Avenue Site, free to 10.9 percent). At the outset, zone located at Hooker Road and Eastern savings would primarily involve Grant of Authority for Subzone Status Avenue in Allegan; including Plant #4 choosing the finished product duty rate Bulova Corporation (Watch and Clock (198,597 sq. ft., with a possible on either bulk or dosage packaged Products), Woodside and Brooklyn, NY expansion of 100,000 sq. ft., on 4.6 pharmaceutical products (HTSUS 3003 acres), Plant #5 (323,568 sq. ft. with a and 3004, duty-free), instead of the duty Pursuant to its authority under the possible expansion of 100,000 sq. ft., on rates on aspirin (HTSUS 2918.22.1000, Foreign-Trade Zones Act of June 18, 7.4 acres), and Plant #7 (402,216, sq. ft. 1934, as amended (19 U.S.C. 81a–81u), on 9.23 acres); Site 3 (520,613 sq. ft. on 6.9%), acetaminophen (HTSUS 2924.29.6210, 6.5%), and ibuprofen the Foreign-Trade Zones Board (the 11.95 acres)—Allegan Logistics Center, Board) adopts the following order: located at 900 Industrial Center, (HTSUS 2916.39.1500, 6.5%). Certain Allegan; Site 4 (123,295 sq. ft., with a aspirin imports from China are subject Whereas, the Foreign-Trade Zones Act possible expansion of 200,000 sq. ft., on to anti-dumping/countervailing (AD/ provides for ‘‘* * * the establishment * * * 2.8 acres)—Airport Center, located at CVD) duties. The application indicates of foreign-trade zones in ports of entry of the 1761 Airport Court, Holland; and, Site that the savings from zone procedures United States, to expedite and encourage 5 (87,048 sq. ft. on 2 acres)—North Labs, will help improve the plant’s foreign commerce, and for other purposes,’’ located at 8060 Whitbeck Road, international competitiveness. and authorizes the Foreign-Trade Zones Board to grant to qualified corporations the Montague, Muskegon County. In accordance with the Board’s The facilities (2,800 employees) privilege of establishing foreign-trade zones regulations, a member of the FTZ Staff produces over-the-counter (OTC) in or adjacent to U.S. Customs ports of entry; has been designated examiner to pharmaceutical and nutritional Whereas, the Board’s regulations (15 CFR products. Foreign-sourced materials will investigate the application and report to Part 400) provide for the establishment of account for some 14–50 percent of the Board. special-purpose subzones when existing zone finished product value, and include Public comment is invited from facilities cannot serve the specific use items from the following general interested parties. Submissions (original involved, and when the activity results in a categories: Animal or vegetable oils, and 3 copies) shall be addressed to the significant public benefit and is in the public chemically pure sugars, protein Board’s Executive Secretary at one of interest; concentrates, natural magnesium the following addresses: Whereas, the City of New York, grantee of phosphates and carbonates, petroleum Foreign-Trade Zone 1, has made application 1. Submissions Via Express/Package jelly, paraffin and waxes, other to the Board for authority to establish special- Delivery Services: Foreign-Trade-Zones inorganic acids or compounds of purpose subzone status at the watch and nonmetals, artificial corundum, Board, U.S. Department of Commerce, clock warehousing/distribution/repair aluminum oxide, aluminum hydroxide, Franklin Court Building—Suite 4100W, facilities of Bulova Corporation, located in acyclic hydrocarbons, derivatives of 1099 14th St., NW., Washington, DC Woodside and Brooklyn, New York (FTZ phenols or peroxides, ethers and ether- 20005; or Docket 37–2002, filed 9/23/02); alcohols, acetals and hemiacetals, 2. Submissions Via the U.S. Postal Whereas, notice inviting public comment has been given in the Federal Register (67 FR aldehydes and derivatives, ketone Service: Foreign-Trade-Zones Board, 61849, 10/2/02)); and, function compounds, phosphoric esters U.S. Department of Commerce, FCB— and their salts, esters of other organic Whereas, the Board adopts the findings Suite 4100W, 1401 Constitution Ave., and recommendations of the examiner’s acids, amine function compounds, NW., Washington, DC 20230. oxygen function compounds, quaternary report, and finds that the requirements of the ammonium salts, carboxymide function The closing period for their receipt is FTZ Act and Board’s regulations are satisfied, compounds, nitrile compounds, diazo- [60 days from date of publication]. and that approval of the application is in the compounds, organic derivatives of Rebuttal comments in response to public interest; hydrazine, compounds of other nitrogen material submitted during the foregoing Now, therefore, the Board hereby grants function, organo-sulfur compounds, period may be submitted during the authority for subzone status at the watch and clock products warehousing/distribution/ heterocyclic compounds, sulfonamides, subsequent 15-day period (to August 5, repair facilities of Bulova Corporation, provitamins, hormones, glycosides, 2003). located in Woodside and Brooklyn, New vegetable alkaloids, antibiotics, A copy of the application and York (Subzone 1B), at the locations described medicaments in bulk or in measured accompanying exhibits will be available in the application, and subject to the FTZ Act doses, synthetic coloring matter, color for public inspection at the Office of the and the Board’s regulations, including lakes, organic surface active products Foreign-Trade Zones Board’s Executive § 400.28. for use in soap, dextrines and modified Secretary at address Number 1 listed starches, chemical products not Signed at Washington, DC, this 14th day of above, and at the U.S. Department of provided elsewhere, vinyl acetate May 2003. Commerce Export Assistance Center, polymers, acrylic polymers, cellulose, Jeffrey A. May, and natural polymers, such as alginic 401 W. Fulton St., Suite 309–C, Grand Rapids, Michigan 49504. Acting Assistant Secretary of Commerce for acid. Import Administration, Alternate Chairman, Zone procedures would exempt Dated: May 14, 2003. Foreign-Trade Zones Board. Perrigo from Customs duty payments on Dennis Puccinelli, [FR Doc. 03–12881 Filed 5–21–03; 8:45 am] foreign materials used in production for Executive Secretary. BILLING CODE 3510–DS–U export. Some two percent of the plant’s shipments are currently exported. On [FR Doc. 03–12877 Filed 5–21–03; 8:45 am] domestic sales, the company would be BILLING CODE 3510–DS–P
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DEPARTMENT OF COMMERCE refunded any cash deposits paid by Administrative Review: Fresh Atlantic Marine Harvest (Chile) S.A. (Marine Salmon from Chile, 66 FR 42505 Foreign-Trade Zones Board Harvest) between the preliminary (August 13, 2001) (Salmon II). [Order No. 1277] results of the changed circumstances On October 12, 2001, Marine Harvest review and the implementation of the filed a complaint with the Court Expansion of Foreign-Trade Zone 84; instructions to the U.S. Bureau of challenging certain aspects of the Houston, TX Customs and Border Protection Department’s preliminary and final (Customs) issued after the final results results of the changed circumstances Pursuant to its authority under the of the changed circumstances review. In review. In addition, on March 19, 2002, Foreign-Trade Zones Act of June 18, addition, the Department determined Marine Harvest filed a Motion for 1934, as amended (19 U.S.C. 81a–81u), that the post-merger Marine Harvest was Judgment Upon the Agency Record. the Foreign-Trade Zones Board (the the successor-in-interest to both the pre- On October 31, 2002, the Court issued Board) adopts the following order: merger Marine Harvest and the former its remand order, in which it held that Whereas, the Port of Houston Authority, Pesquera Mares Australes, Ltda. (Mares the imposition of a cash deposit grantee of Foreign-Trade Zone 84, submitted Australes). simultaneously with publication of the an application to the Board for authority to initiation and preliminary results in a EFFECTIVE DATE: May 22, 2003. expand FTZ 84 to include the Katoen Natie changed circumstances review, without FOR FURTHER INFORMATION CONTACT: Gulf Coast site (72 acres) on a permanent prior notice, was not in accordance with basis and to restore FTZ status to the Bulk Constance Handley or Carol Henninger, law, and ordered the Department to Materials Handling plant (97 acres) on the at (202) 482–0631 or (202) 482–3003, refund the cash deposits in a timely Houston Ship Channel, within the Houston- respectively; AD/CVD Enforcement, manner. In addition, the Court held that Galveston Customs port of entry area (FTZ Office 5, Group II, Import Docket 36–2002; filed 9/12/02); the Department’s determination that Administration, International Trade Marine Harvest is a new entity was Whereas, notice inviting public comment Administration, U.S. Department of was given in the Federal Register (67 FR neither supported by substantial 59250, 9/20/02) and the application has been Commerce, 14th Street & Constitution evidence nor in accordance with law, processed pursuant to the FTZ Act and the Avenue, NW., Washington, DC 20230. and ordered that, on remand, the Board’s regulations; and, SUPPLEMENTARY INFORMATION: Department reassess its successor-in- Whereas, the Board adopts the findings Background interest analysis. See Marine Harvest and recommendations of the examiner’s (Chile) S.A. v. United States, Slip Op. report, and finds that the requirements of the On August 28, 2000, the Department FTZ Act and the Board’s regulations are 02–134 (October 31, 2002). published in the Federal Register the Pursuant to the Court’s remand order, satisfied, and that the proposal is in the preliminary results of the changed public interest; the Department issued the final results Now, therefore, the Board hereby orders: circumstances antidumping duty review of redetermination on January 17, 2003. The application to expand FTZ 84 is with respect to the antidumping duty In those results, the Department approved, subject to the Act and the Board’s order on fresh Atlantic salmon from determined that the post-merger Marine regulations, including Section 400.28. Chile. See Notice of Initiation and Harvest is the successor-in-interest to Signed at Washington, DC, this 14th day of Preliminary Results of Changed both the pre-merger Marine Harvest and May 2003. Circumstances Antidumping Duty to the former Mares Australes and stated Jeffrey A. May, Review: Fresh Atlantic Salmon from that it would refund any deposits paid Chile, 65 FR 52065 (Aug. 28, 2000) Acting Assistant Secretary of Commerce for by Marine Harvest between the Changed Import Administration, Alternate Chairman, (Changed Circumstances Preliminary). Circumstances Preliminary and the Foreign-Trade Zones Board. In those preliminary results, the implementation of the Customs [FR Doc. 03–12882 Filed 5–21–03; 8:45 am] Department conducted a successor-in- instructions issued after the Changed interest analysis and concluded that the BILLING CODE 3510–DS–U Circumstances Final. post-merger Marine Harvest was a new On March 4, 2003, the Court ordered entity. The Department assigned the that the Department’s January 17, 2003, DEPARTMENT OF COMMERCE post-merger Marine Harvest a cash remand results be sustained in their deposit rate of 2.23 percent, the cash entirety, and thus dismissed the case. International Trade Administration deposit rate of Mares Australes. See Marine Harvest (Chile) S.A. v. On August 13, 2001, the Department [A–337–803] United States, Slip Op. 03–22 (March 4, published the final results of the 2003). The Court’s ruling constitutes a Fresh Atlantic Salmon From Chile: changed circumstances review. See ‘‘final and conclusive’’ decision in this Amended Final Results of Notice of Final Results of Changed case which is ‘‘not in harmony’’ with Antidumping Duty Changed Circumstances Antidumping Duty the Department’s original Circumstances Review in Accordance Review: Fresh Atlantic Salmon from determination. Accordingly, we have With Court Decision Chile, 66 FR 42506 (August 13, 2001) prepared these amended final results. (Changed Circumstances Final). In those AGENCY: Import Administration, final results, the Department continued Amended Final Results of Changed International Trade Administration, to find that the post-merger Marine Circumstances Review Department of Commerce. Harvest was a new entity. The As a result of the Department’s SUMMARY: On January 17, 2003, the Department assigned Marine Harvest a redeterminations on court remand, we Department of Commerce (the zero cash deposit rate, which was the have determined that Marine Harvest is Department) issued its final results of rate calculated for the combined entity the successor-in-interest to the pre- redetermination pursuant to the remand of the pre-merger Marine Harvest and merger Marine Harvest and the former order of the U.S. Court of International the former Mares Australes in the Mares Australes and have refunded any Trade (the Court) in Marine Harvest second administrative review. See cash deposits paid by Marine Harvest (Chile) S.A. v. United States, Slip Op. Notice of Final Results of Antidumping between the Changed Circumstances 02–134 (October 31, 2002). Pursuant to Duty Administrative Review and Partial Preliminary and the implementation of the remand order, the Department Rescission of Antidumping Duty Customs instructions issued after the
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Changed Circumstances Final. These Inc., Gerlin, Inc., and Taylor Forge the publication of the preliminary deposits were paid on entries covered Stainless, Inc. (‘‘petitioners’’) requested results. by the third period of review, for which an antidumping duty administrative Dated: May 16, 2003. the Department recently published its review for the following companies: Ta Barbara E. Tillman, final results. See Notice of Final Results Chen Stainless Pipe Co., Ltd. (‘‘Ta Acting Deputy Assistant Secretary for Import of Antidumping Duty Administrative Chen’’), Liang Feng Stainless Steel Administration, Group III. Fitting Co., Ltd. (‘‘Liang Feng’’), and Review, Final Determination to Revoke [FR Doc. 03–12876 Filed 5–21–03; 8:45 am] the Order in Part, and Partial Rescission Tru-Flow Industrial Co., Ltd. (‘‘Tru- BILLING CODE 3510–DS–P of Antidumping Duty Administrative Flow’’) for the period June 1, 2001, Review: Fresh Atlantic Salmon from through May 31, 2002. On June 28, Chile, 68 FR 6878 (February 11, 2003). 2002, Ta Chen requested an DEPARTMENT OF COMMERCE We are issuing and publishing these administrative review of its sales to the results and notice in accordance with United States during the period of International Trade Administration sections 751(a)(1) and 777(i) of the review (‘‘POR’’). On July 24, 2002, the Tariff Act of 1930, as amended. Department published in the Federal North American Free-Trade Agreement Register a notice of initiation of this (NAFTA), Article 1904 NAFTA Panel Dated: May 15, 2003. antidumping duty administrative review Reviews; Decision of the Panel Jeffrey May, for the period June 1, 2001, through May AGENCY: Acting Assistant Secretary for Import 31, 2002. See Notice of Initiation of NAFTA Secretariat, U.S. Administration. Antidumping and Countervailing Duty Section, International Trade [FR Doc. 03–12875 Filed 5–21–03; 8:45 am] Administrative Reviews and Request for Administration, Department of BILLING CODE 3510–DS–P Revocation In Part, 67 FR 48435 (July Commerce. 24, 2002). On March 3, 2003, the ACTION: Notice of decision of NAFTA Department extended the time limit for panel. DEPARTMENT OF COMMERCE the preliminary results of this SUMMARY: On April 28, 2003 the NAFTA International Trade Administration administrative review. See Stainless Panel issued its decision on the re- Steel Butt-Weld Pipe Fittings from determination on remand in the matter [A–583–816] Taiwan: Extension of Time Limit for the of Pure Magnesium from Canada, Preliminary Results of the Antidumping Stainless Steel Butt-Weld Pipe Fittings Secretariat File No. USA–CDA–00– Duty Administrative Review, 68 FR 9977 1904–06. From Taiwan: Extension of Time Limit (March 3, 2003). The preliminary results FOR FURTHER INFORMATION CONTACT: for the Preliminary Results of the are currently due no later than June 2, Antidumping Duty Administrative 2003. Caratina L. Alston, U.S. Secretary, Review NAFTA Secretariat, Suite 2061, 14th Extension of Time Limit for Preliminary and Constitution Avenue, Washington, AGENCY: Import Administration, Results DC 20230, (202) 482–5438. International Trade Administration, Section 751(a)(3)(A) of the Tariff Act SUPPLEMENTARY INFORMATION: Chapter Department of Commerce. of 1930, as amended (‘‘the Act’’), states 19 of the North American Free-Trade ACTION: Notice of extension of time limit that the administering authority shall Agreement (‘‘Agreement’’) establishes a for the preliminary results of make a preliminary determination mechanism to replace domestic judicial antidumping duty administrative within 245 days after the last day of the review of final determinations in review. month in which occurs the anniversary antidumping and countervailing duty of the date of publication of the order, cases involving imports from a NAFTA EFFECTIVE DATE: May 22, 2003. finding, or suspension agreement for country with review by independent FOR FURTHER INFORMATION CONTACT: Jon which the review under Section binational panels. When a Request for Freed, AD/CVD Enforcement, Group III, 751(a)(1) is requested. If it is not Panel Review is filed, a panel is Office 9, Import Administration, practicable to complete the review established to act in place of national International Trade Administration, within the foregoing time, the courts to review expeditiously the final U.S. Department of Commerce, 14th administering authority may extend that determination to determine whether it Street and Constitution Avenue, NW., 245 day period to 365 days. Completion conforms with the antidumping or Washington DC 20230; telephone: (202) of the preliminary results within the 245 countervailing duty law of the country 482–3818. day period is impracticable for the that made the determination. following reasons: (1) This review Under Article 1904 of the Agreement, Background involves certain complex Constructed which came into force on January 1, On June 5, 2002, the Department of Export Price (‘‘CEP’’) adjustments 1994, the Government of the United Commerce (‘‘Department’’) published a including, but not limited to CEP profit States, the Government of Canada and notice of opportunity to request an and CEP offset; (2) this review involves the Government of Mexico established administrative review of the complex cost issues with respect to Rules of Procedure for Article 1904 Antidumping Duty Order on Stainless subcontractors’ costs of production; and Binational Panel Reviews (‘‘Rules’’). Steel Butt-Weld Pipe Fittings from (3) this review involves a complex These Rules were published in the Taiwan for the period June 1, 2001, affiliation issue. Federal Register on February 23, 1994 through May 31, 2002. See Notice of Because it is not practicable to (59 FR 8686). The panel review in this Opportunity to Request Administrative complete this review within the time matter was conducted in accordance Review of Antidumping or specified under the Act, we are with these Rules. Countervailing Duty Order, Finding, or extending the due date for the Background Information: On October Suspended Investigation, 67 FR 38640 preliminary results by 28 days until 15, 2002, the Panel issued a remand (June 5, 2002). On June 25, 2002, June 30, 2003, in accordance with decision in the matter of Pure Markovitz Enterprises, Inc. (Flowline section 751(a)(3)(A) of the Act. The final Magnesium from Canada, with Division), Shaw Alloy Piping Products results continue to be due 120 days after instructions to the Department of
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Commerce to issue a determination on —One-Day Panel on e-Authentication: DEPARTMENT OF COMMERCE remand consistent with the instructions • Session 1—e-Authentication National Oceanic and Atmospheric set forth in the Panel’s decision. The Systems for Government: Administration Panel instructed the DOC to provide a Understanding the Benefits and report within 45 days detailing how it Risks of Existing and Emerging would comply with their instructions Announcement of Intent To Initiate the Models and to complete the remand (within 60 Process To Consider Marine Reserves days) not later than January 28, 2003. • Session 2—Security and Privacy in the Channel Islands National Marine The Department of Commerce issued Issues in e-Authentication Sanctuary; Intent To Prepare a Draft Environmental Impact Statement its remand determination on January 28, —Panel Discussion on Accuracy 2003. Requirements for the FBI’s National AGENCY: Marine Sanctuaries Division Panel Decision: The Panel, in its Crime Information Center (NCIC) (MSD), National Ocean Service (NOS), decision of April 28, 2003, ordered the National Oceanic and Atmospheric —Briefing on Activities of the National Department to revoke the antidumping Administration (NOAA), Department of Science Foundation’s Trusted order. Commerce (DOC). Computing Program Dated: May 8, 2003. ACTION: Notice. Caratina L. Alston, —Briefing on Information Security SUMMARY: In accordance with the U.S. Secretary, NAFTA Secretariat. Professionals Certification Programs National Marine Sanctuaries Act, as —Agenda Development for September [FR Doc. 03–12883 Filed 5–21–03; 8:45 am] amended, (NMSA) (16 U.S.C. 1431 et BILLING CODE 3510–GT–M 2003 ISPAB Meeting seq.), NOAA’s National Marine —Wrap-Up Sanctuary Program (NMSP) is considering the establishment of a DEPARTMENT OF COMMERCE Note that agenda items may change without notice because of possible network of marine reserves within the Channel Islands National Marine National Institute of Standards and unexpected schedule conflicts of Sanctuary (CINMS or Sanctuary) to Technology presenters. maintain the natural biological Announcing a Meeting of the Public Participation: The Board communities, and to protect, and, where Information Security and Privacy agenda will include a period of time, appropriate, restore and enhance natural Advisory Board not to exceed thirty minutes, for oral habitats, populations, and ecological comments and questions from the processes. AGENCY: National Institute of Standards public. Each speaker will be limited to Marine reserves are one of a variety of and Technology. five minutes. Members of the public resource management tools used to ACTION: Notice of meeting who are interested in speaking are asked manage and protect marine resources. This action is being considered to SUMMARY: Pursuant to the Federal to contact the Board Secretariat at the complement the State of California’s Advisory Committee Act, 5 U.S.C. App., telephone number indicated below. In recent establishment of a network of notice is hereby given that the addition, written statements are invited marine reserves and protected areas Information Security and Privacy and may be submitted to the Board at any time. Written statements should be within the State waters of the CINMS. Advisory Board (ISPAB) will meet The NMSP will prepare an directed to the ISPAB Secretariat, Tuesday, June 10, 2003, from 8:30 a.m. environmental impact statement which Information Technology Laboratory, 100 until 5 p.m., Wednesday, June 11, 2003, will examine a range of management from 8:30 a.m. until 5 p.m. and on Bureau Drive, Stop 8930, National and regulatory alternatives associated Thursday, June 12, from 8:30 a.m. until Institute of Standards and Technology, with consideration of marine reserves 3 p.m. All sessions will be open to the Gaithersburg, MD 20899–8930. It would within the Sanctuary. The NMSP will public. The Advisory Board was be appreciated if 35 copies of written conduct three public scoping meetings established by the Computer Security material were submitted for distribution during the scoping period to gather Act of 1987 (Pub. L. 100–235) and to the Board and attendees no later than information and other comments from amended by the Federal Information June 9, 2003. Approximately 15 seats individuals, organizations, and Security Management Act of 2002 (Pub. will be available for the public and government agencies on the scope, types L. 107–347) to advise the Secretary of media. and significance of issues related to Commerce and the Director of NIST on consideration of marine reserves in the security and privacy issues pertaining to FOR FURTHER INFORMATION CONTACT: Ms. Sanctuary. The dates and locations of federal computer systems. Details Joan Hash, Board Secretariat, the public scoping meetings are listed regarding the Board’s activities are Information Technology Laboratory, below. available at http://csrc.nist.gov/csspab/. National Institute of Standards and DATES: Written comments must be DATES: The meeting will be held on June Technology, 100 Bureau Drive, Stop received on or before July 23, 2003. 10, 2003, from 8:30 a.m. until 5 p.m., 8930, Gaithersburg, MD 20899–8930, June 11, 2003, from 8:30 a.m. until 5 telephone: (301) 975–3357. ADDRESSES: Written comments may be p.m., and June 12, 2003, from 8:30 a.m. sent to the Channel Islands National Dated: May 15, 2003. until 3 p.m. Marine Sanctuary, attn. Sean Hastings, Arden L. Bement, Jr., ADDRESSES: The meeting will take place 113 Harbor Way, Suite 150, Santa at the DoubleTree Hotel and Executive Director. Barbara, California 93109, by fax to Meeting Center, 1750 Rockville Pike, [FR Doc. 03–12786 Filed 5–21–03; 8:45 am] (805) 568–1582, or by electronic mail to [email protected]. Comments Rockville, Maryland. BILLING CODE 3510–CN–P will be available for public review at the Agenda same address. —Welcome and Overview FOR FURTHER INFORMATION CONTACT: —ISPAB Work Plan Updates Sean Hastings, (805) 966–7107, Ext. 472.
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SUPPLEMENTARY INFORMATION: The Process and recommended to the FGC a Governor objects during the requisite Sanctuary was designated in September network of reserves and protected areas review period. 1980, and consists of 1,252 square that would include approximately 25% For a complete history of the Channel nautical miles of open ocean and near of the Sanctuary. Islands Marine Reserves Process and the shore habitat approximately 25 miles off The CDFG prepared environmental State’s Environmental Documents the coast of Santa Barbara, California, review documents pursuant to the please see http://www.dfg.ca.gov/mrd/ encompassing the waters surrounding California Environmental Quality Act channel_islands/ and/or http:// San Miguel, Santa Rosa, Santa Cruz, (CEQA), which included an analysis of www.cinms.nos.noaa.gov/marineres/ Anacapa and Santa Barbara Islands from a range of alternative reserves networks, main.html. The same information can mean high tide to six nautical miles including identifying the Sanctuary and also be obtained by contacting John offshore. The NMSP’s primary goal is CDFG recommended option as the Ugoretz with California Department of the protection of the Sanctuary’s natural preferred alternative. On October 23, Fish and Game, (805) 560–6758 and/or and cultural resources contained within 2002, the FGC approved the preferred the contact information below. its boundaries. The NMSP uses a variety alternative and the establishment of a The Sanctuary is also revising its 1983 of non-regulatory and regulatory network of marine reserves and Management Plan. A Final EIS and management measures to protect its protected areas within State waters of Management Plan are expected by the resources. The Sanctuary is an area of the Sanctuary (approximately 10%). The end of 2003. Please see http:// national significance because of its FGC decision was made based on the www.cinms.nos.noaa.gov/marineres/ exceptional natural beauty and marine culmination of the Channel Islands manplan.html for more information on and cultural resources. Marine Reserves Process and the CDFG this independent process. In April 1999, the Sanctuary and the and NOAA supported alternative for a California Department of Fish and Game Public Scoping Meetings: Dates and network of marine reserves in the Locations (CDFG) developed a joint Federal and Sanctuary. The State’s network went State partnership to consider into effect on April 9, 2003. The NMSP will conduct three public establishing marine reserves within the The NMSP is initiating a process to scoping meetings to gather information Sanctuary. Marine reserves are one of a consider the establishment of marine and other oral or written comments variety of resource management tools reserves within the Sanctuary to from individuals, organizations, and used to manage and protect marine complement the State’s network of government agencies on the scope, types resources. The Channel Islands Marine reserves and protected areas. This and significance of issues related to Reserves Process was initiated in July of review process will build upon the consideration of marine reserves in the 1999, when the Sanctuary Advisory nearly four years of work to date on this Sanctuary. These meetings will be Council (SAC) created a multi- matter, including the information and conducted in a format to maximize the stakeholder Marine Reserves Working analyses contained in the State’s CEQA opportunity for all attendees to provide Group (MRWG) to seek agreement on environmental documents. The NMSP public comment. The dates, times and the potential establishment of marine anticipates completion of the location of the meetings are as follows: reserves within the Sanctuary. Included (1) Thursday, June 5, 2003, 6:30–9 in the Channel Islands Marine Reserves environmental review process and concomitant documents will require p.m., Orvene S. Carpenter Community Process were a SAC designated Science Center, 550 Park Avenue Pt. Hueneme, Advisory Panel and a NOAA led Socio- approximately eighteen to twenty-four months. CA. economic Team made up of blue ribbon (2) Thursday, June 12, 2003, 6:30–9 scientists, academics and practitioners. The NMSP will prepare an environmental impact statement, p.m., Santa Barbara Public Library, Extensive scientific and socioeconomic Faulkner Gallery, 40 E. Anapamu Street, data were collected in support of the proposed regulations, and any proposed modifications to the Sanctuary’s Santa Barbara, CA. reserves process. From July 1999 to May (3) Friday, July 18, 2003, 1:30–4 p.m., 2001, the MRWG met monthly to designation document, as warranted. The environmental impact statement Four Points by Sheraton, 1050 Schooner receive, weigh, and integrate advice Drive, Ventura, CA. This meeting will from technical advisors and the public will examine a range of management and regulatory alternatives associated be held with the Sanctuary Advisory and to develop a recommendation for Council. the SAC. In May 2001, the results of the with consideration of marine reserves Channel Islands Marine Reserves within the Sanctuary. Any change to the Dated: May 16, 2003. Process were forwarded to the SAC, Sanctuary’s terms of designation will be Jamison S. Hawkins, including the MRWG consensus pursuant to the requirements of the Acting Assistant Administrator for Ocean agreements, areas of disagreement, National Marine Sanctuaries Act, Services and Coastal Zone Management. Science Panel advice and socio- including necessary consultations with [FR Doc. 03–12815 Filed 5–21–03; 8:45 am] economic analysis. A composite map Federal and State agencies, the Pacific BILLING CODE 3510–08–M with two reserve network options Fishery Management Council (PFMC), ranging from 12 to 29 percent of the and others, and submission of the Sanctuary was also forwarded. In June environmental impact statement, DEPARTMENT OF COMMERCE 2001, the SAC transmitted the full proposed regulations and any proposed public record of the MRWG and the changes to the designation document to National Oceanic and Atmospheric SAC to the CINMS and CDFG, and Congress, the Governor of the State of Administration charged the agencies with crafting a California, and the public for comment. [I.D. 050903A] final recommendation for the California Further, the PFMC will be provided the Fish and Game Commission (FGC). opportunity to prepare draft Sanctuary Marine Mammals; File No. 369–1440–01 Sanctuary and CDFG staff continued fishing regulations for the Exclusive to work with stakeholders in crafting a Economic Zone portion of the Sanctuary AGENCY: National Marine Fisheries recommendation. On August 24, 2001 for any marine reserve proposal. Finally, Service (NMFS), National Oceanic and the Sanctuary and CDFG forwarded the any change to a term of designation Atmospheric Administration (NOAA), results of the Channel Islands Reserves would not apply to State waters if the Commerce.
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ACTION: Issuance of permit amendment. Dated: May 13, 2003. Greek Ministry of National Economy Stephen L. Leathery, (hereinafter known as the SUMMARY: Notice is hereby given that Dr. Chief, Permits and Documentation Division, ‘‘Participants’’) entered into a Bruce R. Mate, Oregon State University, Office of Protected Resources, National Memorandum of Understanding (MOU) Newport, Oregon 97365–5296, has been Marine Fisheries Service. concerning technology cooperation with issued an amendment to Permit No. [FR Doc. 03–12886 Filed 5–21–03; 8:45 am] the Balkans, to be known as ‘‘The 369–1440–01 to take various species of BILLING CODE 3510–22–S United States-Greek Initiative for large whales and opportunistically take Technology Cooperation with the by Level B harassment other species of Balkans’’ (ITCB). A Joint Science and marine mammals, for purposes of DEPARTMENT OF COMMERCE Technology Cooperation Advisory scientific research. Council (hereinafter ‘‘the Joint ADDRESSES: The amendment and related Technology Administration Council’’) operates under the MOU. documents are available for review [Docket No.: 030423100–3100–01] The Participants recognize that upon written request or by appointment working together to foster collaborative in the following offices: The United States-Greek Initiative for and mutually beneficial technology Permits and Documentation Division, Technology Cooperation With the cooperation with countries in the Office of Protected Resources, NMFS, Balkans (ITCB)’s Joint Science and Balkan region will provide economic 1315 East-West Highway, Room 13705, Technology Cooperation Advisory benefits to the Balkan region, the United Silver Spring, MD 20910 (301/713– Council States and Greece. The goal of the 2289); Participants is to foster collaboration AGENCY: Technology Administration, among public and private entities in the Assistant Regional Administrator for Department of Commerce. Participants’ countries with public and Protected Resources, Northeast Region, ACTION: Notice; request for nominations private entities in the Balkan region in NMFS, One Blackburn Drive, for joint council member. order to enhance scientific and Gloucester, MA 01930–2298; phone technological capabilities in the Balkan (508)281–9346; fax (508)281–9371; and SUMMARY: The Technology region, enhance the relationship Assistant Regional Administrator for Administration invites nominations of between U.S. and Greek public and Protected Resources, Southeast Region, individuals for appointment to a private sector entities, and promote the NMFS, 9721 Executive Center Drive vacancy on the Joint Science and development of stable, free market North, St. Petersburg, FL 33702–2432; Technology Cooperation Advisory economies in the Balkan region. phone (813)570–5301; fax (813)570– Council established under a Emphasis is placed on both the fostering 5517. Memorandum of Understanding of the exchange of scientific and FOR FURTHER INFORMATION CONTACT: between the United States Department technical knowledge and personnel, and Ruth Johnson 301/713–2289. of Commerce and the Greek Ministry of on building private sector technology National Economy concerning capacities of Balkan ITCB member states SUPPLEMENTARY INFORMATION: On technology cooperation with the through partnership with U.S. and January 28, 2003, notice was published Balkans. The Technology Greek business. For the purposes of the in the Federal Register (68 FR 4178) Administration also invites nominations MOU, countries in the Balkan region that an amendment of Permit No. 369– for appointment of three alternate Joint that are currently members of the ITCB 1440–01, issued April 19, 1999 (64 FR Council members. The Technology are: Albania, Bulgaria, Romania and the 19135), had been requested by the Administration will consider all Former Yugoslavian Republic of above-named individual. The requested nominations received in response to this Macedonia. Membership may expand to amendment has been granted under the notice. other countries in the region that the authority of the Marine Mammal DATES: Nominations must be received at Participants may mutually agree to Protection Act of 1972, as amended (16 include. U.S.C. 1361 et seq.), the provisions of the address below by no later than June § 216.39 of the Regulations Governing 30, 2003. Cooperative Activities the Taking and Importing of Marine ADDRESSES: Please submit nominations Cooperative activities under this Mammals (50 CFR part 216), the to Ken Ferguson, ITCB Program Officer, MOU include: Coordinated and joint Endangered Species Act of 1973, as Office of Technology Policy, research and technology projects, amended (ESA; 16 U.S.C. 1531 et seq.), Technology Administration, U.S. studies, and investigations; joint and the regulations governing the Department of Commerce, Room 4411, technological courses, workshops, taking, importing, and exporting of 14th and Constitution Avenues, NW., conferences and symposia; exchanges of threatened and endangered fish and Washington, DC 20230. Nominations science and technology information and wildlife (50 CFR 222.226). may also be submitted by fax or e-mail documentation in the context of The amendment authorizes the to Ken Ferguson, ITCB Program Officer cooperative activities; exchanges of applicant to tag and biopsy sample fin at 202–219–3310 or scientists, specialists, and researchers; whales in international water in the [email protected] if followed up exchanges or sharing of equipment or Mediterranean Sea and extends the with a hard copy sent by mail or materials; and other forms of scientific expiration date through October 2004. courier. and technological cooperation that may Issuance of this amendment, as FOR FURTHER INFORMATION CONTACT: Ken be deemed appropriate. One of the goals required by the ESA was based on a Ferguson, ITCB Program Officer, is to create three-way partnerships finding that such permit (1) was applied telephone: 202–482–0150; fax: 202– between private and public technology for in good faith, (2) will not operate to 219–3310, e-mail: [email protected]. companies, non-governmental the disadvantage of the endangered organizations and other institutions species which is the subject of this Goals of the Memorandum of from Greece, the United States and permit, and (3) is consistent with the Understanding Balkan member states of the ITCB. purposes and policies set forth in On January 17, 1998, the United Cooperative activities should reflect section 2 of the ESA. States Department of Commerce and the technological strengths in the Unites
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States and Greece, be responsive to MOU and is discretionary with the U.S. COMMITTEE FOR THE scientific and technological needs in the Department of Commerce. Individuals IMPLEMENTATION OF TEXTILE Balkan member states, and should be chosen for membership will serve a AGREEMENTS structured to provide an appropriate term that best fits the needs and collaborative role for three way objectives of the Joint Council although Denial of Commercial Availability partnerships. the term’s duration is normally two- Request under the United States - Andean Trade Promotion and Drug Information on the Joint Council three years. Upon the completion of a U.S. member’s term, the U.S. Eradication Act (ATPDEA) For the purposes of implementing this MOU, the Participants have established Department of Commerce will either May 16, 2003. a Joint Science and Technology repeat this recruitment and selection AGENCY: The Committee for the Cooperation Advisory Council process or extend the member’s term as Implementation of Textile Agreements consisting of six members—three long as the member proves to work (CITA). designated by, and serving at the effectively on the Joint Council and his/ ACTION: Denial of the request alleging pleasure of the Government of Greece, her expertise is still needed. that certain cotton corduroy fabrics, for and three designated by and serving at Membership Criteria and Requirements use in apparel articles, cannot be the pleasure of the U.S. Department of supplied by the domestic industry in Commerce. Each participant may The U.S. members of the Joint Council commercial quantities in a timely designate alternate members. The Greek are eminent leaders, broadly manner under the ATPDEA. Secretariat for the ITCB is located at the representative of industry, academia or SUMMARY: On March 17, 2003 the Technology Park in Thessaloniki, government, who have experience in Greece. The U.S. Secretariat for the Chairman of CITA received a petition science and technology development, from Breaker Jeanswear/ARC ITCB is administered by Ashford technology diffusion, or international Associates of Cambridge, Massachusetts. International alleging that certain dyed technology collaboration. They shall be cotton corduroy fabrics (see Annex I for Responsibilities of Joint Council U.S. citizens. They shall be familiar product specifications), classified in Members and Alternates with the business climate and the status subheading 5801.22.90 of the The members of the Joint Council of technology and economic Harmonized Tariff Schedule of the carry out the following functions: development in Greece and the Balkans, United States (HTSUS), for use in 1. Recommend to the Participants with Greek and Balkan industry, and/or apparel articles including men’s and overall policies under the MOU. with Greek and Balkan academic boys’ jackets and pants, women’s and 2. Identify fields and forms of institutions. Members of the Joint girls’ jackets, dresses, skirts, shorts, and cooperation in accordance with the Council shall serve without pants, cannot be supplied by the goals and objectives of the MOU. compensation. domestic industry in commercial 3. Review, assess and make specific The U.S. Department of Commerce is quantities in a timely manner. It recommendations concerning requested that apparel of such fabrics be committed to equal opportunity in the cooperative activities. eligible for preferential treatment under workplace, and seeks a broad-based and 4. Prepare periodic reports concerning the ATPDEA. Based on currently diverse Joint Council membership. the Joint Council and cooperative available information, CITA has activities undertaken under the MOU Conflict of Interest determined that these subject fabrics for submission to the Participants. can be supplied by the domestic 5. Undertake such further functions as Nominees will be evaluated for their industry in commercial quantities in a may appropriately be approved by the ability to contribute to the goals and timely manner and therefore denies the Participants. objectives of the MOU. Nominees will request. 6. The Participants may designate be vetted in accordance with processes alternates to substitute for permanent EFFECTIVE DATE: May 22, 2003. established by the U.S. Department of council members at particular meetings or events, or to work on specific projects Commerce in February 1997, as soon as FOR FURTHER INFORMATION CONTACT: and initiatives. possible following tentative selection. Richard Stetson, International Trade 7. When appropriate, alternates shall The vetting system has three Specialist, Office of Textiles and cast votes in lieu of permanent components: (1) An internal review for Apparel, U.S. Department of Commerce, members. Respondents to this notice possible appearance of conflict (202) 482-3400. should indicate whether they are problems; (2) an external review for SUPPLEMENTARY INFORMATION: willing to serve as alternates, as possible appearance of problems; and Authority: Section 204 (b)(3)(B)(ii) of the permanent members, or as either to the (3) a recusal/ethics agreement review. ATPDEA, Presidential Proclamation 7616 of ITCB Joint Council. Dated: May 19, 2003. October 31, 2002, Executive Order 13277 of Meetings of the Joint Council November 19, 2002, and the United States Christian Israel, Trade Representative’s Notice of Further The Council meets every three to four Deputy Assistant Secretary for Technology Assignment of Functions of November 25, months, usually in Thessaloniki or Policy. 2002 (67 FR 71606). Athens, Greece, or as determined by the [FR Doc. 03–12833 Filed 5–21–03; 8:45 am] BACKGROUND: Participants. U.S. Council member’s BILLING CODE 3510–GN–P travel and living expenses associated The ATPDEA provides for quota- and with attending these meetings may be duty-free treatment for qualifying textile provided by a fund administered by the and apparel products. Such treatment is U.S. Secretariat for the ITCB. generally limited to products manufactured from yarns and fabrics Length of Service formed in the United States or a A U.S. member’s length of service on beneficiary country. The ATPDEA also the Joint Council is not stipulated in the provides for quota- and duty-free
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treatment for apparel articles that are timely manner. Breaker Jeanswear/ARC directly through IIPS at http://e- both cut (or knit-to-shape) and sewn or International’s request is denied. center.doe.gov/ by browsing opportunities by Program Office for otherwise assembled in one or more D. Michael Hutchinson, ATPDEA beneficiary countries from those solicitations issued by the Golden Acting Chairman, Committee for the Field Office. DOE will not issue hard fabric or yarn that is not formed in the Implementation of Textile Agreements. United States or a beneficiary country, copies of the solicitation. if it has been determined that such FOR FURTHER INFORMATION CONTACT: fabric or yarn cannot be supplied by the James McDermott, Contacting Officer, at domestic industry in commercial Annex I 215–656–6976 or electronically at quantities in a timely manner. Pursuant Product Specifica- [email protected]. tions: Responses to questions will be posted to Executive Order No. 13277 (67 FR 1. Dyed Cor- 70305) and the United States Trade duroy Fabric: on the DOE IIPS website. Representative’s Notice of Redelegation Fiber Com- 100 % cotton SUPPLEMENTARY INFORMATION: The of Authority and Further Assignment of position: Department of Energy’s MSR Initiative Functions (67 FR 71606), the President’s Fabric weight: 271 g/m2 (grams per square is an initiative to support State and meter) Local Partnerships who agree to install authority to determine whether yarns or Construction: Woven 20 x 45, 16s x 16s fabrics cannot be supplied by the 6 - 8 wales per centimeter solar energy systems on one million domestic industry in commercial 2. Dyed Cor- buildings in the United States (U.S.) by quantities in a timely manner under the duroy Fabric: 2010. This effort includes two types of Fiber Com- 98% cotton, 2% spandex ATPDEA is exercised by CITA. solar energy technology: (1) Solar position(s): electric (photovoltaic) systems that On March 17, 2003, the Chairman of 97% cotton, 3% spandex Fabric weight: 271g/m2 (grams per square produce electricity from sunlight, and CITA received a petition from Breaker meter) (2) solar thermal systems panels that Jeanswear/ARC International of Miami, Construction: Woven 20 x 45, 16s x 16s produce heat for domestic hot water, for Florida, alleging that certain dyed plus 70 denier (spandex) space heating or for heating swimming 6-8 wales per centimeter cotton corduroy fabrics, (see Annex I for pools. The Partnerships bring together product specifications), classified in [FR Doc. 03–12897 Filed 5–21–03; 8:45 am] business, government and community subheading 5801.22.90 of the BILLING CODE 3510–DR–S organizations at the regional level with Harmonized Tariff Schedule of the a commitment to install a pre- United States (HTSUS), for use in determined number (at least 500) of apparel articles including men’s and DEPARTMENT OF ENERGY solar energy systems. boys’ jackets and pants, women’s and [Number DE–PS36–03GO93012] A complete description of girls’ jackets, dresses, skirts, shorts, and partnerships and their representative pants, cannot be supplied by the Million Solar Roofs Initiative Small activities can be found on the MSR Web domestic industry in commercial Grant Program for State and Local site at http:// quantities in a timely manner and Partnerships www.MillionSolarRoofs.org. requesting quota- and duty-free Applications under the solicitation AGENCY: Golden Field Office, U.S. must further the work of State and Local treatment under the ATPDEA for Department of Energy. Partnerships, including partners in the apparel articles that are both cut and ACTION: Notice of issuance of solicitation building industry, state and local sewn in one or more ATPDEA for financial assistance applications. governments, utilities, the solar energy beneficiary countries from such fabrics. industry, financial institutions and non- SUMMARY: The U.S. Department of On March 24, 2003, CITA solicited governmental organizations, to remove Energy (DOE), pursuant to the DOE public comments regarding this request, market barriers to solar energy use and Financial Assistance Rules, 10 CFR particularly with respect to whether to develop and strengthen local demand 600.8, is announcing its intention to these fabrics can be supplied by the for solar energy products and solicit applications from State and Local applications. domestic industry in commercial Partnerships under the Million Solar There are two types of grants quantities in a timely manner. On April Roofs (MSR) Program. DOE’s Office of available: Phase 1—New Partnership 10, 2003, CITA and the Office of the Energy Efficiency and Renewable grants, and Phase 2—Meeting the U.S. Trade Representative offered to Energy will consider proposals from Commitment grants. Only one hold consultations with the relevant interested State and Local Partnerships application may be submitted per Congressional committees. We also to help fund their MSR program partnership in one or the other of the requested the advice of the U.S. development and implementation categories, but not both. Partnerships International Trade Commission and the activities. relevant Industry Sector Advisory that have been awarded prior MSR DATES: The solicitation will be issued partnership grants in the past may not Committees. early May 2003. apply for a Phase 1—New Partnership CITA has determined that certain ADDRESSES: A copy of the solicitation grant. Newly formed or existing dyed cotton corduroy fabrics, classified will be accessible through the Golden partnerships that have not received in subheading 5801.22.90 of the Field Office Home Page at http:// prior MSR grants may apply for a Phase Harmonized Tariff Schedule of the www.go.doe.gov/ 1—New Partnership grant. Any United States (HTSUS), for use in businessopportunities.html under partnership with the prerequisites may apparel articles including men’s and ‘‘Solicitations.’’ The Golden Home Page apply for a Phase 2—Meeting the boys’ jackets and pants, women’s and will provide direct access to the Commitment grant. girls’ jackets, dresses, skirts, shorts, and solicitation and provide instructions on The project or activity must be pants, can be supplied by the domestic using the DOE Industry Interactive conducted in a designated MSR State industry in commercial quantities in a Procurement System (IIPS) Web site. and Local Partnership area. There is no The solicitation can also be obtained cost sharing requirement for these
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grants, although cost sharing will be one Regulations. Protests will be considered establishing a May 28, 2003, deadline of the criteria considered. Subject to the by the Commission in determining the for filing comments on the second errata availability of funds, multiple awards appropriate action to be taken, but will filing. This notice amends the prior for a total of $1,500,000 (DOE funding) not serve to make protestants parties to notices issued in these dockets and in Fiscal Year 2003 are anticipated as a the proceedings. This filing is available establishes a new date for filing result of this Solicitation. The selected for review at the Commission in the comments. applicants will receive financial Public Reference Room or may be Notice is hereby given that comments, assistance under a grant. DOE will fund viewed on the Commission’s Web site at protests and motions in response to the up to $50,000 per project. DOE http://www.ferc.gov using the ‘‘FERRIS’’ original compliance filing and the two anticipates funding approximately 30 to link. Enter the docket number excluding erratas filed in this subdocket on May 6 40 grants in the amount of $10,000 to the last three digits in the docket and May 7, 2003, should be filed on or $50,000 each. number field to access the document. before June 4, 2003. Solicitation number DE–PS36– For assistance, please contact FERC Magalie R. Salas, 03GO93012 will include complete Online Support at Secretary. information on the program, including [email protected] or toll- [FR Doc. 03–12825 Filed 5–21–03; 8:45 am] technical aspects, funding, application free at (866) 208–3676, or TTY, contact preparation instructions, application (202) 502–8659. The Commission BILLING CODE 6717–01–P evaluation criteria, and other factors strongly encourages electronic filings. that will be considered when selecting See 18 CFR 385.2001(a)(1)(iii) and the DEPARTMENT OF ENERGY applications for funding. No pre- instructions on the Commission’s Web application conference is planned. site under the ‘‘e-Filing’’ link. Federal Energy Regulatory Issuance of the solicitation is planned Protest Date: May 27, 2003. Commission for early May 2003, with applications Magalie R. Salas, due 45 days after the solicitation has [Docket No. RP03–329–001] Secretary. been issued. [FR Doc. 03–12829 Filed 5–21–03; 8:45 am] ANR Pipeline Company; Notice of Issued in Golden, Colorado, on May 6, BILLING CODE 6717–01–P Compliance Filing 2003. Jerry L. Zimmer, May 15, 2003. Take notice that on May 9, 2003, ANR Director, Office of Acquisition and Financial DEPARTMENT OF ENERGY Assistance. Pipeline Company (ANR), tendered for filing for as part of its FERC Gas Tariff, [FR Doc. 03–12872 Filed 5–21–03; 8:45 am] Federal Energy Regulatory Commission Second Revised Volume No. 1, the BILLING CODE 6450–01–P following tariff sheet, with an effective [Docket No. ER03–262–004] date of May 1, 2003: DEPARTMENT OF ENERGY The New PJM Companies: American Substitute Second Revised Sheet No. 101A Substitute Original Sheet No. 101B Electric Power Service Corporation, On Federal Energy Regulatory Behalf of its Operating Companies: ANR states that the tariff sheets are Commission Appalachian Power Company, being filed in compliance with the [Docket No. RP03–99–001] Columbus Southern Power Company, Commission’s April 30, 2003 order Indiana Michigan Power Company, accepting ANR’s proposal of certain CenterPoint Energy Gas Transmission Kentucky Power Company, Kingsport changes to ANR’s Rate Schedule FSS in Company; Notice of Compliance Filing Power Company, Ohio Power order to provide more flexibility to its Company and Wheeling Power current firm storage service, primarily May 15, 2003. Company; Commonwealth Edison by modifying the timeframe within Take notice that on May 12, 2003, Company and Commonwealth Edison which storage and transportation CenterPoint Energy Gas Transmission Company of Indiana, Inc.; The Dayton services can be sold. Company (CEGT) tendered for filing as Power and Light Company; Virginia Any person desiring to protest said part of its FERC Gas Tariff, Sixth Electric and Power Company and PJM filing should file a protest with the Revised Volume No. 1, First Revised Interconnection, L.L.C.; Notice Federal Energy Regulatory Commission, Sheet No. 681, with an effective date of Amending Prior Notices 888 First Street, NE., Washington, DC May 12, 2003. 20426, in accordance with Section CEGT states that the filing is being May 15, 2003. 385.211 of the Commission’s Rules and made in compliance with the On May 1, 2003, American Electric Regulations. All such protests must be Commission’s order issued April 25, Power Service Corporation, filed in accordance with Section 2003 in Docket No. RP03–99–000. Commonwealth Edison Company, 154.210 of the Commission’s CEGT states that copies of the filing Dayton Power and Light Company, Regulations. Protests will be considered have been mailed to each of CEGT’s Virginia Electric and Power Company, by the Commission in determining the customers and interested state and PJM Interconnection, LLC appropriate action to be taken, but will commissions. (collectively, New PJM Companies) filed not serve to make protestants parties to Any person desiring to protest said a compliance filing in the above- the proceedings. This filing is available filing should file a protest with the docketed proceeding. This compliance for review at the Commission in the Federal Energy Regulatory Commission, filing was noticed by the Commission Public Reference Room or may be 888 First Street, NE., Washington, DC on May 8, 2003 and established a May viewed on the Commission’s Web site at 20426, in accordance with Section 22, 2003 comment deadline. On May 6, http://www.ferc.gov using the ‘‘FERRIS’’ 385.211 of the Commission’s Rules and 2003 and May 7, 2003, the New PJM link. Enter the docket number excluding Regulations. All such protests must be Companies filed erratas to their original the last three digits in the docket filed in accordance with Section compliance filing. The Commission number field to access the document. 154.210 of the Commission’s issued a notice on May 13, 2003, For assistance, please contact FERC
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Online Support at http://www.ferc.gov using the ‘‘FERRIS’’ last three digits in the docket number [email protected] or toll- link. Enter the docket number excluding field to access the document. For free at (866) 208–3676, or TTY, contact the last three digits in the docket assistance, contact FERC Online (202) 502–8659. The Commission number field to access the document. Support at strongly encourages electronic filings. Comments, protests and interventions [email protected] or toll- See 18 CFR 385.2001(a)(1)(iii) and the may be filed electronically via the free at (866) 208–3676, or for TTY, instructions on the Commission’s Web Internet in lieu of paper. For assistance, contact (202) 502–8659. Protests and site under the ‘‘e-Filing’’ link. please contact FERC Online Support at interventions may be filed electronically Protest Date: May 21, 2003. [email protected] or toll- via the Internet in lieu of paper; see 18 free at (866) 208–3676, or TTY, contact CFR 385.2001(a)(1)(iii) and the Magalie R. Salas, (202) 502–8659. The Commission instructions on the Commission’s Web Secretary. strongly encourages electronic filings. site under the ‘‘e-Filing’’ link. The [FR Doc. 03–12828 Filed 5–21–03; 8:45 am] See 18 CFR 385.2001(a)(1)(iii) and the Commission strongly encourages BILLING CODE 6717–01–P instructions on the Commission’s Web electronic filings. site under the ‘‘e-Filing’’ link. Comment Date: June 3, 2003. Protest Date: May 21, 2003. DEPARTMENT OF ENERGY Magalie R. Salas, Magalie R. Salas, Secretary. Federal Energy Regulatory Secretary. [FR Doc. 03–12826 Filed 5–21–03; 8:45 am] Commission [FR Doc. 03–12830 Filed 5–21–03; 8:45 am] BILLING CODE 6717–01–P [Docket No. RP95–408–052] BILLING CODE 6717–01–P
Columbia Gas Transmission DEPARTMENT OF ENERGY Corporation; Notice of Filing DEPARTMENT OF ENERGY Federal Energy Regulatory May 15, 2003. Federal Energy Regulatory Commission Take notice that on May 9, 2003, Commission [Docket No. CP03–290–000] Columbia Gas Transmission Corporation [Docket No. ER03–843–000] (Columbia) tendered for filing its report Northwest Pipeline Corporation; Notice on the sharing with its customers of a Entergy Services, Inc.; Notice of Filing of Request Under Blanket portion of the profits from the sale of Authorization certain base gas as provided in May 15, 2003. Columbia’s Docket No. RP95–408 rate Take notice that on May 13, 2003, May 15, 2003. case settlement. See Stipulation II, Entergy Services, Inc. (Entergy Take notice that on May 5, 2003, Article IV, Sections A through E, in Services), on behalf of Entergy Northwest Pipeline Corporation Docket No. RP95–408 approved at Arkansas, Inc., formerly Arkansas Power (Northwest), 295 Chipeta Way, Salt Lake Columbia Gas Transmission Corp., 79 & Light Company (APL), tendered for City, Utah 84158, filed in Docket No. FERC 61,044 (1997). Columbia states filing a Notice of Termination of CP03–290–000 a request pursuant to that sales of base gas have generated Contract between APL and the United Sections 157.205 and 157.208 of the additional profits of $9,064,557 (above a States of America, represented by the Federal Energy Regulatory $41.5 million threshold) requiring a Secretary of Energy, acting by and Commission’s regulations (18 CFR sharing of 50 percent of the excess through the Administrator, Sections 157.205 and 157.208) under profits with customers in accordance Southwestern Power Administration, an the Natural Gas Act (NGA) for with Stipulation II, Article IV, Section Administration within the Department authorization to construct and operate C. of Energy. approximately 3.3 miles of 26-inch Columbia states that $4,593,505, Any person desiring to intervene or to replacement pipeline (five segments) inclusive of interest, has been allocated protest this filing should file with the and a new 26-inch mainline valve near to affected customers and credited to Federal Energy Regulatory Commission, Machias in Snohomish County, their March invoices. 888 First Street, NE., Washington, DC Washington, under Northwest’s blanket Columbia states that copies of its 20426, in accordance with Rules 211 certificate issued in Docket No. CP82– filing have been mailed to all firm and 214 of the Commission’s Rules of 433–000, pursuant to Section 7 of the customers, interruptible customers and Practice and Procedure (18 CFR 385.211 NGA, all as more fully set forth in the affected state commissions. and 385.214). Protests will be application which is on file with the Any person desiring to protest said considered by the Commission in Commission and open to public filing should file a protest with the determining the appropriate action to be inspection. This filing is available for Federal Energy Regulatory Commission, taken, but will not serve to make review at the Commission or may be 888 First Street, NE., Washington, DC protestants parties to the proceeding. viewed on the Commission’s Web site at 20426, in accordance with Section Any person wishing to become a party http://www.ferc.gov using the ‘‘FERRIS’’ 385.211 of the Commission’s Rules and must file a motion to intervene. All such link. Enter the docket number excluding Regulations. All such protests must be motions or protests should be filed on the last three digits in the docket filed on or before the protest date below. or before the comment date, and, to the number field to access the document. Protests will be considered by the extent applicable, must be served on the For assistance, please contact FERC Commission in determining the applicant and on any other person Online Support at appropriate action to be taken, but will designated on the official service list. [email protected] or toll- not serve to make protestants parties to This filing is available for review at the free at (866) 208–3676, or for TTY, the proceedings. This filing is available Commission or may be viewed on the contact (202) 502–8659. for review at the Commission in the Commission’s Web site at http:// Northwest states that as a result of Public Reference Room or may be www.ferc.gov , using the ‘‘FERRIS’’ link. housing development in the vicinity of viewed on the Commission’s Web site at Enter the docket number excluding the Northwest’s mainline near Machias,
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Washington, five segments of its on the Commission’s Web site under the the Commission’s Web site at http:// existing 26-inch Ignacio to Sumas ‘‘e-Filing’’ link. The Commission www.ferc.gov using the ‘‘FERRIS’’ link. mainline have had a class location strongly encourages electronic filings. Enter the docket number excluding the change under Department of last three digits in the docket number Magalie R. Salas, Transportation’s regulations from a field to access the document. For Class 2 to a Class 3 location. Secretary. assistance, please contact FERC Online Accordingly, Northwest proposes to [FR Doc. 03–12821 Filed 5–21–03; 8:45 am] Support at replace these five segments of pipeline BILLING CODE 6717–01–P [email protected] or toll- totaling approximately 3.3 miles, with free at (866) 208–3676, or for TTY, thicker walled pipe (from 26-inch 0.281″ contact (202) 502–8659. The answer to wall thickness Grade X–52 to 26-inch DEPARTMENT OF ENERGY the complaint, comments, protests and 0.312″ wall thickness Grade X–70) and Federal Energy Regulatory interventions may be filed electronically to install a new 26-inch mainline valve Commission via the Internet in lieu of paper; see 18 at milepost 1411.32 to meet the spacing CFR 385.2001(a)(1)(iii) and the requirements for Class 3 areas. [Docket No. OR03–4–000] instructions on the Commission’s Web Northwest states that approximately 865 site under the ‘‘e-Filing’’ link. The feet of the replaced segments of pipeline Plantation Pipe Line Company, Commission strongly encourages will be abandoned in place, purged, Complainant, v. Colonial Pipeline electronic filings. packed with nitrogen and capped and Company, Respondent; Notice of Comment Date: June 4, 2003. the remainder will be removed. Complaint Northwest states that the new Magalie R. Salas, May 16, 2003. replacement pipeline will be installed Secretary. Take notice that on May 15, 2003, within its existing 75-foot permanent [FR Doc. 03–12916 Filed 5–21–03; 8:45 am] pursuant to Rule 206 of the right-of-way, but a wider construction BILLING CODE 6717–01–P right-of-way will be required in certain Commission’s Rules of Practice and areas, along with additional temporary Procedure (18 CFR 385.206) and the construction workspace. Procedural Rules Applicable to Oil DEPARTMENT OF ENERGY According to Northwest, the proposed Pipeline Procedures (18 CFR 343.1(a)), like-size replacement of segments of Plantation Pipe Line Company Federal Energy Regulatory pipeline will not change the existing (Plantation) filed a complaint in the Commission captioned proceeding. Plantation alleges daily design capacity, daily maximum [Docket No. CP03–294–000] capacity or operating pressures on its that Colonial Pipeline Company system. Northwest states that the total (Colonial) has violated and continues to Portland Natural Gas Transmission estimated cost for this proposed violate the Interstate Commerce Act, 49 System; Notice of Request Under pipeline replacement project is U.S.C. App.1 et seq., by refusing to Blanket Authorization approximately $9.1 million, including permit an interconnection with the approximately $380,000 cost of Plantation’s pipeline at Greensboro, May 15, 2003. removing replaced segments of pipeline. North Carolina as more fully set forth in Take notice that on May 8, 2003, Any questions concerning this request the complaint. Portland Natural Gas Transmission may be directed to Gary K. Kotter, Plantation requests that the System (PNGTS) filed a prior notice Manager, Certificates and Tariffs—3F3, Commission: (1) Direct Colonial to request pursuant to Sections 157.205 Northwest Pipeline Corporation, PO Box cooperate in the installation of the and 157.211(a)(2) of the Federal Energy 58900, Salt Lake City, Utah 84158–0900, requested interconnection; and (2) Regulatory Commission’s Regulations at (801) 584–7117 or fax (801) 584–7764 establish through routes for volumes under the Natural Gas Act, and PNGTS’s or [email protected]. received from Plantation through the blanket certificate issued in Docket No. Any person or the Commission’s staff interconnection to Colonial destinations CP96–238 et al., for authorization to may, within 45 days after issuance of downstream of Greensboro. construct and operate new metering and the instant notice by the Commission, Plantation states that it has served the related facilities in Westbrook, Maine. file pursuant to Rule 214 of the complaint on Colonial. PNGTS states that it is proposing to Commission’s Procedural Rules (18 CFR Any person desiring to be heard or to construct the facilities in compliance 385.214) a motion to intervene or notice protest this filing should file with the with Section 4.3 of its rate settlement of intervention and pursuant to Section Federal Energy Regulatory Commission, approved by the Commission in Docket 157.205 of the regulations under the 888 First Street, NE., Washington, DC No. RP02–13–000 on January 14, 2003, NGA (18 CFR 157.205), a protest to the 20426, in accordance with Rules 211 which requires PNGTS to construct request. If no protest is filed within the and 214 of the Commission’s Rules of facilities to allow for the bi-directional time allowed therefor, the proposed Practice and Procedure (18 CFR 385.211 flow of gas on its system north of its activity shall be deemed to be and 385.214). Protests will be Westbrook interconnect. PNGTS states authorized effective the day after the considered by the Commission in that the proposed facilities consist of a time allowed for filing a protest. If a determining the appropriate action to be pipeline meter, meter runs, and various protest is filed and not withdrawn taken, but will not serve to make valves, which will enable PNGTS to within 30 days after the allowed time protestants parties to the proceeding. receive gas from the Maritimes & for filing a protest, the instant request Any person wishing to become a party Northeast Pipeline, L.L.C. (Maritimes) shall be treated as an application for must file a motion to intervene. The system. PNGTS states that the proposed authorization pursuant to Section 7 of answer to the complaint and all facilities will be constructed and reside the NGA. comments, interventions or protests entirely within the existing meter Comments, protests and interventions must be filed on or before the comment station site where PNGTS and may be filed electronically via the date below. This filing is available for Maritimes interconnect. PNGTS Internet in lieu of paper. See 18 CFR review at the Commission in the Public estimates the cost of constructing the 385.2001(a)(1)(iii) and the instructions Reference Room or may be viewed on proposed facilities is $539,000.
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Any questions regarding this filing Federal Energy Regulatory Commission, 385.214 or 385.211 of the Commission’s should be directed to David B. Morgan, 888 First Street, NE., Washington, DC Rules and Regulations. All such motions Director, Marketing and Rates, Portland 20426, in accordance with Sections or protests must be filed in accordance Natural Gas Transmission System, One 385.214 or 385.211 of the Commission’s with Section 154.210 of the Harbour Place, Suite 375, Portsmouth, Rules and Regulations. All such motions Commission’s Regulations. Protests will New Hampshire 13801; or by telephone or protests must be filed in accordance be considered by the Commission in at (603) 559–5503 or FAX at (603) 427– with Section 154.210 of the determining the appropriate action to be 2807. Commission’s Regulations. Protests will taken, but will not serve to make Any person or the Commission’s staff be considered by the Commission in protestants parties to the proceedings. may, within 45 days after issuance of determining the appropriate action to be Any person wishing to become a party the instant notice by the Commission, taken, but will not serve to make must file a motion to intervene. This file pursuant to Rule 214 of the protestants parties to the proceedings. filing is available for review at the Commission’s Procedural Rules (18 CFR Any person wishing to become a party Commission in the Public Reference 385.214) a motion to intervene or notice must file a motion to intervene. This Room or may be viewed on the of intervention and pursuant to Section filing is available for review at the Commission’s Web site at http:// 157.205 of the regulations under the Commission in the Public Reference www.ferc.gov using the ‘‘FERRIS’’ link. NGA (18 CFR 157.205), a protest to the Room or may be viewed on the Enter the docket number excluding the request. If no protest is filed within the Commission’s Web site at http:// last three digits in the docket number time allowed therefor, the proposed www.ferc.gov using the ‘‘FERRIS’’ link. field to access the document. For activity shall be deemed to be Enter the docket number excluding the assistance, please contact FERC Online authorized effective the day after the last three digits in the docket number Support at time allowed for filing a protest. If a field to access the document. For [email protected] or toll- protest is filed and not withdrawn assistance, please contact FERC Online free at (866) 208–3676, or TTY, contact within 30 days after the allowed time Support at (202) 502–8659. The Commission for filing a protest, the instant request [email protected] or toll- shall be treated as an application for free at (866) 208–3676, or TTY, contact strongly encourages electronic filings. authorization pursuant to Section 7 of (202) 502–8659. The Commission See 18 CFR 385.2001(a)(1)(iii) and the the NGA. strongly encourages electronic filings. instructions on the Commission’s Web Comments, protests and interventions See 18 CFR 385.2001(a)(1)(iii) and the site under the ‘‘e-Filing’’ link. may be filed electronically via the instructions on the Commission’s Web Comment Date: May 19, 2003. Internet in lieu of paper. See 18 CFR site under the ‘‘e-Filing’’ link. 385.2001(a)(1)(iii) and the instructions Comment Date: May 22, 2003. Magalie R. Salas, on the Commission’s Web site under the Secretary. ‘‘e-Filing’’ link. The Commission Magalie R. Salas, [FR Doc. 03–12832 Filed 5–21–03; 8:45 am] Secretary. strongly encourages electronic filings. BILLING CODE 6717–01–P [FR Doc. 03–12831 Filed 5–21–03; 8:45 am] Magalie R. Salas, BILLING CODE 6717–01–P Secretary. DEPARTMENT OF ENERGY [FR Doc. 03–12822 Filed 5–21–03; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Federal Energy Regulatory DEPARTMENT OF ENERGY Commission [Docket Nos. ER03–167–000, et al.] [Docket No. RP96–312–123] Federal Energy Regulatory Commission The Empire District Electric Company, Tennessee Gas Pipeline Company; et al.; Electric Rate and Corporate [Docket No. RP96–312–121] Notice of Negotiated Rates Filings May 15, 2003. Tennessee Gas Pipeline Company; May 14, 2003. Notice of Negotiated Rate Take notice that on May 7, 2003, Tennessee Gas Pipeline Company The following filings have been made May 15, 2003. (Tennessee), tendered for filing its with the Commission. The filings are Take notice that on May 1, 2003, Negotiated Rate Agreement Amendment listed in ascending order within each Tennessee Gas Pipeline Company Filing. docket classification: Tennessee states that its filing (Tennessee), tendered for filing its 1. The Empire District Electric Negotiated Rate Tariff Filing. requests that the Commission approve Company Tennessee states that its filing its Negotiated Rate Agreement requests that the Commission approve a Amendment to its FT–A Service [Docket No. ER03–167–001] March 25, 2003, negotiated rate Agreement dated March 17, 2003 Take notice that on May 12, 2003, arrangement between Tennessee and between Tennessee and Kerr McGee pursuant to the January 10, 2003 Letter Nicor Gas Company. Tennessee requests Corporation. Tennessee requests that the Order in Docket No. ER03–167–000, The that the Commission accept and Commission grant such approval Empire District Electric Company approve the negotiated rate arrangement effective May 1, 2003. as soon as possible but no later than Any person desiring to be heard or to submitted for filing a version of the June 15, 2003, to be effective November protest said filing should file a motion Attachment A Form of Service 1, 2003. to intervene or a protest with the Agreement for Ancillary Services that Any person desiring to be heard or to Federal Energy Regulatory Commission, includes designations as required by protest said filing should file a motion 888 First Street, NE., Washington, DC Order No. 614. to intervene or a protest with the 20426, in accordance with Sections Comment Date: June 2, 2003.
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2. Illinois Power Company agencies in New Jersey and Comment Date: May 30, 2003. [Docket No. ER03–249–003] Pennsylvania. Comment Date: May 30, 2003. 9. Duke Energy Power Marketing, LLC Take notice that on May 12, 2003, [Docket No. ER03–841–000] Illinois Power Company (Illinois Power) 5. Avista Corporation filed an unexecuted First Revised [Docket No. ER03–837–000 Take notice that on May 12, 2003, Interconnection and Operating Take notice that on May 9, 2003, Duke Energy Power Marketing, LLC Agreement with Franklin County Power Avista Corporation (Avista) submitted a (DEPM) filed revisions to its FERC of Illinois, LLC. Illinois Power states Notice of Cancellation of Rate Schedule Electric Tariff, Original Volume No. 1 that the purpose of the filing is to No. 263 which is a netting agreement (Tariff), specifically (1) enumerating comply with the Commission’s Order with Mirant Americas Energy ancillary service products sold into the issued on April 10, 2003, ‘‘Order Marketing, LP, (formerly Southern ancillary service markets operated by Conditionally Accepting Company Energy Marketing, LP). Rate independent system operators, (2) Interconnection and Operating Schedule No. 263. Avista seeks all providing for the resale of firm Agreement for Filing’’ in Docket No. waivers necessary to allow the transmission rights and other similar ER03–249–000 and ER03–249–001. cancellation to be effective as of April congestion contracts, and (3) reflecting Illinois Power requests an effective 30, 2003. the Commission’s current language date of November 17, 2002 for the Avista states that copies of the filing preferences with respect to (a) use of an Agreement. Illinois Power states that it has been provided to Mirant Americas Internet site with respect to the has served a copy of the filing on Energy Marketing, LP. provision of certain ancillary services Franklin County Power of Illinois, LLC Comment Date: May 30, 2003. and (b) obtaining Commission approval and each person designated on the for certain affiliate transactions. No official service list. 6. Power Contract Financing, L.L.C. other changes were made to the Tariff, Comment Date: June 2, 2003. [Docket No. ER03–838–000] which was accepted for filing by the 3. Entergy Services, Inc. Take notice that on May 9, 2003, Commission in Docket No. ER01–1129– Power Contract Financing, L.L.C., filed 000. [Docket Nos. ER03–583–001, ER03–681–001, a Notice of Succession to adopt CES ER03–682–002 and ER03–744–001] Marketing, LLC’s market-based rate Comment Date: June 2, 2003. Take notice that on May 12, 2003, authorizations.Comment Date: May 30, Standard Paragraph Entergy Services, Inc.(ESI),as 2003. supplemented on May 14, 2003, on Any person desiring to intervene or to 7. Carolina Power & Light Company behalf of the Entergy Operating protest this filing should file with the Companies, filed information as [Docket No. ER03–839–000] Federal Energy Regulatory Commission, directed by the May 2, 2003 letter order Take notice that on May 9, 2003, 888 First Street, NE., Washington, DC issued by the Director, Division of Carolina Power & Light Company, d/b/ 20426, in accordance with Rules 211 Tariffs and Market Development—South a Progress Energy Carolinas, Inc. (CP&L) and 214 of the Commission’s Rules of in the above-referenced proceedings. amended a Power Supply Agreement Practice and Procedure (18 CFR 385.211 ESI states that copies of this filing dated November 2, 1998, between North and 385.214). Protests will be were served on the affected state utility Carolina Electric Membership considered by the Commission in commissions, and on each person Corporation (NCEMC) and CP&L, Rate determining the appropriate action to be designated on the official service list Schedule FERC No. 134. CP&L taken, but will not serve to make compiled by the Secretary in the above- respectfully requests waiver of the protestants parties to the proceeding. referenced proceedings. Commission’s notice of filing Any person wishing to become a party Comment Date: May 23, 2003. requirements to allow the amendment to must file a motion to intervene. All such 4. New York Independent System become effective on January 1, 2001. motions or protests should be filed on CP&L states that copies of the filing Operator, Inc. or before the comment date, and, to the were served upon NCEMC, the North extent applicable, must be served on the [Docket No. ER03–836–000] Carolina Utilities Commission and the applicant and on any other person Take notice that on May 9, 2003, the South Carolina Public Service New York Independent System Commission. designated on the official service list. Operator, Inc. (NYISO), filed proposed Comment Date: May 30, 2003. This filing is available for review at the revisions to the NYISO’s Market Commission or may be viewed on the 8. El Paso Electric Company, Public Administration and Control Area Commission’s Web site at http:// Service Company of New Mexico, Services Tariff (Services Tariff). NYISO www.ferc.gov , using the ‘‘FERRIS’’ link. Texas-New Mexico Power Company states that the proposed revisions would Enter the docket number excluding the remove the current bid cap on 10- [Docket No. ER03–840–000] last three digits in the docket number minute non-spinning reserves, and Take notice that on May 9, 2003, El field to access the document. For make certain related changes in the Paso Electric Company, Public Service assistance, contact FERC Online Services Tariff. The NYISO has Company of New Mexico, and Texas- Support at requested that the Commission make the New Mexico Power Company [email protected] or toll- filing effective on July 8, 2003. (collectively, Utilities) jointly tendered free at (866) 208–3676, or for TTY, The NYISO states it has mailed a copy for filing under their respective Open contact (202) 502–8659. Protests and of the filing to all parties that have Access Transmission Tariffs First interventions may be filed electronically executed Service Agreements under the Revised Interconnection Agreement via the Internet in lieu of paper; see 18 NYISO’s Open-Access Transmission (Agreement) between the Utilities and CFR 385.2001(a)(1)(iii) and the Tariff or Services Tariff, to the New Duke Energy Luna, LLC. The Utilities instructions on the Commission’s Web York State Public Service Commission seek an effective date for the Agreement site under the ‘‘e-Filing’’ link. The and to the electric utility regulatory of April 30, 2003.
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Commission strongly encourages Hunlock Creek Energy Ventures, to its that they will provide hard copies to electronic filings. affiliate UGI Enterprises, Inc., as part of any interested parties upon request. UGI Corporation’s corporate Comment Date: June 3, 2003. Magalie R. Salas, restructuring plan. Secretary. Comment Date: May 29, 2003. 5. Southern Company Services, Inc. [FR Doc. 03–12824 Filed 5–21–03; 8:45 am] 3. Mesquite Power, LLC, Sempra Energy [Docket No. ER02–851–008] BILLING CODE 6717–01–P Resources Take notice that on May 1, 2003, [Docket No. EC03–88–000] Southern Company Services, Inc., acting DEPARTMENT OF ENERGY Take notice that on May 12, 2003, as agent for Alabama Power Company, Mesquite Power, LLC (Mesquite) and Georgia Power Company, Gulf Power Federal Energy Regulatory Sempra Energy Resources (SER) Company, Mississippi Power Company, Commission (together, Applicants) tendered for filing and Savannah Electric and Power [Docket No. EC03–86–000, et al.] an application, pursuant to Section 203 Company (collectively, Southern of the Federal Power Act, for Companies), tendered for filing with the Electric Rate and Corporate Regulation authorization of a disposition of Federal Energy Regulatory Commission Filings jurisdiction facilities whereby a (Commission), an informational filing. synthetic lease facility would be Southern Companies states that the May 15, 2003. assigned by SER to Mesquite. purpose of this informational filing is to The following filings have been made Applicants state that the proposed update the data inputs to the formula with the Commission. The filings are transaction is intended to effectuate an rate adopted by Southern Companies in listed in ascending order within each intra-corporate transaction that will this proceeding and thereby establish docket classification. have no effect on competition, rates or updated charges for the use of their bulk 1. Calpine California Equipment regulation. transmission facilities under their Open Finance Company, LLC Comment Date: May 27, 2003. Access Transmission Tariff (FERC Electric Tariff, Fourth Revised Volume 4. Midwest Independent Transmission [Docket No. EC03–86–000]Company, LLC No. 5). System Operator, Inc. Creed Energy Center, LLC Comment Date: May 29, 2003. Goose Haven Energy Center, LLC [Docket Nos. ER98–1438–019 and ER02–111– Lambie Energy Center, LLC 009] 6. Southwest Power Pool, Inc. Gilroy Energy Center, LLC Take notice that on May 13, 2003, the [Docket No. ER03–547–001] King City Energy Center, LLC Midwest Independent Transmission Feather River Energy Center, LLC System Operator, Inc. (Midwest ISO) Take notice that on May 12, 2003, Yuba City Energy Center, LLC tendered for filing with the Federal Southwest Power Pool, Inc. (SPP) Wolfskill Energy Center, LLC Energy Regulatory Commission submitted for filing with the Federal Riverview Energy Center, LLC (Commission), a supplement to its Energy Regulatory Commission Take notice that on May 6, 2003, compliance filing in this proceeding. (Commission), revisions of Attachment Calpine California Equipment Finance The Midwest ISO states that it L to its open access transmission tariff, Company, LLC, Creed Energy Center, submitted proposed revisions to further in compliance with the Commission’s LLC, Goose Haven Energy Center, LLC, modify the definition of ‘‘Load Serving April 10, 2003 Order (April 10 Order) in Lambie Energy Center, LLC, Gilroy Entity’’ in the Agreement of the above-referenced docket, 103 FERC Energy Center, LLC, King City Energy Transmission Facilities Owners to ¶ 61,027 (2003). SPP states that Center, LLC, Feather River Energy Organize the Midwest Independent Attachment L now incorporates the Center, LLC, Yuba City Energy Center, Transmission System Operator, Inc. agreement submitted by SPP and the LLC, Wolfskill Energy Center, LLC and (Transmission Owners Agreement) in participating SPP Transmission Owners Riverview Energy Center, LLC compliance with the Commission’s to upgrade the 345 kV LaCygne-Stilwell (Applicants) tendered for filing with the Order (Order) in Midwest Independent transmission line. SPP further states that Federal Energy Regulatory Commission Transmission System Operator Inc., 103 it has also made the revisions required (Commission) an application under FERC ¶ 61,038 (2003). The Midwest ISO by the Commission’s April 10 Order to section 203 of the Federal Power Act for has requested an effective date of April the body of the agreement. approval of the disposition of 1, 2003, consistent with the Order. SPP states that a copy of this filing jurisdictional facilities and the The Midwest ISO has also requested has been served on the SPP acquisition of securities of a public waiver of the service requirements set Transmission Owners and all of the utility in connection with the financing forth in 18 CFR 385.2010. The Midwest parties on the official service list of certain generation facilities in the ISO states that it has electronically compiled by the Secretary in this State of California. served a copy of this filing, with docket. Comment Date: May 27, 2003. attachments, upon all Midwest ISO Comment Date: June 2, 2003. 2. UGI Utilities, Inc. Members, Member representatives of Transmission Owners and Non- 7. Southwest Reserve Sharing Group [Docket No. EC03–87–000] Transmission Owners, the Midwest ISO [Docket No. ER03–842–000] Take notice that on May 8, 2003, UGI Advisory Committee participants, Utilities, Inc. (UGI Utilities) tendered for Policy Subcommittee participants, as Take notice that on May 13, 2003, filing with the Federal Energy well as all state commissions within the Tucson Electric Power Company Regulatory Commission (Commission) region. In addition, Midwest ISO states tendered for filing on behalf of the an application, pursuant to Section 203 that the filing has been electronically members of the Southwest Reserve of the Federal Power Act, requesting posted on the Midwest ISO’s Web site Sharing Group an amendment to the authorization to transfer its interests in at www.midwestiso.org under the Southwest Reserve Sharing Group UGI Development Company, UGI heading ‘‘Filings to FERC’’ for other Participation Agreement. Hunlock Development Company, and interested parties in this matter, and Comment Date: June 3, 2003.
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8. Entergy Services, Inc. free at (866) 208–3676, or for TTY, g. Filed Pursuant to: Federal Power [Docket No. ER03–843–000] contact (202) 502–8659. Act 16 U.S.C.791(a)-825(r). h. Applicant Contact: Keith Zienert, Magalie R. Salas, Take notice that on May 13, 2003, Power Plant Superintendent, City of Entergy Services, Inc. (Entergy Secretary. Marshall, 906 S. Marshall, Marshall, MI Services), on behalf of Entergy [FR Doc. 03–12915 Filed 5–21–03; 8:45 am] 49068, (269) 781–8631; or John Fisher, Arkansas, Inc., formerly Arkansas Power BILLING CODE 6717–01–P Chairman, Lawson-Fisher Associates & Light Company (APL), tendered for P.C., 525 West Washington Avenue, filing a Notice of Termination of South Bend, IN 46601, (574)234–3167. DEPARTMENT OF ENERGY Contract between APL and the United i. FERC Contact: Peter Leitzke, (202) States of America, represented by the 502–6059 or [email protected]. Secretary of Energy, acting by and Federal Energy Regulatory Commission j. Cooperating agencies: We are asking through the Administrator, Federal, state, local, and tribal agencies Southwestern Power Administration, an [Project No. 2105–089] with jurisdiction and/or special Administration within the Department expertise with respect to environmental Pacific Gas and Electric Company, P– of Energy. issues to cooperate with us in the 233–081–CA; Notice of Extension of Comment Date: June 3, 2003. preparation of the environmental Time To Provide Comments on Draft document. Agencies who would like to 9. Northern Indiana Public Service Environmental Impact Statement Company request cooperating status should follow May 16, 2003. the instructions for filing comments [Docket No. ER03–844–000] On March 14, 2003, Commission staff described in item l below. Take notice that on May 13, 2003, made available to the public its draft k. Pursuant to section 4.32(b)(7) of 18 Northern Indiana Public Service Environmental Impact Statement (DEIS) CFR of the Commission’s regulations, if Company (Northern Indiana) filed a on the proposed relicensing of the Pit 3, any resource agency, Indian Tribe, or Service Agreement pursuant to its 4, 5 Hydroelectric Project, located in the person believes that an additional Wholesale Market-Based Rate Tariff Pit River Basin in Shasta County, scientific study should be conducted in with ConocoPhillips Company California. The deadline for providing order to form an adequate factual basis (ConocoPhillips). Northern Indiana has comments on the DEIS was established for a complete analysis of the requested an effective date of May 13, as May 21, 2003. application on its merit, the resource 2003. Notice is hereby given that the agency, Indian Tribe, or person must file Northern Indiana states that copies of deadline for providing comments on the a request for a study with the this filing have been sent to DEIS is extended to June 20, 2003. Commission not later than 60 days from ConocoPhillips, the Indiana Utility the date of filing of the application, and Regulatory Commission, and the Magalie R. Salas, serve a copy of the request on the Indiana Office of Utility Consumer Secretary. applicant. Counselor. [FR Doc. 03–12917 Filed 5–21–03; 8:45 am] l. Deadline for filing additional study Comment Date: June 3, 2003. BILLING CODE 6717–01–P requests and requests for cooperating agency status: July 2, 2003. Standard Paragraph All documents (original and eight Any person desiring to intervene or to DEPARTMENT OF ENERGY copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy protest this filing should file with the Federal Energy Regulatory Regulatory Commission, 888 First Federal Energy Regulatory Commission, Commission 888 First Street, NE., Washington, DC Street, NE., Washington, DC, 20426. 20426, in accordance with Rules 211 [Project No. 6514–009] Please include the project number (P– and 214 of the Commission’s Rules of 6514) on any documents filed. Practice and Procedure (18 CFR 385.211 Notice of Application Tendered for The Commission’s rules of practice and 385.214). Protests will be Filing with the Commission, Soliciting require all intervenors filing documents considered by the Commission in Additional Study Requests, and with the Commission to serve a copy of determining the appropriate action to be Establishing Procedural Schedule for that document on each person on the taken, but will not serve to make Relicensing and a Deadline for official service list for the project. protestants parties to the proceeding. Submission of Final Amendments Further, if an intervenor files comments Any person wishing to become a party May 15, 2003. or documents with the Commission must file a motion to intervene. All such Take notice that the following relating to the merits of an issue that motions or protests should be filed on hydroelectric application has been filed may affect the responsibilities of a or before the comment date, and, to the with the Commission and is available particular resource agency, they must extent applicable, must be served on the for public inspection. also serve a copy of the document on applicant and on any other person a. Type of Application: Subsequent that resource agency. designated on the official service list. Minor License. Additional study requests may be This filing is available for review at the b. Project No.: 6514–009. filed electronically via the Internet in Commission or may be viewed on the c. Date Filed: May 2, 2003. lieu of paper. The Commission strongly Commission’s Web site at http:// d. Applicant: City of Marshall, encourages electronic filing.See 18 CFR www.ferc.gov , using the ‘‘FERRIS’’ link. Michigan. 385.2001(a)(1)(iii) and the instructions Enter the docket number excluding the e. Name of Project: City of Marshall on the Commission’s Web site (http:// last three digits in the docket number Hydroelectric Project. www.ferc.gov ) under the ‘‘e-Filing’’ filed to access the document. For f. Location: On the Kalamazoo River link. After logging into the e-Filing assistance, contact FERC Online near the City of Marshall, in Calhoun system, select ‘‘Comment on Filing’’ Support at County, Michigan. The project does not from the Filing Type Selection screen [email protected] or toll- affect federal lands. and continue with the filing process.’’
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m. This application is not ready for Notice of the availability of the EA July which requires public utilities to file environmental analysis at this time. 2004 Electric Quarterly Reports (EQR). Order n. The existing City of Marshall Ready for Commission decision on the 2001–C, issued December 18, 2002, Hydroelectric Project consists of the application—September 2004 instructs all public utilities to file these following existing facilities: (1) The 12- Unless substantial comments are reports using Electric Quarterly Report foot-high, 215-foot-long Perrin No. 1 received in response to the EA, staff Submission Software, beginning with Dam; (2) the 12-foot-high, 90-foot-long intends to prepare a single EA in this the report due on or before January 31, Perrin No. 2 Dam; (3) a 130-acre case. If substantial comments are 2003 (extended to February 21, 2003). reservoir with a normal pool elevation received in response to the EA, a final On March 28, 2003, the Commission of 899 feet msl; (4) a 140-foot-long EA will be prepared with the following issued Order 2001–D, requiring public canal-type forebay; (5) a powerhouse modifications to the schedule. utilities to review their fourth quarter containing three generating units with a Notice of the availability of the final total installed capacity of 463 kW; and 2002 EQR submissions to ensure that EA—October 2004 the data filed was correct. Utilities were (6) other appurtenances. Ready for Commission’s decision on the o. A copy of the application is directed to re-submit their corrected application—November 2004 data by April 11, 2003, which was available for review at the Commission Final amendments to the application extended to April 18, 2003. in the Public Reference Room or may be must be filed with the Commission no viewed on the Commission’s Web site at later than 30 days from the issuance On April 23, 2003, FERC staff http://www.ferc.gov using the ‘‘FERRIS’’ date of the notice of ready for discovered a problem in the ‘‘Copy link. Enter the docket number excluding environmental analysis. Forward’’ feature of the EQR submission the last three digits in the docket Register online at http:// software. Although the feature has been number field to access the document. www.ferc.gov/esubscribenow.htm to be fixed, filers who used this feature before For assistance, contact FERC Online notified via email of new filings and it was fixed may have to re-enter some Support at issuances related to this or other data that was previously manually [email protected] or toll- pending projects. For assistance, contact free at (866)208–3676, or for TTY, entered into the software. The FERC Online Support at Commission is committed to ensuring contact (202)502–8659. A copy is also [email protected] or toll- available for inspection and that high quality in the data be filed in free at 1–866–208–3676, or for TTY, reproduction at the address in item h the EQRs and subsequently extended (202) 502–8659. above. the filing deadline for first quarter 2003 p. With this notice, we are initiating Magalie R. Salas, EQRs to May 15, 2003. consultation with the Michigan State Secretary. Several companies have requested Historic Preservation Officer (SHPO), as [FR Doc. 03–12827 Filed 5–21–03; 8:45 am] further extensions to the filing deadlines required by section 106, National BILLING CODE 6717–01–P to resolve problems they experienced Historic Preservation Act, and the with their EQR filings. We would like to regulations of the Advisory Council on allow these utilities the time needed to Historic Preservation, 36 CFR 800.4. DEPARTMENT OF ENERGY q. Procedural schedule and final ensure that they can successfully file high quality data. Notice is hereby given amendments: The application will be Federal Energy Regulatory processed according to the following Commission that the time to file corrections to the Hydro Licensing Schedule. Revisions to fourth quarter 2002 EQR as required by the schedule will be made as [Docket Nos. ER02–2001–000 and RM01–8– Order 2001–D is extended to the date 000] appropriate. listed for each company identified in Issue Acceptance or Deficiency Letter— Electric Quarterly Reports, Revised the attachment to this notice. October 2003 Public Utility Filing Requirements; Magalie R. Salas, Issue Scoping Document—November Notice of Extension of Time 2003 Secretary. Notice that application is ready for May 15, 2003. environmental analysis—February On April 25, 2002, the Commission 2004 issued Order No. 2001,1 a final rule
ATTACHMENT
Date of requested Utility Quarters requested extension
The ANP Companies 2 ...... 2nd, 3rd, and 4th Quarters 2002 and May 16, 2003. 1st Quarter 2003. Capital Energy, Inc ...... 2nd, 3rd, and 4th Quarter 2002 ...... April 25, 2003. California Independent System Operator Corporation ...... 4th Quarter Revisions ...... May 30, 2003. California Independent System Operator Corporation ...... 1st Quarter 2003 ...... June 10, 2003. Dominion Resources Services and Affiliates ...... 4th Quarter 2002 ...... May 16, 2003. Exelon 3 ...... 4th Quarter 2003 and 1st Quarter 2003 May 30, 2003. Indeck-Olean and Indeck-Oswego ...... 4th Quarter 2002 and 1st Quarter 2003 May 15, 2003. Sempra Energy Trading Corp ...... 4th Quarter 2002 ...... May 29, 2003.
1 Revised Public Utility Filing Requirements, 2 The ANP Companies includes the following 3 Exelon includes the following companies: Order No. 2001, 67 FR 31043, FERC Stats. & Regs. companies: ANP Funding I, LLC, ANP Marketing Exelon Generation Company, LLC, Exelon Energy ¶ 31,127 (April 25, 2002); reh’g denied, Order No. Company, ANP Bellingham Energy Company, LLC, Company, AmerGen Energy Company, LLC, 2001–A, 100 FERC ¶ 61,074, reconsideration and ANP Blackstone Energy Company, LLC and Milford Southeast Chicago Energy Project, LLC and Exelon clarification denied, Order No.2001–B, 100 FERC Power Limited Partnership. New England Power Marketing, LP. ¶ 61,342 (2002).
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ATTACHMENT—Continued
Date of requested Utility Quarters requested extension
Southern California Edison Company ...... 1st Quarter 2003 ...... June 3, 2003
[FR Doc. 03–12823 Filed 5–21–03; 8:45 am] 63, subpart QQQQ; OMB Number 2060– Programs, Office of Air and Radiation, BILLING CODE 6717–01–P 0510; expires 05/31/2006. Mailcode 6202J, Environmental EPA ICR No. 1773.06; NESHAP for Protection Agency, 1200 Pennsylvania Hazardous Waste Combustors; was Ave., NW., Washington, DC 20460; approved 05/01/2003; in 40 CFR part ENVIRONMENTAL PROTECTION telephone number: 202–564–0047; fax 63, subpart EEE; OMB Number 2050– AGENCY number: 202–565–2134; e-mail address: 0171; expires 05/31/2006. [email protected]. [FRL–7502–5] EPA ICR No. 1541.07; NESHAP: Benzene Waste Operations; was SUPPLEMENTARY INFORMATION: EPA has Agency Information Collection approved 05/01/2003; in 40 CFR part submitted the following ICR to OMB for Activities OMB Responses 61, subpart FF; OMB Number 2060– review and approval according to the 0183; expires 05/31/2006. procedures prescribed in 5 CFR 1320.12. AGENCY: Environmental Protection On June 18, 2002 (67 FR 117), EPA Agency (EPA). Correction sought comments on this ICR pursuant ACTION: Notices. This is to correct expiration date for to 5 CFR 1320.8(d). EPA received 2 EPA ICR No. 0663.08, NSPS for comments and has addressed them in SUMMARY: This document announces the Beverage Can Surface Coating; in 40 the program design. Office of Management and Budget’s CFR part 60, subpart WW; from 04/20/ EPA has established a public docket (OMB) responses to Agency clearance 2003 to 04/30/2006. for this ICR under Docket ID No. OAR– requests, in compliance with the Dated: May 13, 2003. 2002–0094, which is available for public Paperwork Reduction Act (44 U.S.C. Oscar Morales, viewing at the Air and Radiation Docket 3501 et seq.). An agency may not Director, Collection Strategies Division. and Information Center in the EPA conduct or sponsor, and a person is not Docket Center (EPA/DC), EPA West, required to respond to, a collection of [FR Doc. 03–12867 Filed 5–21–03; 8:45 am] Room B102, 1301 Constitution Ave., information unless it displays a BILLING CODE 6560–50–P NW., Washington, DC. The EPA Docket currently valid OMB control number. Center Public Reading Room is open The OMB control numbers for EPA’s from 8:30 a.m. to 4:30 p.m., Monday regulations are listed in 40 CFR part 9 ENVIRONMENTAL PROTECTION through Friday, excluding legal and 48 CFR chapter 15. AGENCY holidays. The telephone number for the FOR FURTHER INFORMATION CONTACT: [OAR–2002–0094; FRL–7502–6] Reading Room is (202) 566–1744, and Susan Auby (202) 566–1672, or email at the telephone number for the Air and [email protected] and please refer to Agency Information Collection Activities; Proposed Collection; Radiation Docket and Information the appropriate EPA Information Center is (202) 566–1742. An electronic Collection Request (ICR) Number. Comment Request; (EPA ICR No. 2100.01) version of the public docket is available SUPPLEMENTARY INFORMATION: through EPA Dockets (EDOCKET) at AGENCY: Environmental Protection OMB Responses to Agency Clearance http://www.epa.gov/edocket. Use Agency (EPA). Requests EDOCKET to submit or view public ACTION: Notice. comments, access the index listing of OMB Approvals the contents of the public docket, and to SUMMARY: In compliance with the access those documents in the public EPA ICR No. 1891.03; NESHAP for Paperwork Reduction Act (44 U.S.C. Publicly Owned Treatment Works docket that are available electronically. 3501 et seq.), this document announces Once in the system, select ‘‘search,’’ (POTW) Facilities; was approved 05/01/ that the following Information 2003; in 40 CFR part 63, subpart VVV; then key in the docket ID number Collection Request (ICR) has been identified above. OMB Number 2060–0428; expires 05/ forwarded to the Office of Management 31/2006. and Budget (OMB) for review and Any comments related to this ICR EPA ICR No. 1894.03; NESHAP for approval: Reporting Requirements should be submitted to EPA and OMB Secondary Aluminum Production (Final Under EPA’s Climate Leaders Program, within 30 days of this notice, and Rule); was approved 05/01/2003; in 40 (EPA ICR No. 2100.01). This ICR according to the following detailed CFR part 63, subpart RRR; OMB Number describes the nature of the information instructions: (1) Submit your comments 2060–0433; expires 07/31/2003. collection and its estimated burden and to EPA online using EDOCKET (our EPA ICR No. 1954.02; NESHAP for cost. preferred method), by e-mail to a-and- Surface Coating of Large Household and [email protected], or by mail DATES: Additional comments may be Commercial Appliances (Final Rule); to: EPA Docket Center, Environmental submitted on or before June 23, 2003. was approved 05/01/2003; in 40 CFR Protection Agency, Mailcode: 6202J, part 63, subpart NNNN; OMB Number ADDRESSES: Follow the detailed 1200 Pennsylvania Ave., NW., 2060–0457; expires 05/31/2006. instructions in SUPPLEMENTARY Washington, DC 20460, and (2) Mail EPA ICR No. 2034.02; NESHAP for INFORMATION. your comments to OMB at: Office of the Wood Building Products Surface FOR FURTHER INFORMATION CONTACT: Tom Information and Regulatory Affairs, Coating Industry (Final Rule); was Kerr, Climate Protection Partnerships Office of Management and Budget approved 05/01/2003; in 40 CFR part Division, Office of Atmospheric (OMB), Attention: Desk Officer for EPA,
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725 17th Street, NW., Washington, DC develop, acquire, install, and utilize Dated: May 9, 2003. 20503. technology and systems for the purposes Gloria D. Car, EPA’s policy is that public comments, of collecting, validating, and verifying Designated Federal Officer. whether submitted electronically or in information, processing and paper, will be made available for public maintaining information, and disclosing Gulf of Mexico Program; Citizens viewing in EDOCKET as EPA receives and providing information; adjust the Advisory Committee Meeting them and without change, unless the existing ways to comply with any Embassy Suites, New Orleans, comment contains copyrighted material, previously applicable instructions and Louisiana, June 24–26, 2003 CBI, or other information whose public requirements; train personnel to be able disclosure is restricted by statute. When to respond to a collection of Tuesday, June 24 EPA identifies a comment containing information; search data sources; 1–1:30 p.m., Opening Remarks/ copyrighted material, EPA will provide complete and review the collection of Introductions, Brian Grantham, a reference to that material in the information; and transmit or otherwise Chair and Robert Crowe, Vice-Chair version of the comment that is placed in disclose the information. • Updates on resignations, new EDOCKET. The entire printed comment, Respondents/Affected Entities: large members including the copyrighted material, will companies/private entities. • Follow-up on Louisiana Resolution be available in the public docket. Estimated Number of Respondents: • MC, PRB overview Although identified as an item in the 70. official docket, information claimed as 1:30–1:45 p.m., Expectations for CAC Frequency of Response: annual. Activities and Measures Discussion, CBI, or whose disclosure is otherwise Estimated Total Annual Hour Burden: restricted by statute, is not included in Jim Kachtick, former CAC Chair 5,114 hours. 1:45–2:30 p.m., GMP Director’s Report, the official public docket, and will not Estimated Total Annual Cost: Bryon Griffith, GMPO Acting be available for public viewing in $433,390, includes $5,810 annualized EDOCKET. For further information Director capital or O&M costs. • about the electronic docket, see EPA’s Changes in the Estimates: This is a Update of the Executive Order Federal Register notice describing the new information collection, and as 2:30–3:15 p.m., Hypoxia Action Plan, electronic docket at 67 FR 38102 (May such, this section is not applicable. Bill Franz, Upper Mississippi River 31, 2002), or go to http://www.epa.gov/ Coordinator, EPA Region 5 Dated: May 8, 2003. edocket. 3:15–3:30 p.m., Break Title: Reporting Requirements Under Oscar Morales, 3:30–4:15 p.m., Nutrient Enrichment— EPA’s Climate Leaders Program (EPA Director, Collection Strategies Division. Lower MS River Sub Basin ICR Number 2100.01). This is a request [FR Doc. 03–12868 Filed 5–21–03; 8:45 am] Committee, Doug Daigle, for a new collection. BILLING CODE 6560–50–P Mississippi River Basin Alliance Abstract: Climate Leaders is an EPA- 4:15–5 p.m., Pipeline Presentation, Al sponsored, voluntary program that Taylor, Gulfstream encourages companies to undertake ENVIRONMENTAL PROTECTION 5 p.m., Wrap-up greenhouse gas (GHG) reduction goals AGENCY and to develop a corporate GHG Thursday, June 26 [FRL–7502–2] inventory to demonstrate progress 1–1:30 p.m., Recap of focus team/ towards that goal. It is run through Gulf of Mexico Program Citizens committee meetings from previous EPA’s Climate Protection Partnerships Advisory Committee Meeting days Division (CPPD) in the Office of Air & 1:30–2 p.m., Marine Debris Radiation. Companies report their GHG AGENCY: Environmental Protection Presentation, Charles Barr, Ocean inventories to EPA on an annual basis Agency ( EPA). Conservancy to demonstrate their progress toward ACTION: Notice of meeting. 2–2:30 p.m. Citizens Advisory their GHG reduction goal. This reporting Committee Wrap-up allows EPA to offer highly credible SUMMARY: Under the Federal Advisory • Discussion and Recommendations public recognition to companies that Committee Act (Public Law 92–463), • Collect Questionnaires have demonstrated leadership by EPA gives notice of a meeting of the meeting or exceeding their goals. Gulf of Mexico Program (GMP) Citizens 2:30 p.m., Adjourn An agency may not conduct or Advisory Committee (CAC). [FR Doc. 03–12869 Filed 5–21–03; 8:45 am] sponsor, and a person is not required to DATES: The meeting will be held on BILLING CODE 6560–50–P respond to, a collection of information Tuesday, June 24, 2003, from 1 p.m. to unless it displays a currently valid OMB 5 p.m. and on Thursday, June 26, 2003, control number. The OMB control from 1 p.m. to 2:30 p.m. ENVIRONMENTAL PROTECTION numbers for EPA’s regulations are listed ADDRESSES: The meeting will be held at AGENCY in 40 CFR part 9 and 48 CFR chapter 15, the Embassy Suites Hotel, 315 Julia [FRL–7502–3] and are identified on the form and/or Street, New Orleans, LA 70130 (504– instrument, if applicable. 525–1993). Clean Air Act Advisory Committee Burden Statement: The annual public Notice of Meeting reporting and recordkeeping burden for FOR FURTHER INFORMATION CONTACT: Gloria D. Car, Designated Federal this collection of information is AGENCY: Environmental Protection Officer, Gulf of Mexico Program Office, estimated to average 73 hours per Agency (EPA). Mail Code EPA/GMPO, Stennis Space response. Burden means the total time, ACTION: Notice. effort, or financial resources expended Center, MS 39529–6000 at (228) 688– by persons to generate, maintain, retain, 2421. SUMMARY: The Environmental Protection or disclose or provide information to or SUPPLEMENTARY INFORMATION: Proposed Agency established the Clean Air Act for a Federal agency. This includes the agenda is attached. Advisory Committee (CAAAC) on time needed to review instructions; The meeting is open to the public. November 19, 1990, to provide
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independent advice and counsel to EPA CAAAC Web site: http://www.epa.gov/ EPA. This action may, however, be of on policy issues associated with oar/caaac/. interest to the public in general. Since implementation of the Clean Air Act of Dated: May 13, 2002. other entities may also be interested, the Agency has not attempted to describe all 1990. The Committee advises on Robert D. Brenner, economic, environmental, technical the specific entities that may be affected Principal Deputy Assistant Administrator for by this action. If you have any questions scientific, and enforcement policy Air and Radiation. issues. regarding the applicability of this action [FR Doc. 03–12866 Filed 5–21–03; 8:45 am] Open Meeting Notice: Pursuant to 5 to a particular entity, consult the BILLING CODE 6560–50–M FOR U.S.C. App. 2 section 10(a)(2), notice is technical person listed under hereby given that the Clean Air Act FURTHER INFORMATION CONTACT. Advisory Committee will hold its next ENVIRONMENTAL PROTECTION B. How Can I Get Copies of this open meeting on Thursday, June 12, AGENCY Document and Other Related 2003, from approximately 8:30 a.m. to Information? [OPPT–2003–0023; FRL–7309–1] 2:30 p.m. at the Sheraton Crystal City 1. Docket. EPA has established an Hotel, 1880 Jefferson Davis Highway, Approval of Test Marketing Exemption official public docket for this action Arlington, Virginia. Seating will be for a Certain New Chemical under docket identification (ID) number available on a first come, first served OPPT–2003–0023. The official public AGENCY: Environmental Protection basis. Three of the CAAC’s docket consists of the documents Subcommittees (the Linking Energy, Agency (EPA). specifically referenced in this action, Land Use, Transportation, and Air ACTION: Notice. any public comments received, and Quality Concerns Subcommittee; the SUMMARY: This notice announces EPA’s other information related to this action. Permits/NSR/Toxics Subcommittee; and Although a part of the official docket, the Economics Incentives and approval of an application for test marketing exemption (TME) under the public docket does not include Regulatory Innovations Subcommittee) Confidential Business Information (CBI) will hold meetings on Wednesday, June section 5(h)(1) of the Toxic Substances Control Act (TSCA) and 40 CFR 720.38. or other information whose disclosure is 11, 2003 from approximately 1 p.m. to restricted by statute. The official public 7 p.m. at the Sheraton Crystal City EPA has designated this application as TME–03–0001. The test marketing docket is the collection of materials that Hotel, the same location as the full is available for public viewing at the Committee. The schedule for the three conditions are described in the TME application and in this notice. EPA Docket Center, Rm. B102-Reading Subcommittees meetings is: Linking Room, EPA West, 1301 Constitution Energy, Land Use, Transportation, and DATES: Approval of this TME is effective Ave., NW., Washington, DC. The EPA Air Quality—1 p.m. to 3 p.m.; Permits/ May 9, 2003. Comments, identified by Docket Center is open from 8:30 a.m. to NSR/Toxics—3 p.m. to 5 p.m.; and docket ID number OPPT–2003–0023 4:30 p.m., Monday through Friday, Economics Incentives and Regulatory and the TME number, must be received excluding legal holidays. The EPA Innovations—5 p.m. to 7 p.m. on or before June 6, 2003. Docket Center Reading Room telephone ADDRESSES: Inspection of Committee Documents: Comments may be number is (202) 566–1744 and the The Committee agenda and any submitted electronically, by mail, or telephone number for the OPPT Docket, documents prepared for the meeting through hand delivery/courier. Follow which is located in EPA Docket Center, will be publicly available at the the detailed instructions as provided in is (202) 566–0280. SUPPLEMENTARY meeting. Thereafter, these documents, Unit I. of the 2. Electronic access. You may access together with CAAC meeting minutes, INFORMATION. this Federal Register document will be available by contacting the FOR FURTHER INFORMATION CONTACT: For electronically through the EPA Internet Office of Air and Radiation Docket and general information contact: Barbara under the ‘‘Federal Register’’ listings at requesting information under docket Cunningham, Director, Environmental http://www.epa.gov/fedrgstr/. item A–94–34 (CAAAC). The Docket Assistance Division (7408M), Office of An electronic version of the public office can be reached by telephoning Pollution Prevention and Toxics, docket is available through EPA’s 202–260–7548; FAX 202–260–4400. Environmental Protection Agency, 1200 electronic public docket and comment Pennsylvania Ave., NW., Washington, system, EPA Dockets. You may use EPA FOR FURTHER INFORMATION CONTACT: For DC 20460–0001; telephone number: Dockets at http://www.epa.gov/edocket/ further information concerning this (202) 554–1404; e-mail address: TSCA- to submit or view public comments, meeting of the full CAAAC, please [email protected]. access the index listing of the contents contact Paul Rasmussen, Office of Air For technical information contact: of the official public docket, and to and Radiation, U.S. EPA (202) 564– Miriam Wiggins-Lewis, Chemical access those documents in the public 1306, FAX (202) 564–1352 or by mail at Control Division, (7405M), Office of docket that are available electronically. U.S. EPA, Office of Air and Radiation Pollution Prevention and Toxics, Although not all docket materials may (Mail code 6102 A), 1200 Pennsylvania Environmental Protection Agency, 1200 be available electronically, you may still Avenue, NW., Washington, DC 20004. Pennsylvania Ave., NW., Washington, access any of the publicly available For information on the Subcommittee DC 20460–0001; telephone number: docket materials through the docket meetings, please contact the following (202) 564–9373; e-mail address: facility identified in Unit I.B.1. Once in individuals: (1) Linking Transportation, [email protected]. the system, select ‘‘search,’’ then key in Land Use and Air Quality Concerns— the appropriate docket ID number. Robert Larson, 734–214–4277; Debbie SUPPLEMENTARY INFORMATION: Certain types of information will not Stackhouse, 919–541–4354; and (2) I. General Information be placed in the EPA Dockets. Economic Incentives and Regulatory Information claimed as CBI and other Innovations—Paul Rasmussen, 202– A. Does this Action Apply to Me? information whose disclosure is 564–1306. Additional information on This action is directed in particular to restricted by statute, which is not these meetings and the CAAAC and its the chemical manufacturer and/or included in the official public docket, Subcommittees can be found on the importer who submitted the TME to will not be available for public viewing
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in EPA’s electronic public docket. EPA’s specified comment period. Comments public docket, and made available in policy is that copyrighted material will received after the close of the comment EPA’s electronic public docket. not be placed in EPA’s electronic public period will be marked ‘‘late.’’ EPA is not iii. Disk or CD ROM. You may submit docket but will be available only in required to consider these late comments on a disk or CD ROM that printed, paper form in the official public comments. If you wish to submit CBI or you mail to the mailing address docket. To the extent feasible, publicly information that is otherwise protected identified in Unit I.C.2. These electronic available docket materials will be made by statute, please follow the instructions submissions will be accepted in available in EPA’s electronic public in Unit I.D. Do not use EPA Dockets or docket. When a document is selected e-mail to submit CBI or information WordPerfect or ASCII file format. Avoid from the index list in EPA Dockets, the protected by statute. the use of special characters and any system will identify whether the 1. Electronically. If you submit an form of encryption. document is available for viewing in electronic comment as prescribed in this 2. By mail. Send your comments to: EPA’s electronic public docket. unit, EPA recommends that you include Document Control Office (7407M), Although not all docket materials may your name, mailing address, and an e- Office of Pollution Prevention and be available electronically, you may still mail address or other contact Toxics (OPPT), Environmental access any of the publicly available information in the body of your Protection Agency, 1200 Pennsylvania docket materials through the docket comment. Also include this contact Ave., NW., Washington, DC 20460– facility identified in Unit I.B.1. EPA information on the outside of any disk 0001. intends to work towards providing or CD ROM you submit, and in any 3. By hand delivery or courier. Deliver electronic access to all of the publicly cover letter accompanying the disk or your comments to: OPPT Document available docket materials through CD ROM. This ensures that you can be Control Office (DCO) in EPA East EPA’s electronic public docket. identified as the submitter of the For public commenters, it is comment and allows EPA to contact you Building Rm. 6428, 1201 Constitution important to note that EPA’s policy is in case EPA cannot read your comment Ave., NW., Washington, DC. Attention: that public comments, whether due to technical difficulties or needs Docket ID Number OPPT–2003–0023 submitted electronically or in paper, further information on the substance of and the TME number. The DCO is open will be made available for public your comment. EPA’s policy is that EPA from 8 a.m. to 4 p.m., Monday through viewing in EPA’s electronic public will not edit your comment, and any Friday, excluding legal holidays. The docket as EPA receives them and identifying or contact information telephone number for the DCO is (202) without change, unless the comment provided in the body of a comment will 564–8930. contains copyrighted material, CBI, or be included as part of the comment that D. How Should I Submit CBI To the other information whose disclosure is is placed in the official public docket, restricted by statute. When EPA Agency? and made available in EPA’s electronic identifies a comment containing public docket. If EPA cannot read your copyrighted material, EPA will provide Do not submit information that you comment due to technical difficulties a reference to that material in the consider to be CBI electronically and cannot contact you for clarification, version of the comment that is placed in through EPA’s electronic public docket EPA may not be able to consider your EPA’s electronic public docket. The or by e-mail. You may claim comment. entire printed comment, including the information that you submit to EPA as copyrighted material, will be available i. EPA Dockets. Your use of EPA’s CBI by marking any part or all of that in the public docket. electronic public docket to submit information as CBI (if you submit CBI Public comments submitted on comments to EPA electronically is on disk or CD ROM, mark the outside computer disks that are mailed or EPA’s preferred method for receiving of the disk or CD ROM as CBI and then comments. Go directly to EPA Dockets delivered to the docket will be identify electronically within the disk or at http://www.epa.gov/edocket, and transferred to EPA’s electronic public CD ROM the specific information that is follow the online instructions for docket. Public comments that are CBI). Information so marked will not be mailed or delivered to the docket will be submitting comments. Once in the system, select ‘‘search,’’ and then key in disclosed except in accordance with scanned and placed in EPA’s electronic procedures set forth in 40 CFR part 2. public docket. Where practical, physical docket ID number OPPT–2003–0023. objects will be photographed, and the The system is an ‘‘anonymous access’’ In addition to one complete version of photograph will be placed in EPA’s system, which means EPA will not the comment that includes any electronic public docket along with a know your identity, e-mail address, or information claimed as CBI, a copy of brief description written by the docket other contact information unless you the comment that does not contain the staff. provide it in the body of your comment. information claimed as CBI must be ii. E-mail. Comments may be sent by submitted for inclusion in the public C. How and to Whom Do I Submit e-mail to [email protected], Attention: docket and EPA’s electronic public Comments? Docket ID Number OPPT–2003–0023 docket. If you submit the copy that does The notice of receipt was published and the TME number. In contrast to not contain CBI on disk or CD ROM, late in the 45–day review period; EPA’s electronic public docket, EPA’s e- mark the outside of the disk or CD ROM however, an opportunity to submit mail system is not an ‘‘anonymous clearly that it does not contain CBI. comments is being offered at this time. access’’ system. If you send an e-mail Information not marked as CBI will be You may submit comments comment directly to the docket without included in the public docket and EPA’s electronically, by mail, or through hand going through EPA’s electronic public electronic public docket without prior delivery/courier. To ensure proper docket, EPA’s e-mail system notice. If you have any questions about receipt by EPA, identify the appropriate automatically captures your e-mail CBI or the procedures for claiming CBI, docket ID number and the TME number address. E-mail addresses that are please consult the technical person in the subject line on the first page of automatically captured by EPA’s e-mail FOR FURTHER INFORMATION your comment. Please ensure that your system are included as part of the listed under comments are submitted within the comment that is placed in the official CONTACT.
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E. What Should I Consider as I Prepare customers, and use must not exceed Dated: May 9, 2003. My Comments for EPA? specifications in the application and Miriam Wiggins-Lewis, You may find the following this notice. All other conditions and Acting Chief, New Chemicals Prenotice suggestions helpful for preparing your restrictions described in the application Management Branch, Office of Pollution comments: and in this notice must also be met. Prevention and Toxics. 1. Explain your views as clearly as TME–03–0001. [FR Doc. 03–12870 Filed 5–21–03; 8:45 am] BILLING CODE 6560–50–S possible. Date of Receipt: March 17, 2003. 2. Describe any assumptions that you Notice of Receipt: April 21, 2003 (68 used. FR 19532). 3. Provide copies of any technical FEDERAL ELECTION COMMISSION information and/or data you used that Applicant: PPG Industries, Inc. support your views. Chemical: Modified Polyol. [Notice 2003–11] 4. If you estimate potential burden or Use: Component of coating with open Filing Dates for the Texas Special costs, explain how you arrived at the use. estimate that you provide. Election in the 19th Congressional Production Volume: 4,000 Kiligram/ District 5. Provide specific examples to year. illustrate your concerns. Number of Customers: One. AGENCY: Federal Election Commission. 6. Offer alternative ways to improve ACTION: the notice or collection activity. Test Marketing Period: 270 to 365 Notice of filing dates for special 7. Make sure to submit your days, commencing on first day of election. commerical manufacture. comments by the deadline in this SUMMARY: Texas has scheduled a special The following additional restrictions document. runoff election on June 3, 2003, to fill apply to this TME. A bill of lading 8. To ensure proper receipt by EPA, the U.S. House of Representatives seat accompanying each shipment must state be sure to identify the docket ID number in the Nineteenth Congressional District that the use of the substance is restricted assigned to this action and the TME vacated by Representative Larry to that approved in the TME. In number in the subject line on the first Combest. On May 3, 2003, a Special addition, the applicant shall maintain page of your response. You may also General Election was held, with no the following records until 5 years after provide the name, date, and Federal candidate achieving a majority vote. the date they are created, and shall Register citation. Under Texas law, a Special Runoff make them available for inspection or Election will now be held with the two II. What is the Agency’s Authority for copying in accordance with section 11 top vote-getters participating. Taking this Action? of TSCA: Committees participating in the Texas Section 5(h)(1) of TSCA and 40 CFR 1. Records of the quantity of the TME Special Runoff Election are required to 720.38 authorizes EPA to exempt substance produced and the date of file pre- and post-election reports. persons from premanufacture manufacture. FOR FURTHER INFORMATION CONTACT: Mr. notification (PMN) requirements and 2. Records of dates of the shipments permit them to manufacture or import Kevin R. Salley, Information Division, to each customer and the quantities 999 E Street, NW., Washington, DC new chemical substances for test supplied in each shipment. marketing purposes, if the Agency finds 20463; Telephone: (202) 694–1100; Toll 3. Copies of the bill of lading that that the manufacture, processing, Free (800) 424–9530. accompanies each shipment of the TME distribution in commerce, use, and SUPPLEMENTARY INFORMATION: substance. disposal of the substances for test Principal Campaign Committees marketing purposes will not present an V. What was EPA’s Risk Assessment for unreasonable risk of injury to health or this TME? All principal campaign committees of the environment. EPA may impose candidates participating in the Texas restrictions on test marketing activities EPA identified no significant health Special Runoff Election shall file a 12- and may modify or revoke a test or environmental concerns for the test day Pre-Runoff Report on May 22, 2003; marketing exemption upon receipt of market substance. Therefore, the test and a 30-day Post-Runoff Report on July new information which casts significant market activities will not present any 3, 2003. (See chart below for the closing doubt on its finding that the test unreasonable risk of injury to human date for each report). health or the environment. marketing activity will not present an Unauthorized Committees (PACs and unreasonable risk of injury. VI. Can EPA Change Its Decision on this Party Committees) TME in the Future? III. What Action is the Agency Taking? Political committees that file on a EPA has approved the above- Yes. The Agency reserves the right to semiannual basis in 2003 are subject to referenced TME. EPA has determined rescind approval or modify the special election reporting if they make that test marketing the new chemical conditions and restrictions of an previously undisclosed contributions or substance, under the conditions set out exemption should any new information expenditures in connection with the in the TME application and in this that comes to its attention cast Texas Special Runoff Election by the notice, will not present any significant doubt on its finding that the close of books for the applicable unreasonable risk of injury to health or test marketing activities will not present report(s). (See chart below for the the environment. any unreasonable risk of injury to closing date for each report). human health or the environment. Committees filing monthly that IV. What Restrictions Apply to this List of Subjects support candidates in the Texas Special TME? Runoff Election should continue to file The test market time period, Environmental protection, Test according to the monthly reporting production volume, number of marketing exemptions. schedule.
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CALENDAR OF REPORTING DATES FOR TEXAS SPECIAL ELECTION COMMITTEES INVOLVED IN THE SPECIAL RUNOFF (06/03/ 03) MUST FILE
Reg./Cert. Report Close of Filing date books 1 mailing date 2
Pre-Runoff ...... 05/14/03 05/19/03 05/22/03 Post-Runoff ...... 06/23/03 07/03/03 07/03/03 1 The period begins with the close of books of the last report filed by the committee. If the committee has filed no previous reports, the period begins with the date of the committee’s first activity. 2 Pre- and Post-Runoff Reports sent registered or certified mail must be postmarked by the mailing date; otherwise, they must be received by the filing date. Committees should keep the mailing receipt with its postmark as proof of filing.
Dated: May 16, 2003. inspection at the Federal Reserve Bank CFR Part 225) to engage de novo, or to Ellen L. Weintraub, indicated. The application also will be acquire or control voting securities or Chair, Federal Election Commission. available for inspection at the offices of assets of a company, including the [FR Doc. 03–12790 Filed 5–21–03; 8:45 am] the Board of Governors. Interested companies listed below, that engages BILLING CODE 6715–01–P persons may express their views in either directly or through a subsidiary or writing on the standards enumerated in other company, in a nonbanking activity the BHC Act (12 U.S.C. 1842(c)). If the that is listed in § 225.28 of Regulation Y FEDERAL MARITIME COMMISSION proposal also involves the acquisition of (12 CFR 225.28) or that the Board has a nonbanking company, the review also determined by Order to be closely includes whether the acquisition of the Sunshine Act Meeting related to banking and permissible for nonbanking company complies with the bank holding companies. Unless AGENCY HOLDING THE MEETING: Federal standards in section 4 of the BHC Act otherwise noted, these activities will be Maritime Commission. (12 U.S.C. 1843). Unless otherwise conducted throughout the United States. TIME AND DATE: 10 a.m.—May 28, 2003. noted, nonbanking activities will be conducted throughout the United States. Each notice is available for inspection PLACE: 800 North Capitol Street, NW., Additional information on all bank at the Federal Reserve Bank indicated. First Floor Hearing Room, Washington, holding companies may be obtained DC. The notice also will be available for from the National Information Center inspection at the offices of the Board of STATUS: Closed. Web site at www.ffiec.gov/nic/. Governors. Interested persons may MATTERS TO BE CONSIDERED: Fact Unless otherwise noted, comments express their views in writing on the Finding Investigation No. 25—Practices regarding each of these applications question whether the proposal complies of Transpacific Stabilization Agreement must be received at the Reserve Bank with the standards of section 4 of the Members Covering the 2002–2003 indicated or the offices of the Board of BHC Act. Additional information on all Service Contract Season. Governors not later than June 16, 2003. bank holding companies may be CONTACT PERSON FOR MORE INFORMATION: A. Federal Reserve Bank of Dallas (W. Arthur Tribble, Vice President) 2200 obtained from the National Information Bryant L. VanBrakle, Secretary, (202) Center Web site at www.ffiec.gov/nic/. 523–5725. North Pearl Street, Dallas, Texas 75201- 2272: Unless otherwise noted, comments Bryant L. VanBrakle, 1. Afin, Ltd., and Anvest, Inc., both of regarding the applications must be Secretary. Cleburne, Texas; to become bank received at the Reserve Bank indicated [FR Doc. 03–12990 Filed 5–20–03; 11:46 am] holding companies by acquiring 85.42 or the offices of the Board of Governors BILLING CODE 6730–01–M percent of the voting shares of not later than June 5, 2003. Grandview Bancshares, Inc., Grandview, Texas, and thereby indirectly acquire A. Federal Reserve Bank of Dallas (W. Arthur Tribble, Vice President) 2200 FEDERAL RESERVE SYSTEM voting shares of First State Bank, Grandview, Texas. North Pearl Street, Dallas, Texas 75201- 2272: Formations of, Acquisitions by, and Board of Governors of the Federal Reserve Mergers of Bank Holding Companies System, May 16, 2003. 1. Inwood Bancshares, Inc. Dallas, Texas; to engage de novo through its The companies listed in this notice Jennifer J. Johnson, subsidiary, Inwood Asset Management, have applied to the Board for approval, Secretary of the Board. Inc., Dallas, Texas, in financial and pursuant to the Bank Holding Company [FR Doc. 03–12811 Filed 5–21–03; 8:45 am] investment advisory activities pursuant Act of 1956 (12 U.S.C. 1841 et seq.) BILLING CODE 6210–01–S (BHC Act), Regulation Y (12 CFR Part to section 225.28(b)(6)(i) of Regulation 225), and all other applicable statutes Y. and regulations to become a bank FEDERAL RESERVE SYSTEM Board of Governors of the Federal Reserve holding company and/or to acquire the Notice of Proposals to Engage in System, June 16, 2003. assets or the ownership of, control of, or Permissible Nonbanking Activities or Jennifer J. Johnson, the power to vote shares of a bank or to Acquire Companies that are Secretary of the Board. bank holding company and all of the Engaged in Permissible Nonbanking [FR Doc.03–12810 Filed 5–21–03; 8:45 am] banks and nonbanking companies Activities owned by the bank holding company, BILLING CODE 6210–01–S including the companies listed below. The companies listed in this notice The applications listed below, as well have given notice under section 4 of the as other related filings required by the Bank Holding Company Act (12 U.S.C. Board, are available for immediate 1843) (BHC Act) and Regulation Y (12
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GENERAL SERVICES DC 20405. Please cite OMB Control page 24746 ‘‘Date and Time’’ should ADMINISTRATION Number 3090–0278. read: May 27, 2003, through May 28, SUPPLEMENTARY INFORMATION: 2003. [OMB Control No. 3090–0278] Contact Person for More Information: A. Purpose Joan Karr, Ph.D., Scientific Review National Contact Center; Customer This information collection will be Administrator, Public Health Program Evaluation Survey used to assess the public’s satisfaction Practice Office, CDC, 4770 Buford with the NCC service, to assist in Highway, NE., MS–K–38, Atlanta, GA AGENCY: Citizen Services and increasing the efficiency in responding 30341, Telephone 770.488.2597. Communications, Federal Citizen to the public’s need for Federal The Director, Management Analysis Information Center, (GSA). information, and to assess the and Services Office has been delegated ACTION: Notice of a new one-time effectiveness of marketing efforts. the authority to sign Federal Register collection. notices pertaining to announcements of B. Annual Reporting Burden meetings and other committee SUMMARY: Under the provisions of the Respondents: 2,250. management activities, for both the Paperwork Reduction Act of 1995 (44 Responses Per Respondent: 1. Centers for Disease Control and U.S.C. Chapter 35), the General Services Total Responses: 2,250. Prevention and the Agency for Toxic Administration, Office of Citizen Hours Per Response: .05 (3 minutes). Substances and Disease Registry. Services and Communications (OSCS), Total Burden Hours: 112.5. Federal Citizen Information Center, Obtaining Copies of Proposals: Dated: May 14, 2003. National Contact Center (NCC) has Requesters may obtain a copy of the Alvin Hall, submitted to the Office of Management information collection documents from Director, Management Analysis and Services and Budget (OMB) a request to review the General Services Administration, Office, Centers for Disease Control and and approve a new information Regulatory and Federal Assistance Prevention (CDC). collection requirement concerning Publications Division (MVA), 1800 F [FR Doc. 03–12707 Filed 5–21–03; 8:45 am] Customer Evaluation Survey. A request Street, NW., Room 4035, Washington, BILLING CODE 4163–18–P for public comments was published at DC 20405, telephone (202) 208–7312, or 68 FR 5293, February 3, 2003. No by faxing your request to (202) 501– comments were received. 4067. Please cite 3090–0278, National DEPARTMENT OF HEALTH AND This information collection will be Contact Center Customer Evaluation HUMAN SERVICES used to assess the public’s satisfaction Survey in all correspondence. with the NCC service, to assist in Centers for Disease Control and Dated: May 15, 2003. increasing the efficiency in responding Prevention Michael W. Carleton, to the public’s need for Federal Citizens Advisory Committee on Public information, and to assess the Chief Information Officer (I). [FR Doc. 03–12894 Filed 5–21–03; 8:45 am] Health Service Activities and Research effectiveness of marketing efforts. The at Department of Energy (DOE) Sites: BILLING CODE 6820–CX–M respondents include users of the NCC. Idaho National Engineering and Public comments are particularly Environmental Laboratory Health invited on: Whether this collection of Effects Subcommittee (INEELHES) information is necessary for the proper DEPARTMENT OF HEALTH AND performance of the functions of the HUMAN SERVICES In accordance with section 10(a)(2) of agency including whether it will have the Federal Advisory Committee Act practical utility; whether our estimate of Centers for Disease Control and (Pub. L. 92–463), the Agency for Toxic the public burden of this collection of Prevention Substances and Disease Registry information is accurate, and based on (ATSDR) and the Centers for Disease Disease, Disability, and Injury valid assumptions and methodology; Control and Prevention (CDC) announce Prevention and Control Special ways to enhance the quality, utility, and the following meeting. Emphasis Panel: Research on the clarity of the information to be Impact of Law on Public Health, NAME: Citizens Advisory Committee on collected, including through the use of Program Announcement #03049 Public Health Service Activities and automated collection techniques or Correction Research at DOE Sites: INEELHES. other forms of information technology. TIMES AND DATES: 8:30 a.m.–4 p.m., July DATES: Submit comments on or before: ACTION: Notice; correction. 1, 2003. June 23, 2003. 8:30 a.m.–10:45 a.m., July 2, 2003. Name: Disease, Disability, and Injury FOR FURTHER INFORMATION CONTACT: PLACE: The Grove Hotel, A WestCoast Tonya Beres, Office of Citizens Services Prevention and Control Special Grand Hotel, 245 South Capitol and Communications, at (202) 501– Emphasis Panel (SEP): Research on the Boulevard, Boise, Idaho 83702, 1803. Impact of Law on Public Health, telephone 208–333–8000, fax 208–333– Program Announcement #03049. 8800. ADDRESSES: Submit comments regarding Times and Dates: 3 p.m.–3:30 p.m., this burden estimate or any other aspect May 27, 2003 (open). 3:30 p.m.–7 p.m., STATUS: Open to the public, limited only of this collection of information, May 27, 2003 (closed). 8 a.m.–5 p.m., by the space available. The meeting including suggestions for reducing this May 28, 2003 (closed). room accommodates approximately 50 burden to Ms. Jeanette Thornton, GSA Place: Marriott Perimeter Center, 246 people. Desk Officer, OMB, Room 10236, NEOB, Perimeter Center Parkway, NE., Atlanta, BACKGROUND: Under a Memorandum of Washington, DC 20503, and a copy to GA 30346, Telephone 770.270.0422. Understanding (MOU) signed in General Services Administration, December 1990 with DOE, and replaced Regulatory and Federal Assistance Correction by MOUs signed in 1996 and 2000, the Publications Division (MVA), 1800 F In the Federal Register of May 8, Department of Health and Human Street, NW., Room 4035, Washington, 2003, volume 68, number 89, notice, Services (HHS) was given the
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responsibility and resources for the authority to sign Federal Register a prospective payment system for conducting analytic epidemiologic notices pertaining to announcements of hospital outpatient services. The rule investigations of residents of meetings and other committee also establishes in regulations the communities in the vicinity of DOE management activities for both CDC and requirements for designating certain facilities, workers at DOE facilities, and ATSDR. entities as provider-based or as a other persons potentially exposed to Dated: May 15, 2003. department of a hospital; Frequency: radiation or to potential hazards from Alvin Hall, Other—as needed; Affected Public: Business or other for-profit, and not-for- non-nuclear energy production use. Director, Management Analysis and Services HHS delegated program responsibility Office, Centers for Disease Control and profit institutions; Number of to CDC. Prevention (CDC). Respondents: 750; Total Annual In addition, an MOU was signed in [FR Doc. 03–12837 Filed 5–21–03; 8:45 am] Responses: 2,272; Total Annual Hours: October 1990 and renewed in 1992, 41,063. BILLING CODE 4163–18–P 1996, and 2000, between ATSDR and To obtain copies of the supporting DOE. The MOU delineates the statement and any related forms for the responsibilities and procedures for DEPARTMENT OF HEALTH AND proposed paperwork collections ATSDR’s public health activities at DOE HUMAN SERVICES referenced above, access CMS Web site sites required under sections 104, 105, address at http://cms.hhs.gov/ 107, and 120 of the Comprehensive Centers for Medicare and Medicaid regulations/pra/default.asp, or e-mail Environmental Response, Services your request, including your address, phone number, OMB number, and CMS Compensation, and Liability Act [Document Identifier: CMS–R–240] (CERCLA or ‘‘Superfund’’). These document identifier, to activities include health consultations Agency Information Collection [email protected], or call the Reports and public health assessments at DOE Activities: Submission for OMB Clearance Office on (410) 786–1326. sites listed on, or proposed for, the Review; Comment Request Written comments and Superfund National Priorities List and recommendations for the proposed at sites that are the subject of petitions AGENCY: Centers for Medicare and information collections must be mailed from the public; and other health- Medicaid Services. within 30 days of this notice directly to related activities such as epidemiologic In compliance with the requirement the OMB desk officer: OMB Human studies, health surveillance, exposure of section 3506(c)(2)(A) of the Resources and Housing Branch, and disease registries, health education, Paperwork Reduction Act of 1995, the Attention: Brenda Aguilar, New substance-specific applied research, Centers for Medicare and Medicaid Executive Office Building, Room 10235, emergency response, and preparation of Services (CMS) (formerly known as the Washington, DC 20503. Fax Number: toxicological profiles. Health Care Financing Administration (202) 395–6974. (HCFA), Department of Health and PURPOSE: This subcommittee is charged Dated: May 15, 2003. Human Services, is publishing the with providing advice and following summary of proposed Dawn Willinghan, recommendations to the Director, CDC, collections for public comment. CMS Reports Clearance Officer, Division of and the Administrator, ATSDR, Interested persons are invited to send Regulations Development and Issuances, regarding community concerns comments regarding this burden Office of Strategic Operations and Regulatory Affairs. pertaining to CDC’s and ATSDR’s public estimate or any other aspect of this health activities and research at this collection of information, including any [FR Doc. 03–12800 Filed 5–21–03; 8:45 am] DOE site. The purpose of this meeting of the following subjects: (1) The BILLING CODE 4120–03–P is to provide a forum for community necessity and utility of the proposed interaction and to serve as a vehicle for information collection for the proper community concerns to be expressed as DEPARTMENT OF HEALTH AND performance of the agency’s functions; HUMAN SERVICES advice and recommendations to CDC (2) the accuracy of the estimated and ATSDR. burden; (3) ways to enhance the quality, Centers for Medicare and Medicaid MATTERS TO BE DISCUSSED: Agenda items utility, and clarity of the information to Services include a presentation on be collected; and (4) the use of Concentrations of Pollutants in the automated collection techniques or [Document Identifier: CMS–684A–I, CMS– Aquifer over a Long Period of Time; other forms of information technology to 685, and CMS–10084] Status Report on Dose Reconstruction; minimize the information collection DOE Low-Level Radiation Research Agency Information Collection burden. Activities: Proposed Collection; Program; and a presentation by ATSDR (1) Type of Information Collection Comment Request on the Public Comment Draft of the Request: Extension of a currently Public Health Assessment. Agenda approved collection; Title of AGENCY: Centers for Medicare and items are subject to change as priorities Information Collection: Prospective Medicaid Services. dictate. Payments for Hospital Outpatient In compliance with the requirement CONTACT PERSON FOR MORE INFORMATION: Services and Supporting Regulations in of section 3506(c)(2)(A) of the Natasha Friday, Executive Secretary, 42 CFR 413.24, 413.65, and 419.42; Paperwork Reduction Act of 1995, the INEELHES, Radiation Studies Branch, Form No.: CMS–R–240 (OMB# 0938– Centers for Medicare and Medicaid Division of Environmental Hazards and 0798); Use: As required by sections Services (CMS) (formerly known as the Health Effects, National Center for 4521, 4522, and 4523 of the Balanced Health Care Financing Administration Environmental Health, CDC, 1600 Budget Act of 1997, CMS–1005FC (CMS)), Department of Health and Clifton Road, NE., (E–39), Atlanta, eliminates the formula driven Human Services, is publishing the Georgia 30333, telephone 404–498– overpayment for certain outpatient following summary of proposed 1800, fax 404–498–1811. hospital services, extends reductions in collections for public comment. The Director, Management Analysis payment for costs of hospital outpatient Interested persons are invited to send and Services Office, has been delegated services, and establishes in regulations comments regarding this burden
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estimate or any other aspect of this experiencing problems accessing (AFCARS). There is an error in the collection of information, including any physician services. CMS will use data mailbox address set up to receive e-mail of the following subjects: (1) The collected to determine if access written comments on AFCARS. The necessity and utility of the proposed problems exist at all, where and why correct address is information collection for the proper problems may arise, whom they affect, [email protected] (there is performance of the agency’s functions; and what the consequences are for an underscore between ‘‘AFCARS’’ and (2) the accuracy of the estimated Medicare beneficiaries. CMS will also ‘‘Project’’). Likewise, the section burden; (3) ways to enhance the quality, learn the extent to which physician regarding further information should utility, and clarity of the information to access problems are Medicare-specific.; reflect the corrected e-mail address: be collected; and (4) the use of Frequency: One-time; Affected Public: [email protected]. automated collection techniques or Individuals or Households; Number of other forms of information technology to Respondents: 4,000; Total Annual FOR FURTHER INFORMATION: Questions minimize the information collection Responses: 4,000; Total Annual Hours: regarding this correction may be burden. 958. submitted to and will be answered by e- 1. Type of Information Collection To obtain copies of the supporting mail at the Request: Extension of a currently statement and any related forms for the [email protected] or via the approved collection; Title of proposed paperwork collections Children’s Bureau address, 330 ‘‘C’’ St., Information Collection: End-Stage Renal referenced above, access CMS’s Web site Disease (ESRD) Network Business SW., Washington, DC 20447, Attention: address at http://cms.hhs.gov/ Penelope L. Maza. Proposal Forms and Supporting regulations/pra/default.asp, or E-mail Regulations in 42 CFR 405.2110 and your request, including your address, Dated: May 16, 2003. 405.2112; Form No.: CMS–684A–I phone number, OMB number, and CMS Frank Fuentes, (OMB# 0938–0658); Use: The document identifier, to Deputy Commissioner, Administration on submission of business proposal [email protected], or call the Children, Youth and Families. information by current ESRD networks Reports Clearance Office on (410) 786– [FR Doc. 03–12797 Filed 5–21–03; 8:45 am] and other bidders, according to the 1326. Written comments and BILLING CODE 4184–01–M business proposal instructions, meets recommendations for the proposed CMS’s need for meaningful, consistent, information collections must be mailed and verifiable data when evaluating within 60 days of this notice directly to DEPARTMENT OF HEALTH AND contract proposals; Frequency: Other: the CMS Paperwork Clearance Officer HUMAN SERVICES every 3 years; Affected Public: Not-for- designated at the following address: profit institutions; Number of CMS, Office of Strategic Operations and Food and Drug Administration Respondents: 18; Total Annual Regulatory Affairs, Division of Responses: 36; Total Annual Hours: Regulations Development and [Docket No. 95F–0221] 1,080. Issuances, Attention: Dawn Willinghan, 2. Type of Information Collection Room: C5–14–03, 7500 Security Request: Extension of a currently DuCoa L.P. ; Filing of Food Additive Boulevard, Baltimore, Maryland 21244– approved collection; Title of Petition (Animal Use); Natamycin; 1850. Information Collection: End-Stage Renal Change of Petitioner’s Name Disease (ESRD) Network Semi-Annual Dated: May 15, 2003. Cost Report Forms and Supporting Dawn Willinghan, AGENCY: Food and Drug Administration, Regulations in 42 CFR 405.2110 and CMS Reports Clearance Officer, Division of HHS. Regulations Development and Issuances, 405.2112; Form No.: CMS–685 (OMB# ACTION: Notice. 0938–0657); Use: Submission of semi- Office of Strategic Operations and Strategic annual cost reports allows CMS to Affairs. SUMMARY: review, compare, and project ESRD [FR Doc. 03–12801 Filed 5–21–03; 8:45 am] The Food and Drug Administration (FDA) has been notified network costs. The reports are used as BILLING CODE 4120–03–P an early warning system to determine by the petitioner, DuCoa L.P., that it has whether the networks are in danger of changed its name to Arkion Life exceeding the total cost of the contract. DEPARTMENT OF HEALTH AND Sciences, doing business at the same Additionally, CMS can analyze line HUMAN SERVICES address. On September 20, 1995 (60 FR item costs to identify any significant 48715), a Federal Register notice aberrations; Frequency: Semi-annually; Administration for Children and announced that a food additive petition Affected Public: Not-for-profit Families (FAP 2234) had been filed by DuCoa institutions; Number of Respondents: Request for Public Comment on the L.P. proposing the use of natamycin as 18; Total Annual Responses: 36; Total Improvement of the Adoption and a mold retardent in broiler chicken feed. Annual Hours: 108. Foster Care Analysis and Reporting 3. Type of Information Collection FOR FURTHER INFORMATION CONTACT: System (AFCARS) Request: Extension of a currently Karen Ekelman, Center for Veterinary approved collection; Title of AGENCY: Administration on Children, Medicine (HFV–228), Food and Drug Information Collection: Design and Youth and Families (ACYF), ACF, Administration, 7500 Standish Pl., Implementation of a Targeted DHHS. Rockville, MD 20855, 301–827–6653, e- mail: [email protected]. Beneficiary Survey on Access to ACTION: Correction to notice of request Physician Services Among Medicare for public comment. Dated: May 14, 2003. Beneficiaries; Form No.: CMS–10084 Stephen F. Sundlof, (OMB# 0938–0890); Use: This survey of SUMMARY: On April 28, 2003, ACF Medicare beneficiaries in targeted published a notice of request for Director, Center for Veterinary Medicine. communities will be used to obtain comments on the Adoption and Foster [FR Doc. 03–12784 Filed 5–21–03; 8:45 am] information on whether they are Care Analysis and Reporting System BILLING CODE 4160–01–S
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DEPARTMENT OF HOUSING AND FOR FURTHER INFORMATION CONTACT: Title of Proposal: Notice of Funding URBAN DEVELOPMENT Susan Brunson, 202–708–3061, ext. Availability for the Alaskan Native/ 3852 (this is not a toll-free number), for Native Hawaiian Institutions Assisting [Docket No. FR–4818–N–06] copies of the proposed forms and other Communities (AN/NHIAC) Program. Notice of Proposed Information available documents. OMB Control Number: 2528–0206 (exp. 05/31/03). Collection for Public Comment: Notice SUPPLEMENTARY INFORMATION: The Description of the Need for the of Funding Availability for the Alaskan Department of Housing and Urban Information and Proposed Use: The Native/Native Hawaiian Institutions Development will submit the proposed information is being collected to select Assisting Communities (AN/NHIAC) extension of information collection to applicants for award in this statutorily Program OMB for review, as required by the created competitive grant program and Paperwork Reduction Act of 1995 (44 AGENCY: Office of the Assistant too monitor performance of grantees to U.S.C. chapter 35, as amended). Secretary for Policy Development and ensure they meet statutory and program Research, HUD. This notice soliciting comments from goals and requirements. ACTION: Notice. members of the public and affected Agency Form Numbers: HUD 424, agencies concerning the proposed HUD 424B, HUD–424C, HUD–424–CB, SUMMARY: The proposed information collection of information to: (1) Evaluate SFLLL, HUD 2880, HUD 2991, HUD collection requirement described below whether the proposed collection of 2990, HUD 2993, and HUD 2994. will be submitted to the Office of information is necessary for the proper Members of the Affected Public: Management and Budget (OMB) for performance of the functions of the Alaskan Native Institutions (ANI) and review, as required by the Paperwork agency, including whether the Native Hawaiian Institutions (NHI) of Reduction Act. The Department is information will have practical utility; higher education that meet the statutory soliciting public comments on the (2) evaluate the accuracy of the agency’s definition established in title III, part A, subject proposal. estimate of the burden of the proposed section 317 of the Higher Education Act DATES: Comment Due Date: July 21, collection of information; (3) enhance of 1965, as amended by the Higher 2003. the quality, utility, and clarity of the Education Amendments of 1998 (Pub. L. ADDRESSES: Interested persons are information to be collected; and (4) 105–244; enacted October 7, 1998). invited to submit comments regarding minimize the burden of the collection of Estimation of the total number of this proposal. Comments should refer to information on those who are to hours needed to prepare the information the proposal by name and/or OMB respond; including through the use of collection including number of Control Number and should be sent to: appropriate automated collection respondents, frequency of response, and Reports Liaison Officer, Office of Policy techniques or other forms of information hours of response: Information pursuant Development and Research, Department technology, e.g., permitting electronic to grant award will be submitted once of Housing and Urban Development, submission of responses. a year. The following chart details the 451 7th Street, SW., Room 8228, This notice also lists the following respondent burden on an annual and Washington, DC 20410–6000. information: semi-annual basis:
Number of Total annual Hours per respondents responses response Total hours
Applicants ...... 20 20 40 800 Semi-Annual Reports ...... 10 20 6 120 Final Reports ...... 10 10 8 80 Recordkeeping ...... 10 10 5 50
Total ...... 59 1050
Status of the proposed information DEPARTMENT OF THE INTERIOR ADDRESSES: EXXON VALDEZ Oil Spill collection: Pending OMB approval. Trustee Council, 441 West 5th Avenue, Office of the Secretary Authority: Section 3506 of the Suite 500, Anchorage, Alaska 99501. Paperwork Act of 1995, 44 U.S.C. EXXON VALDEZ Oil Spill Trustee FOR FURTHER INFORMATION CONTACT: The chapter 35, as amended. Council; Invitation for Proposals Trustee Council Office, 907–278–8012 Dated: May 15, 2003. or toll free at 800–478–7745 (in Alaska) AGENCY: Office of the Secretary, or 800–283–7745 (outside Alaska) or via Christopher D. Lord, Department of the Interior. Internet at http:// Deputy Assistant, Secretary for Policy ACTION: Notice. www.oilspill.state.ak.us. Development. [FR Doc. 03–12799 Filed 5–21–03; 8:45 am] SUMMARY: The EXXON VALDEZ Oil SUPPLEMENTARY INFORMATION: Following Spill Trustee Council is asking the BILLING CODE 4210–62–M the EXXON VALDEZ oil spill in March public, private organizations, and 1989, a Trustee Council of three state government agencies to submit and three federal trustees, including the proposals for implementation of the Secretary of the Interior, was formed. Gulf Ecosystem Monitoring and The Trustee Council prepared a Research Program. The Invitation to restoration plan for the injured Submit Restoration Proposals for resources and services within the oil Federal Fiscal Year 2004 is available on spill area. The restoration plan called the Trustee Council Internet site. for annual work plans identifying DATES: Proposals are due June 16, 2003. projects to accomplish restoration. An
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extension of the Restoration Plan, the DEPARTMENT OF THE INTERIOR County, Oregon, have been found Gulf Ecosystem Monitoring and suitable for sale under Sections 203 and Research Program, also requires Bureau of Land Management 209 of the Federal Land Policy and implementation through annual work [OR–025–03–1430–EU: G–3–0142] Management Act of 1976, as amended, plans. Each year proposals for (90 Stat. 2750, 43 U.S.C. 1713 and 1719) restoration, monitoring, and research Realty Action: Sale of Public Land in at not less than their respective projects are solicited from a variety of Harney County, OR appraised market value. All parcels organizations, including the public. proposed for sale are identified for AGENCY: Bureau of Land Management disposal in the Three Rivers Resource Willie R. Taylor, (BLM), Interior. Director, Office of Environmental Policy and Management Plan. All of the land ACTION: Notice of realty action. Compliance. described is within the Willamette [FR Doc. 03–12850 Filed 5–21–03; 8:45 am] SUMMARY: The following described Meridian. BILLING CODE 4310–RG–P parcels of public land in Harney
Market Parcel No. Legal description Acres value/min- Bidding procedures Designated imum bid bidders
OR–57461 ... T. 20S., R. 35E., sec. 7, E1⁄2SE1⁄4; sec. 8, 160 $24,800 Competitive...... None. W1⁄2SW1⁄4. ORÐ57462 ... T. 21S., R. 31E., sec. 5, lots 5, 6, 7 and 8 ...... 109.42 15,900 Competitive ...... None. ORÐ57463 ... T. 22S., R. 29E., sec. 28, W1⁄2SW1⁄4 ...... 80 12,800 Competitive...... None. ORÐ57464 ... T. 22S., R. 33E., sec. 22, NW1⁄4NW1⁄4 ...... 40 3,000 Modified Competitive ...... Temple and Tem- ple, Lost Springs Ranch, LLC. ORÐ57465 ... T. 22S., R. 33E., sec. 22, SW1⁄4SW1⁄4 ...... 40 3,000 Modified Competitive ...... Temple and Tem- ple, Lost Springs Ranch, LLC, Bailey and Barton. ORÐ57466 ... T. 26S., R. 24E., sec. 34, NW1⁄4NE1⁄4 ...... 40 2,600 Competitive...... None. ORÐ57467 ... T. 25S., R. 32E., sec. 29, NE1⁄4 ...... 160 16,600 Competitive...... None. ORÐ57468 ... T. 26S., R. 31E. (North of Malheur Lake), sec. 1, 160 11,600 Modified Competitive ...... Tyler Brothers, NE1⁄4. Ralph Tice c/o Wallace M. Tice. ORÐ57469 ... T. 26S., R. 32E. (North of Malheur Lake), sec. 6, lot 40.62 3,050 Modified Competitive ...... Tyler Brothers, 3. Ralph Tice c/o Wallace M. Tice, Bethany Evangelical Free Church c/ o Jamie Porter. ORÐ57470 ... T. 26S., R. 32E. (North of Malheur Lake), sec. 6, 80 5,800 Modified Competitive ...... Tyler Brothers, N1⁄2SE1⁄4. Ralph Tice c/o Wallace M. Tice, William D. Cramer c/o Daniel L. Cronin. ORÐ57471 ... T. 26S., R. 30E., (North of Harney Lake), sec. 12, 80 6,000 Competitive...... None. SW1⁄4SW1⁄4; sec. 13, NW1⁄4NW1⁄4. ORÐ57472 ... T. 26S., R. 30E., (North of Harney Lake), sec. 15, 120 8,400 Competitive...... None. S1⁄2SE1⁄4; sec. 22, NW1⁄4NE1⁄4. ORÐ57473 ... T. 26S., R. 30E., (North of Harney Lake), sec. 24, 40 3,000 Competitive...... None. NE1⁄4SE1⁄4. ORÐ57474 ... T. 26S., R. 31E. (North of Malheur Lake), sec. 18, 39.18 3,150 Competitive ...... None. lot 4. ORÐ57475 ... T. 26S., R. 34E sec. 27, N1⁄2SW1⁄4; sec. 28, 120 8,400 Modified Competitive ...... Zachary O. NE1⁄4SE1⁄4. Sword, Nevin and Shirley Thompson, Trustees. ORÐ57476 ... T. 26S., R. 34E., sec. 29, NE1⁄4NE1⁄4 ...... 40 3,200 Modified Competitive ...... Zachary O. Sword, Nevin and Shirley Thompson, Trustees.
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Market Parcel No. Legal description Acres value/min- Bidding procedures Designated imum bid bidders
ORÐ57477 ... T. 26S., R. 34E., sec. 29, SW1⁄4NE1⁄4 ...... 40 3,200 Modified Competitive ...... Zachary O. Sword, Nevin and Shirley Thompson, Trustees.
The 17 parcels described above of Realty Action published in the declared unsold under the provisions of contain 1,389.22 acres in Harney Federal Register on November 16, 2000 those notices. They have been County, Oregon. and May 1, 2002. No bids were received reappraised and are being reoffered The following parcels were originally and these parcels were subsequently competitively. offered in 2001 and 2002 under Notices
Market Parcel No. Legal description Acres value/Min- Bidding procedures Designated imum bid bidders
ORÐ55323 ... T. 25S., R. 31E., sec. 1, lots 1 and 2 ...... 79.79 $5,600 Competitive ...... None. ORÐ56574 ... T. 22S., R. 33E., sec. 28, E1⁄2 ...... 320 40,000 Competitive...... None. ORÐ56575 ... T. 27S., R. 34E., sec. 6, lots 3, 4, 5, SE1⁄4NW1⁄4 ...... 145.56 21,100 Competitive ...... None. ORÐ56576 ... T. 27S., R. 34E., sec. 9, SW1⁄4SW1⁄4 ...... 40 3,600 Competitive...... None. ORÐ56577 ... T. 27S., R. 34E., sec. 21, NE1⁄4SE1⁄4 ...... 40 3,200 Competitive...... None. ORÐ56579 ... T. 27S., R. 34E., sec. 23, S1⁄2SW1⁄4; sec. 26, N1⁄2NW1⁄4 ...... 160 11,200 Competitive...... None.
The six parcels described above line purposes granted to Harney Electric authority contained in Section 3(d) of contain 785.35 acres in Harney County, Cooperative (ORE–05183) and a right-of- Executive Order 11988 of May 24, 1977. Oregon. The total area of these six way for telephone line purposes held by OR–57469—The conveyance parcels plus the preceding 17 parcels CenturyTel (ORE–018562). document for this parcel would contain amount to 2,174.57 acres. The following OR–57461—The sale of this parcel a floodplain covenant pursuant to the rights, reservations, and conditions will would be subject to a right-of-way for authority contained in Section 3(d) of be included in the conveyances of the electric power transmission and Executive Order 11988 of May 24, 1977. land: distribution purposes granted to Idaho OR–57470—The conveyance All parcels—A reservation for a right- Power (ORE–0874); a right-of-way for document for this parcel would contain of-way for ditches and canals county road purposes granted to Oregon a floodplain covenant pursuant to the constructed thereon by the authority of Department of Transportation, on behalf authority contained in Section 3(d) of United States. of Harney County (ORE–03347); a right- Executive Order 11988 of May 24, 1977. Access will not be guaranteed to any OR–56574—The sale of this parcel of-way for buried communication cable of the parcels that may be sold, nor will would be subject to a right-of-way for purposes granted to CenturyTel of any warranty be made as to the title or electric distribution line purposes Oregon, Inc. (OR–55250); a right-of-way use of the property in violation of granted to Harney Electric Cooperative for road purposes granted to Richard D. applicable land use laws and (ORE–05183); a right-of-way for electric Boatwright, Jr. (OR–57058), and a right- regulations. Each parcel will be sold in transmission line purposes granted to of-way for road purposes granted to ‘‘as is’’ condition. Before submitting a Idaho Power Company (ORE–012080); a Charles Dunten (OR–58413). bid, prospective purchasers should right-of-way for buried communication OR–57462—The sale of this parcel cable purposes (OR–54600) and buried check with the appropriate city or would be subject to a right-of-way for county planning department to verify fiber optics facilities (OR–54915) electric power transmission purposes granted to CenturyTel; a right-of-way for approved uses. All persons, other than granted to Oregon Trail Electric the successful bidders, claiming to own highway purposes granted to Oregon Cooperative (ORE–016812). Department of Transportation (TD– unauthorized improvements on the land 030389); and a right-of-way for buried OR–57463—The sale of this parcel are allowed 60 days from the date of fiber optics facilities granted to would be subject to a right-of-way for sale to remove the improvements. Williams Communications, LLC (OR– road purposes held by Harney County Each of the above described parcels is 54252). (OR–20557). hereby segregated from appropriation OR–56575—The conveyance OR–57467—The conveyance under the public land laws, including document for this parcel would contain document for this parcel would contain the mining laws, until conveyance of a wetland/riparian covenant pursuant to a wetland/riparian covenant pursuant to the land pending disposition of this the authority contained in Section (4) of the authority contained in Section (4) of action, or until February 17, 2004, Executive Order 11990 of May 24, 1977. Executive Order 11990 of May 24, 1977 whichever occurs first. The sale of this parcel would be subject and a floodplain covenant pursuant to Bidding Procedures to a right-of-way for public road the authority contained in Section 3(d) purposes granted to Harney County of Executive Order 11988 of May 24, Competitive Procedures (OR–56834). 1977. The Federal Land Policy and OR–56576—The sale of this parcel OR–57468—The conveyance Management Act and its implementing would be subject to a right-of-way for document for this parcel would contain sale regulations (43 CFR part 2710) power transmission and distribution a floodplain covenant pursuant to the provide that competitive bidding will be
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the general method of selling land consideration. Failure to act by all of the Prospective purchasers will be supported by factors such as designated bidders will result in the allowed 180 days to submit the balance competitive interest, accessibility, and parcel being offered to the apparent high of the purchase price. Failure to meet usability of the parcel, regardless of bidder or being declared unsold, if no this timeframe shall cause the deposit to adjacent ownership. bids were received in the initial round be forfeited to the BLM. The parcel will Under competitive procedures the of bidding. then be offered to the next lowest land will be sold to any qualified bidder qualified bidder, or if no other bids were submitting the highest bid. Bidding will Unsold Competitive Procedures received, the parcel will be declared be by sealed bid followed by an oral Unsold competitive procedures will unsold. auction to be held at 2 p.m. PST on be used after a parcel has been The BLM has determined that each of Wednesday, August 13, 2003, at the unsuccessfully offered for sale by the above described parcels have no Burns District Office, Bureau of Land competitive or modified competitive known mineral values, as defined in 43 Management, 28910 Hwy 20 West, procedures. CFR 2720.0–5(b). A successful bid on a Hines, Oregon. Unsold parcels will be offered parcel constitutes an application for To qualify for the oral auction bidders competitively on a continuous basis conveyance of these mineral interests, must submit a sealed bid meeting the until sold. Under competitive pertaining to that parcel, under the requirements as stated below. The procedures for unsold parcels the authority of section 209(b) of the highest valid sealed bid will become the person making the highest valid bid Federal Land Policy and Management starting bid for the oral auction. Bidding received during the preceding month, Act of 1976. In addition to the full in the oral auction will be in minimum and not less than the appraised market purchase price for each parcel, a increments of $100. The highest bidder value at the time, will be declared the nonrefundable fee of $50 will be from the oral auction will be declared purchaser. Sealed bids will be accepted required from the prospective purchaser the prospective purchaser. and held until the second Wednesday of in conjunction with the purchase of the If no valid bids are received, the each month at 2 p.m. PST when they mineral interests to be conveyed parcel will be declared unsold and will be opened. Bid openings will take simultaneously with the purchase and offered by unsold competitive place every month until the parcels are sale of the surface estate. procedures on a continuing basis until sold or withdrawn from sale. DATES: On or before July 7, 2003, any sold or withdrawn from sale. All sealed bids must be submitted to person may submit written comments Modified Competitive Procedures the Burns District Office, no later 2 p.m. regarding the proposed sale to the Three PST on Wednesday, August 13, 2003, at Rivers Resource Area Field Manager at Modified competitive procedures are the address described below. Comments allowed by the regulations (43 CFR the time of the bid opening and oral auction. The outside of bid envelopes or protests must reference a specific 2710.0–6(c)(3)(ii)) to provide exceptions parcel and be identified with the to competitive bidding to assure must be clearly marked with ‘‘BLM Land Sale,’’ the parcel number and the appropriate serial number. In the compatibility with existing and absence of any objections, this proposal potential land uses. bid opening date. Bids must be for not less than the appraised market value will become the determination of the Under modified competitive Department of the Interior. procedures the designated bidders (minimum bid). Separate bids must be identified in the table above will be submitted for each parcel. Each sealed ADDRESSES: Comments, bids, and given the opportunity to match or bid shall be accompanied by a certified inquiries should be submitted to the exceed the apparent high bid. check, postal money order, bank draft, Three Rivers Resource Area Field The apparent high bid will be or cashier’s check made payable to the Manager, Bureau of Land Management, established by the highest valid sealed Department of the Interior—BLM for not 28910 Hwy 20 West, Hines, Oregon bid received in an initial round of less than 20 percent of the amount bid. 97738. public bidding. If two or more valid The bid envelope must also contain a FOR FURTHER INFORMATION CONTACT: sealed bids of the same amount are statement showing the total amount bid Detailed information concerning this received for the same parcel, that and the name, mailing address, and public land sale is available on the amount shall be determined to be the phone number of the entity making the Internet at
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ACTION: Notice of filing of plats of 30 and 31, in T. 6 S., R. 27 E., Boise 3. Ratification List. surveys. Meridian, Idaho, was accepted April 3, 4. Inv. No. 731–TA–1033 2003. (Preliminary) (Hydraulic Magnetic SUMMARY: The Bureau of Land The plat representing the dependent Circuit Breakers from South Africa)— Management (BLM) has officially filed resurvey and metes-and-bounds survey briefing and vote. (The Commission is the plats of survey of the lands of a portion of lot 13, section 31, in T. currently scheduled to transmit its described below in the BLM Idaho State 2 N., R. 4 W., Boise Meridian, Idaho, determination to the Secretary of Office, Boise, Idaho, effective 9 a.m., on was accepted April 14, 2003. Commerce on May 29, 2003; the dates specified. The plat representing the dependent Commissioners’ opinions are currently FOR FURTHER INFORMATION CONTACT: resurvey of a portion of the scheduled to be transmitted to the Bureau of Land Management, 1387 subdivisional lines, and the 1879 Secretary of Commerce on or before South Vinnell Way, Boise, Idaho, meander lines of the left bank of the June 5, 2003.) 83709–1657. Snake River in section 7, and the survey 5. Outstanding action jackets: none. SUPPLEMENTARY INFORMATION: These of a fixed and limiting boundary in In accordance with Commission surveys were executed at the request of sections 7 and 18, and the survey of the policy, subject matter listed above, not the Bureau of Land Management to meet 2002 meander lines of the left bank of disposed of at the scheduled meeting, certain administrative needs of the the Snake River in sections 7 and 18, in may be carried over to the agenda of the Bureau of Land Management. The lands T. 5 N., R. 38 E., Boise Meridian, Idaho, following meeting. we surveyed are: was accepted April 17, 2003. The plat representing the dependent By order of the Commission. SUMMARY: The Bureau of Land Issued: May 20, 2003. resurvey of portions of the west Management (BLM) will file the plat of Marilyn R. Abbott, boundary and subdivisional lines, the survey of the lands described below in Secretary to the Commission. subdivision of section 30, the metes- the BLM Idaho State Office, Boise, and-bounds survey of the center line of Idaho, 30 days from the date of [FR Doc. 03–13052 Filed 5–20–03; 2:14 pm] a strip of land in section 30, and the publication in the Federal Register. BILLING CODE 7020–02–P metes-and-bounds survey of Parcels A, The plat representing the dependent C, and D in section 30, T. 3 N., R. 4 E., resurvey of portions of the 51⁄2 Standard Boise Meridian, Idaho, was accepted Parallel North, on the south boundary of DEPARTMENT OF JUSTICE November 13, 2001. Township 26 North, Range 1 East, the The plat representing the dependent subdivisional lines, the boundaries of Notice of Lodging of Consent Decree resurvey of a portion of the subdivision certain mineral and segregation surveys Under the Comprehensive of section 20, and the survey of the 2001 in sections 11, 12, and 14, the record Environmental Response, meanders of Crow Island and two meanders of the Salmon River in Compensation, and Liability Act unnamed islands in the Snake River, T. sections 2 and 11, and the subdivision 7 N., R. 5 W., Boise Meridian, Idaho, Pursuant to 28 CFR 50.7, notice is of section 11, and the further hereby given that on April 23, 2003, a was accepted December 7, 2001. subdivision of section 11, and The plat representing the entire proposed Consent Decree in United subdivision of section 2, and survey of survey record of the dependent resurvey States and State of Arizona v. Arizona a portion of the 2000 meanders of the of a portion of the 1910 meander lines Public Service Company, Civil Action Salmon River in sections 2 and 11, and of the right bank of the South Fork of Number 03–0767–PHX–PGR, was the Salmon River Scenic Easement the Payette River, and the metes-and- lodged with the United States District boundary line through the S1⁄2 of the bounds survey of lot 10, in section 20, Court for the District of Arizona. SE1⁄4 of the NW1⁄4 of section 2, T. 25 N., T. 9 N., R. 4 E., Boise Meridian, Idaho, In the civil action, the United States R. 1 E., Boise Meridian, Idaho, was was accepted June 14, 2002. and the State of Arizona alleged claims The plats constituting the entire accepted May 14, 2003. against Arizona Public Service survey record of the dependent resurvey Dated: May 16, 2003. Company (‘‘APS’’) under Section 107 of of a portion of the subdivisional lines, Duane E. Olsen, the Comprehensive Environmental the subdivision of section 26, and the Chief Cadastral Surveyor for Idaho. Response, Compensation, and Liability metes-and-bounds survey of Parcel A [FR Doc. 03–12835 Filed 5–21–03; 8:45 am] Act (‘‘CERCLA’’), 42 U.S.C. 9607, for the recovery of costs incurred in responding and two easements in section 26, in T. BILLING CODE 4310–GG–P 5 N., R. 1 E., Boise Meridian, Idaho, was to a release or threatened release of accepted February 4, 2003. hazardous substances at and from the South Indian Bend Wash Superfund The plats representing the dependent INTERNATIONAL TRADE Site in Tempe, Arizona (the ‘‘Site’’). The resurvey of a portion of the Idaho- COMMISSION Washington State Boundary, a portion proposed Consent Decree requires APS of the subdivisional lines, and the [USITC SE–03–013] to pay the United States $2,320,000 and subdivision of section 24, in T. 46 N., to pay the Arizona Department of R. 6 W., Boise Meridian, Idaho, were Sunshine Act Meeting Environmental Quality (‘‘ADEQ’’) accepted April 1, 2003. $400,000. AGENCY HOLDING THE MEETING: The plat constituting the entire survey The Department of Justice will receive International Trade Commission. record of the dependent resurvey of a for a period of thirty (30) days from the portion of the south and west TIME AND DATE: May 29, 2003 at 11 a.m. date of this publication comments boundaries and a portion of the PLACE: Room 101, 500 E Street SW., relating to the Consent Decree. subdivisional lines, designed to restore Washington, DC 20436, Telephone: Comments should be addressed to the the corners in their true original (202) 205–2000. Assistant Attorney General, locations according to the best available STATUS: Open to the public. Environment and Natural Resources evidence, and a metes-and-bounds MATTERS TO BE CONSIDERED: Division, P.O. Box 7611, U.S. survey of a portion of the Craters of the 1. Agenda for future meetings: none. Department of Justice, Washington, DC Moon National Monument in sections 2. Minutes. 20044–7611, and should refer to United
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States and State of Arizona v. Arizona States in responding to releases of DEPARTMENT OF JUSTICE Public Service Company, DOJ Ref. # 90– hazardous substances at the Site 11–2–413/3. pursuant to Section 107(a)(1) of Notice of Lodging of the ‘‘VEPCO’’ The Consent Decree may be examined CERCLA. The Consent Decree requires Proposed Consent Decree Under the at the Office of the United States Tecumseh to implement the remedial Clean Air Act Attorney, Two Renaissance Square, 40 action for the Upper River portion of the N. Central, Suite 1200, Phoenix, Arizona Notice is hereby given that on April Site selected by the U.S. Environmental 21, 2003, a proposed Consent Decree and at U.S. EPA Region 9, 75 Hawthorne Protection Agency in a Record of Street, San Francisco, CA 94105. During (‘‘proposed Decree’’) in United States v. Decision dated May 12, 2000, and to the public comment period, the Consent Virginia Electric and Power Co. reimburse the United States at least Decree may also be examined on the (‘‘VEPCO’’), Civil Action No. 03–517–A, following Department of Justice Web $2,100,000.00 for response costs was lodged with the United States site: http://www.usdoj.gov/enrd/ incurred in connection with the Site. District Court for the Eastern District of open.html. A copy of the Consent The Department of Justice will Virginia. Decree may also be obtained by mail receive, for a period of thirty (30) days In this civil enforcement action under from the Consent Decree Library, P.O. from the date of this publication, the federal Clean Air Act (‘‘Act’’), the United States alleges that VEPCO—an Box 7611, U.S. Department of Justice, comments relating to the proposed electric utility—failed to comply with Washington, DC 20044–7611, or by consent decree. Comments should be certain requirements of the Act intended faxing or e-mailing a request to Tonia addressed to the Assistant Attorney Fleetwood, [email protected], to prevent deterioration of air quality. General, Environment and Natural The complaint alleges that for some of Fax No. (202) 514–0097, phone Resources Division, U.S. Department of confirmation number (202) 514–1547. In the units at two of its coal-fired, energy Justice, P.O. Box 7611, Washington, DC generation stations—Mount Storm requesting a copy from the Consent 20044–7611, and should refer to United Decree Library, please enclose a check (located in northeastern West Virginia) States v. Tecumseh Products Company, in the amount of $8.00 (25 cents per and Chesterfield (located in Chesterfield DOJ Ref. #90–11–2–06440. Commenters page reproduction cost) payable to the County, Virginia)—VEPCO failed to seek U.S. Treasury. may request an opportunity for a public permits prior to making major meeting in the affected area, in modifications to units at those stations Ellen M. Mahan, accordance with Section 7003 of RCRA, and also failed to install appropriate Assistant Chief, Environmental Enforcement 42 U.S.C. § 6973(d). pollution control devices to reduce Section, Environment and Natural Resources The proposed consent decree may be emissions of air pollutants from units at Division. those stations. The complaint seeks both [FR Doc. 03–12788 Filed 5–21–03; 8:45 am] examined at the office of the United States Attorney, 517 E. Wisconsin injunctive relief and civil penalty. BILLING CODE 4410–15–M The proposed Decree lodged with the Avenue, Suite 530, Milwaukee, Court addresses units at the Mount Wisconsin 53202, and the Region 5 Storm and Chesterfield Stations as well Office of the Environmental Protection DEPARTMENT OF JUSTICE as units at these other energy generation Agency, 77 West Jackson Boulevard, stations owned or operated by VEPCO: Notice of Lodging of Consent Decree Chicago, IL 60604. During the public Pursuant to the Comprehensive Bremo Power Station (in Fluvanna comment period, the proposed consent County, Virginia), Chesapeake Energy Environmental Response, decree may also be examined on the Compensation and Liability Act Center (near Chesapeake, Virginia), following Department of Justice Web Clover Power Station (in Halifax Under Section 122(d)(2) of CERCLA, site, http://www.usdoj.gov/enrd/ County, Virginia), North Branch Power 42 U.S.C. 9622(d)(2) and 28 CFR 50.7, open.html. A copy of the proposed Station (in northeastern West Virginia), notice is hereby given that on May 7, consent decree may also be obtained by Possum Point Power Station (about 25 2003, a proposed consent decree in mail from the Consent Decree Library, miles south of Washington, D.C.), and United States v. Tecumseh Products P.O. Box 7611, U.S. Department of Yorktown Power Station (in Yorktown, Company, Civil Action No. 03–C–0401, Justice, Washington, DC 20044–7611 or Virginia). was lodged with the United States by faxing or e-mailing a request to Tonia The proposed Decree requires District Court for the Eastern District of Fleetwood ([email protected]), installation, upgrading, and operation of Wisconsin. fax no. (202) 514–0097, phone pollution control devices on a number In this action, the United States confirmation number (202) 514–1547. In of the units at these various VEPCO sought the implementation of response requesting a copy from the Consent generation stations on a schedule action and reimbursement of response Decree Library, please enclose a check running through 2012. Some of the costs pursuant to the Comprehensive in the amount of $51.00 (25 cents per control and emission requirements and Environmental Response, Compensation page reproduction cost) payable to the conditions specified by the proposed and Liability Act, 42 U.S.C. 9601, et U.S. Treasury. Decree cover particular units while seq., (‘‘CERCLA’’), for costs incurred by others address the aggregate the United States in responding to a William D. Brighton, performance of the units subject to the release or threat of release of hazardous Assistant Chief, Environmental Enforcement proposed Decree. substances in the Upper River section of Section, Environment and Natural Resources VEPCO also will carry out under the the Sheboygan River and Harbor Division. Decree a series of environmental Superfund Site in Sheboygan County, [FR Doc. 03–12787 Filed 5–21–03; 8:45 am] mitigation projects. They are described Wisconsin (the ‘‘Site’’). The United BILLING CODE 4410–15–M in the proposed Decree and are valued States alleges that Tecumseh Products at about $13.9 million. VEPCO also will Company (‘‘Tecumseh’’) arranged for pay the United States a civil penalty of disposal of hazardous substances in the $5.3 million. Upper River portion of the Site and is Joining in the proposed Decree as co- liable for costs incurred by the United plaintiffs are the States of New York,
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New Jersey, Connecticut, and West information collection is published to Health Security and Bioterrorism Virginia, as well as the Commonwealth obtain comments from the public and Preparedness and Response Act of 2002 of Virginia. affected agencies. This proposed is designed to prevent bioterrorism and The Department of Justice will receive information collection was previously other public health emergencies. The for a period of thirty (30) days from the published in the Federal Register law requires entities and persons date of this publication comments Volume 68, Number 42, page 10268 on possessing agents or toxins deemed to relating to the proposed Decree. March 4, 2003, allowing for a 60-day be a severe threat to human, animal or Comments should be addressed to the comment period. plant health, or to animal or plant Assistant Attorney General, The purpose of this notice is to allow products, to be registered with the Environment and Natural Resources for an additional 30 days for public Secretary of Agriculture or Secretary of Division, P.O. Box 7611, U.S. comment until June 23, 2003. This Health and Human Resources. Under Department of Justice, Washington, DC process is conducted in accordance with the act the Attorney General has the 20044–7611, and should refer to, United 5 CFR 1320.10. States v. Virginia Electric and Power Written comments and/or suggestions responsibility to determine whether any Co., D.J. Ref. 90–5–2–1–07122. regarding the items contained in this individual is a restricted person, as that The proposed Decree may be notice, especially the estimated public term is defined in 18 U.S.C. 175b(d) or examined at the offices of the United burden and associated response time, is reasonably suspected by any Federal States Attorney, Eastern Division of should be directed to the Office of law enforcement or intelligence agency Virginia, 2100 Jamieson Avenue, Management and Budget, Office of of committing a Federal crime of Alexandria, Virginia, and at the offices Information and Regulation Affairs, terrorism, or having knowing of U.S. EPA, Region 3, 1650 Arch Street, Attention: Department of Justice Desk involvement with an organization that Philadelphia, PA 19103–2029. Officer, Washington, DC 20503. engages in domestic or international During the public comment period, Request written comments and terrorism, or with any other the proposed Decree may also be suggestions from the public and affected organization that engages in intentional examined on the following Department agencies concerning the proposed crimes of violence; or an agent of a of Justice Web site, http:// collection of information. your foreign power. The Attorney General www.usdoj.gov/enrd/open.html. A copy comments should address one or more delegated this responsibility to the of the proposed Decree may also be of the following four points: Federal Bureau of Investigation (FBI). obtained by mail from the consent (1) Evaluate whether the proposed The collection of this information is Decree Library, P.O. Box 7611, U.S. collection of information is necessary necessary for the FBI to make the Department of Justice, Washington, DC for the proper performance of the required determination. 20044–7611 or by faxing or e-mailing a functions of the agency, including request to Tonia Fleetwood whether the information will have (5) An estimate of the total number of ([email protected]), fax no. practical utility; respondents and the amount of time (202) 514–0097, phone confirmation (2) Evaluate the accuracy of the estimated for an average respondent to number (202) 514–1547. In requesting a agencies estimate of the burden of the respond/reply. It is estimated 20,000 copy from the Consent Decree Library, proposed collection of information, entities/individuals will complete the please enclose a check in the amount of including the validity of the information in approximately 30 $29.25 (25 cents per page reproduction methodology and assumptions used; minutes. (3) Enhance the quality, utility, and cost) payable to the U.S. Treasury. (6) An estimate of the total public clarity of the information to be burden (in hours) associated with the Thomas A. Mariani, Jr., collected; and Assistant Chief, Environmental Enforcement (4) Minimize the burden of the collection: The estimated public burden Section, Environment and Natural Resources collection of information on those who associated with this application is Division. are to respond including through the 10,000 hours. [FR Doc. 03–12789 Filed 5–21–03; 8:45 am] use of appropriate automated, If additional information is required BILLING CODE 4410–15–M electronic, mechanical, or other contact: Robert B. Briggs, Department technological collection techniques or Clearance Officer, Information other forms of information technology, Management and Security Staff, Justice DEPARTMENT OF JUSTICE e.g., permitting electronic submission of Management Division, United States responses. Federal Bureau of Investigation Department of Justice, 601 D Street NW., Overview of this information: Patrick Henry Building, Suite 1600, Agency Information Collection (1) Type of information collection: NW., Washington, DC 20530. Extension of a currently approved Activities: Proposed Collection; Dated: May 14, 2003. Comments Requested collection. (2) The title of the form/collection: Robert B. Briggs, ACTION: 30-day Notice of Information Bioterrorism Preparedness Act: Entity/ Department Clearance Officer, Department of Collection Under Review: Extension of Individual Information. Justice. a currently approved collection, (3) The agency form number, if any, [FR Doc. 03–12782 Filed 5–21–03; 8:45 am] and the applicable component of the Bioterrorism Preparedness Act: Entity/ BILLING CODE 4410–02–M Individual Information. department sponsoring the collection: FD–961 (2–24–03), Federal Bureau of The Department of Justice, Federal Investigation, Department of Justice. Bureau of Investigation has submitted (4) Affected public who will be asked the following information collection or required to respond, as well as brief request to the Office of Management and abstract: Primary: Individuals or Budget (OMB) for review and approval households. Other. Business or other for in accordance with the Paperwork profit; Not-for-profit institutions; State, Reduction Act of 1995. The proposed Local or Tribal Government. The Public
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DEPARTMENT OF LABOR Notice to Interested Persons Authorization Number (FAN) 2001–19E, Notice of the proposed exemptions issued to DB and its Affiliates (June 23, Employee Benefits Security 1 will be provided to all interested 2001). Administration persons in the manner agreed upon by Section I—Transactions the applicant and the Department [Application No. D–11004, et al.] If the proposed exemption is granted, within 15 days of the date of publication the restrictions of section 406 of the Act in the Federal Register. Such notice Proposed Exemptions; Deutsche Bank and the sanctions resulting from the shall include a copy of the notice of AG (DB) application of section 4975 of the Code, proposed exemption as published in the by reason of section 4975(c)(1) of the AGENCY: Employee Benefits Security Federal Register and shall inform Code, shall not apply to the purchase of Administration, Labor. interested persons of their right to any securities by the Asset Manager on ACTION: Notice of proposed exemptions. comment and to request a hearing behalf of employee benefit plans (Client (where appropriate). SUMMARY: Plans), including Client Plans investing This document contains SUPPLEMENTARY INFORMATION: The notices of pendency before the in a pooled fund (Pooled Fund), for proposed exemptions were requested in which the Asset Manager acts as a Department of Labor (the Department) of applications filed pursuant to section proposed exemptions from certain of the fiduciary, from any person other than 408(a) of the Act and/or section the Asset Manager or an affiliate thereof, prohibited transaction restrictions of the 4975(c)(2) of the Code, and in Employee Retirement Income Security during the existence of an underwriting accordance with procedures set forth in or selling syndicate with respect to such Act of 1974 (the Act) and/or the Internal 29 CFR part 2570, subpart B (55 FR Revenue Code of 1986 (the Code). securities, where the Affiliated Broker- 32836, 32847, August 10, 1990). Dealer is a manager or member of such Written Comments and Hearing Effective December 31, 1978, section syndicate (an ‘‘affiliated underwriter Requests 102 of Reorganization Plan No. 4 of transaction’’ (AUT)), and/or where an 1978, 5 U.S.C. App. 1 (1996), transferred All interested persons are invited to Affiliated Trustee serves as trustee of a the authority of the Secretary of the submit written comments or requests for trust that issued the securities (whether Treasury to issue exemptions of the type a hearing on the pending exemptions, or not debt securities) or serves as requested to the Secretary of Labor. unless otherwise stated in the notice of indenture trustee of securities that are Therefore, these notices of proposed proposed exemption, within 45 days debt securities (an ‘‘affiliated trustee exemption are issued solely by the from the date of publication of this transaction’’ (ATT)), provided that the Department. following conditions are satisfied: Federal Register notice. Comments and The applications contain requests for a hearing should state: (1) (a) The securities to be purchased representations with regard to the are— the name, address, and telephone proposed exemptions which are number of the person making the (1) Either: summarized below. Interested persons (i) Part of an issue registered under comment or request, and (2) the nature are referred to the applications on file of the person’s interest in the exemption the Securities Act of 1933 (the 1933 Act) with the Department for a complete (15 U.S.C. 77a et. seq.) or, if exempt and the manner in which the person statement of the facts and would be adversely affected by the from such registration requirement, are representations. (A) issued or guaranteed by the United exemption. A request for a hearing must Deutsche Bank AG (DB), located in also state the issues to be addressed and States or by any person controlled or Germany, with affiliates in New York, supervised by and acting as an include a general description of the New York and other locations; and evidence to be presented at the hearing. instrumentality of the United States JPMorgan Chase Bank, located in New pursuant to authority granted by the ADDRESSES: All written comments and York, New York; (collectively, with Congress of the United States, (B) issued requests for a hearing (at least three their Affiliates, the Applicants). by a bank, (C) exempt from such copies) should be sent to the Employee (Application Nos. D–11004 and D– registration requirement pursuant to a Benefits Security Administration 11106). Federal statute other than the 1933 Act, (EBSA), Office of Exemption Proposed Exemption or (D) are the subject of a distribution Determinations, Room N–5649, U.S. and are of a class which is required to Department of Labor, 200 Constitution Under the authority of section 408(a) be registered under section 12 of the Avenue, NW., Washington, DC 20210. of the Employee Retirement Income Securities Exchange Act of 1934 (the lll Attention: Application No. , Security Act of 1974 (the Act) and 1934 Act) (15 U.S.C. 781), and the issuer stated in each notice of proposed section 4975(c)(2) of the Internal of which has been subject to the exemption. Interested persons are also Revenue Code of 1986 (the Code) and in reporting requirements of section 13 of invited to submit comments and/or accordance with the procedures set that Act (15 U.S.C. 78m) for a period of hearing requests to EBSA via e-mail or forth in 29 CFR part 2570, subpart B (55 at least 90 days immediately preceding FAX. Any such comments or requests FR 32836, 32847, August 10, 1990), the the sale of securities and has filed all should be sent either by e-mail to: Department is considering amending the ‘‘[email protected]’’, or by FAX to following individual prohibited 1 See also PTE 2000–26 (65 FR 35129, June 1, (202) 219–0204 by the end of the transaction exemptions (PTEs) and 2000), issued to Goldman, Sachs & Co., and its scheduled comment period. The authorization made pursuant to PTE 96– Affiliates; PTE 2000–29 (65 FR 35129, June 1, 2000), applications for exemption and the 62 (61 FR 39988, July 31, 1996—referred issued to Morgan Stanley Dean Witter & Co. and its Affiliates; FAN 2001–24E (October 6, 2001), issued comments received will be available for to herein as ‘‘EXPRO’’): PTE 2000–25 to Barclays Global Investors N.A., Barclays Capital, public inspection in the Public (65 FR 35129, June 1, 2000), issued to Inc. and their Affiliates; and FAN 2002–09E Documents Room of the Employee Morgan Guaranty Trust Company of (September 14, 2002), issued to The TCW Group, Benefits Security Administration, U.S. New York and J.P. Morgan Investment Inc., and its Affiliates. The Department will separately consider similar amendments to those Department of Labor, Room N–1513, Management, Inc., and PTE 2000–27, exemptions and authorizations upon the receipt of 200 Constitution Avenue, NW., issued to the Chase Manhattan Bank (65 applications or submissions relating thereto from Washington, DC 20210. FR 35129, June 1, 2000), and Final such entities.
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reports required to be filed thereunder or (D), and who has been in continuous (g) If the transaction is an AUT, with the Securities and Exchange operation for not less than three years, (1) The amount the Affiliated Broker- Commission (SEC) during the preceding including the operation of any Dealer receives in management, 12 months; or predecessors. underwriting or other compensation is (ii) Part of an issue that is an ‘‘Eligible (c) The amount of such securities to not increased through an agreement, Rule 144A Offering,’’ as defined in SEC be purchased by the Asset Manager on arrangement, or understanding for the rule 10f–3 (17 CFR 270.10f–3(a)(4)). behalf of a Client Plan does not exceed purpose of compensating the Affiliated Where the Eligible Rule 144A Offering three percent of the total amount of the Broker-Dealer for foregoing any selling is of equity securities, the offering securities being offered. concessions for those securities sold syndicate shall obtain a legal opinion Notwithstanding the foregoing, the pursuant to this exemption. Except as regarding the adequacy of the disclosure aggregate amount of any securities described above, nothing in this in the offering memorandum; purchased with assets of all Client Plans paragraph shall be construed as (2) Purchased prior to the end of the (including Pooled Funds) managed by precluding the Affiliated Broker-Dealer first day on which any sales are made, the Asset Manager (or with respect to from receiving management fees for at a price that is not more than the price which the Asset Manager renders serving as manager of the underwriting paid by each other purchaser of investment advice within the meaning or selling syndicate, underwriting fees securities in that offering or in any of 29 CFR 2510.3–21(c)) does not for assuming the responsibilities of an concurrent offering of the securities, exceed: underwriter in the underwriting or except that — (1) 10 percent of the total amount of selling syndicate, or other consideration (i) If such securities are offered for any equity securities being offered; that is not based upon the amount of subscription upon exercise of rights, (2) 35 percent of the total amount of securities purchased by the Asset they may be purchased on or before the any debt securities being offered that are Manager on behalf of Client Plans fourth day preceding the day on which rated in one of the four highest rating pursuant to this exemption; and the rights offering terminates; or categories by at least one of the Rating (2) The Affiliated Broker-Dealer shall (ii) If such securities are debt Organizations; or provide to the Asset Manager a written securities, they may be purchased at a (3) 25 percent of the total amount of certification, signed by an officer of the price that is not more than the price any debt securities being offered that are Affiliated Broker-Dealer, stating the paid by each other purchaser of rated in the fifth or sixth highest rating amount that the Affiliated Broker-Dealer securities in that offering or in any categories by at least one of the Rating received in compensation during the concurrent offering of the securities and Organizations; and past quarter, in connection with any may be purchased on a day subsequent (4) If purchased in an Eligible Rule offerings covered by this exemption, to the end of the first day on which any 144A Offering, the total amount of the was not adjusted in a manner sales are made, provided that the securities being offered for purposes of inconsistent with section I, paragraphs interest rates on comparable debt determining the percentages for (1)-(3) (e), (f), or (g), of this exemption. securities offered to the public above is the total of: (h) In the case of a single Client Plan, subsequent to the first day and prior to (i) The principal amount of the the covered transaction is performed the purchase are less than the interest offering of such class sold by under a written authorization executed rate of the debt securities being underwriters or members of the selling in advance by an independent fiduciary purchased; and syndicate to ‘‘qualified institutional (Independent Fiduciary) of the Client (3) Offered pursuant to an buyers’’ (QIBs), as defined in SEC rule Plan. underwriting or selling agreement under 144A (17 CFR 230.144A(a)(1)); plus (i) Prior to the execution of the which the members of the syndicate are (ii) The principal amount of the written authorization described in committed to purchase all of the offering of such class in any concurrent paragraph (h) above, the following securities being offered, except if— public offering. information and materials (which may (i) Such securities are purchased by (d) The consideration to be paid by be provided electronically) must be others pursuant to a rights offering; or the Client Plan in purchasing such provided by the Asset Manager to the (ii) Such securities are offered securities does not exceed three percent Independent Fiduciary of each single pursuant to an over-allotment option. of the fair market value of the total net Client Plan: (b) The issuer of such securities has assets of the Client Plan, as of the last (1) A copy of the notice of proposed been in continuous operation for not day of the most recent fiscal quarter of exemption and of the final exemption, less than three years, including the the Client Plan prior to such transaction. if granted, as published in the Federal operation of any predecessors, unless — (e) The transaction is not part of an Register; and (1) Such securities are non- agreement, arrangement, or (2) Any other reasonably available convertible debt securities rated in one understanding designed to benefit the information regarding the covered of the four highest rating categories by Asset Manager or an affiliate. transactions that the Independent at least one nationally recognized (f) If the transaction is an AUT, the Fiduciary requests. statistical rating organization, i.e., Affiliated Broker-Dealer does not (j) Subsequent to an Independent Standard & Poor’s Rating Services, receive, either directly, indirectly, or Fiduciary’s initial authorization Moody’s Investors Service, Inc., Duff & through designation, any selling permitting the Asset Manager to engage Phelps Credit Rating Co., or Fitch IBCA, concession or other consideration that is in the covered transactions on behalf of Inc., or their successors (collectively, based upon the amount of securities a single Client Plan, the Asset Manager the Rating Organizations); or purchased by Client Plans pursuant to will continue to be subject to the (2) Such securities are issued or fully this exemption. In this regard, the requirement to provide any reasonably guaranteed by a person described in Affiliated Broker-Dealer may not available information regarding the paragraph (a)(1)(i)(A) of this exemption; receive, either directly or indirectly, any covered transactions that the or compensation that is attributable to the Independent Fiduciary requests. (3) Such securities are fully fixed designations generated by (k) In the case of existing plan guaranteed by a person who has issued purchases of securities by the Asset investors in a Pooled Fund, such Pooled securities described in (a)(1)(i)(B), (C), Manager on behalf of its Client Plans. Fund may not engage in any covered
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transactions pursuant to this exemption, of paragraph (k). For purposes of this Manager affirming that, as to each ATT, unless the Asset Manager has provided paragraph, the requirement that the the transaction was not part of an the written information described below authorizing fiduciary be independent of agreement, arrangement or to the Independent Fiduciary of each the Asset Manager shall not apply in the understanding designed to benefit the plan participating in the Pooled Fund. case of an in-house plan sponsored by Affiliated Trustee; The following information and materials the Applicants or an affiliate thereof. (3) Disclose to the Independent (which may be provided electronically) (m) Subsequent to an Independent Fiduciary that, upon request, any other shall be provided not less than 45 days Fiduciary’s initial authorization of a reasonably available information prior to the Asset Manager’s engaging in plan’s investment in a Pooled Fund that regarding the covered transactions that the covered transactions on behalf of the engages in the covered transactions, the the Independent Fiduciary requests will Pooled Fund pursuant to the exemption: Asset Manager will continue to be be provided, including, but not limited (1) A notice of the Pooled Fund’s subject to the requirement to provide to: intent to purchase securities pursuant to any reasonably available information (i) The date on which the securities this exemption and a copy of the notice regarding the covered transactions that were purchased on behalf of the plan; of proposed exemption and of the final the Independent Fiduciary requests. (ii) The percentage of the offering exemption, if granted, as published in (n) At least once every three months, purchased on behalf of all Client Plans the Federal Register; and not later than 45 days following the and Pooled Funds; and (2) Any other reasonably available period to which such information (iii) The identity of all members of the information regarding the covered relates, the Asset Manager shall: underwriting syndicate; transactions that the Independent (1) Furnish the Independent Fiduciary (4) Disclose to the Independent Fiduciary requests; and of each single Client Plan, and of each Fiduciary in the quarterly report, any (3) A termination form expressly plan investing in a Pooled Fund, with instance during the past quarter where providing an election for the a report (which may be provided the Asset Manager was precluded for Independent Fiduciary to terminate the electronically) disclosing all securities any period of time from selling a plan’s investment in the Pooled Fund purchased on behalf of that Client Plan security purchased under this without penalty to the plan. Such form or Pooled Fund pursuant to the exemption in that quarter because of its shall include instructions specifying exemption during the period to which status as an affiliate of the Affiliated how to use the form. Specifically, the such report relates, and the terms of the Broker-Dealer or of an Affiliated Trustee instructions will explain that the plan transactions, including: and the reason for this restriction; has an opportunity to withdraw its (i) The type of security (including the (5) Provide explicit notification, assets from the Pooled Fund for a period rating of any debt security); prominently displayed in each quarterly at least 30 days after the plan’s receipt (ii) The price at which the securities report, to the Independent Fiduciary of of the initial notice described in were purchased; a single Client Plan, that the subparagraph (1) above and that the (iii) The first day on which any sale authorization to engage in the covered failure of the Independent Fiduciary to was made during this offering; transactions may be terminated, without return the termination form by the (iv) The size of the issue; penalty, by the Independent Fiduciary specified date shall be deemed to be an (v) The number of securities on no more than five days’ notice by approval by the plan of its participation purchased by the Asset Manager for the contacting an identified person; and in covered transactions as a Pooled specific Client Plan or Pooled Fund; (6) Provide explicit notification, Fund investor. Further, the instructions (vi) The identity of the underwriter prominently displayed in each quarterly will identify the Asset Manager and its from whom the securities were report, to the Independent Fiduciary of Affiliated Broker-Dealer and/or purchased; a Client Plan investing in a Pooled Affiliated Trustee and state that this (vii) In the case of an AUT, the spread Fund, that the Independent Fiduciary exemption may be unavailable unless on the underwriting; may terminate investment in the Pooled the Independent Fiduciary is, in fact, (viii) In the case of an ATT, the basis Fund, without penalty, by contacting an independent of those persons. Such upon which the Affiliated Trustee is identified person. fiduciary must advise the Asset compensated; (o) Each single Client Plan shall have Manager, in writing, if it is not an (ix) The price at which any such total net assets with a value of at least ‘‘independent Fiduciary,’’ as that term is securities purchased during the period $50 million. In addition, in the case of defined in section II(g) of this were sold; and a transaction involving an Eligible Rule exemption. (x) The market value at the end of For purposes of this paragraph, the such period of each security purchased 144A Offering on behalf of a single requirement that the authorizing during the period and not sold; Client Plan, each such Client Plan shall fiduciary be independent of the Asset (2) Provide to the Independent have at least $100 million in securities, Manager shall not apply in the case of Fiduciary in the quarterly report (i) in as determined pursuant to SEC rule 2 an in-house plan sponsored by the the case of AUTs, a representation that 144A (17 CFR 230.144A). In the case of Applicants or an affiliate thereof. the Asset Manager has received a 2 SEC rule 10f-3(a)(4), 17 CFR 270.10f-3(a)(4), However, in-house plans must notify written certification signed by an officer states that the term ‘‘Eligible Rule 144A Offering’’ the Asset Manager, as provided above. of the Affiliated Broker-Dealer, as means an offering of securities that meets the (l) In the case of a plan whose assets described in paragraph (g)(2), affirming following conditions: are proposed to be invested in a Pooled that, as to each AUT covered by this (i) The securities are offered or sold in Fund subsequent to implementation of exemption during the past quarter, the transactions exempt from registration under section 4(2) of the Securities Act of 1933 (15 U.S.C. 77d(d)), the procedures to engage in the covered Affiliated Broker-Dealer acted in rule 144A thereunder (§ 230.144A of this chapter), transactions, the plan’s investment in compliance with section I, paragraphs or rules 501–508 thereunder (§§ 230.501–230–508 the Pooled Fund is subject to the prior (e), (f), and (g) of this exemption, and of this chapter); written authorization of an Independent that copies of such certifications will be (ii) The securities are sold to persons that the seller and any person acting on behalf of the seller Fiduciary, following the receipt by the provided to the Independent Fiduciary reasonably believe to include qualified institutional Independent Fiduciary of the materials upon request, and (ii) in the case of buyers, as defined in § 230.144A(a)(1) of this described in subparagraphs (1) and (2) ATTs, a representation of the Asset chapter; and
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a Pooled Fund, the $50 million applicable, shall be subject to a civil Applicants (as ‘‘affiliate’’ is defined in requirement will be met if 50 percent or penalty under section 502(i) of the Act paragraph (c)) that meets the more of the units of beneficial interest or the taxes imposed by section 4975(a) requirements of this proposed in such Pooled Fund are held by plans and (b) of the Code, if such records are exemption. having total net assets with a value of not maintained, or not available for (b) The term ‘‘Affiliated Broker- at least $50 million. For purchases examination, as required by paragraph Dealer’’ means any broker-dealer involving an Eligible Rule 144A (s); and affiliate of the Applicants (as ‘‘affiliate’’ Offering on behalf of a Pooled Fund, the (2) This record-keeping condition is defined in paragraph (c)) that meets $100 million requirement will be met if shall not be deemed to have been the requirements of this exemption. 50 percent or more of the units of violated if, due to circumstances beyond Such Affiliated Broker-Dealer may beneficial interest in such Pooled Fund the control of the Asset Manager or the participate in an underwriting or selling are held by plans having at least $100 Affiliated Broker-Dealer, or Affiliated syndicate as a manager or member. The million in assets and the Pooled Fund Trustee, as applicable, such records are term ‘‘manager’’ means any member of itself qualifies as a QIB, as determined lost or destroyed prior to the end of the an underwriting or selling syndicate pursuant to SEC rule 144A (17 CFR six-year period. who, either alone or together with other 230.144A(a)(F)). (s)(1) Except as provided in members of the syndicate, is authorized For purposes of the net asset tests subparagraph (2) of this paragraph (s) to act on behalf of the members of the described above, where a group of and notwithstanding any provisions of syndicate in connection with the sale Client Plans is maintained by a single subsections (a)(2) and (b) of section 504 and distribution of the securities being employer or controlled group of of the Act, the records referred to in offered, or who receives compensation employers, as defined in section paragraph (r) are unconditionally from the members of the syndicate for 407(d)(7) of the Act, the $50 million net available at their customary location for its services as a manager of the asset requirement or the $100 million examination during normal business syndicate. net asset requirement may be met by hours by— (c) The term ‘‘affiliate’’ of a person aggregating the assets of such Client (i) Any duly authorized employee or includes: Plans, if the assets are pooled for representative of the Department, the (1) Any person directly or indirectly investment purposes in a single master Internal Revenue Service, or the SEC; or through one or more intermediaries, trust. (ii) Any fiduciary of a Client Plan, or controlling, controlled by, or under (p) The Asset Manager qualifies as a any duly authorized employee or common control with such person; ‘‘qualified professional asset manager’’ representative of such fiduciary; or (2) Any officer, director, partner, (QPAM), as that term is defined under (iii) Any employer of participants and employee, or relative (as defined in part V(a) of Prohibited Transaction beneficiaries and any employee section 3(15) of the Act) of such person; Exemption 84–14 (49 FR 9494, 9506, organization whose members are and March 13, 1984) and, in addition, has, covered by a Client Plan, or any (3) Any corporation or partnership of as of the last day of its most recent fiscal authorized employee or representative which such person is an officer, year, total client assets under its of these entities; or director, partner, or employee. (d) The term ‘‘control’’ means the management and control in excess of $5 (iv) Any participant or beneficiary of power to exercise a controlling billion and shareholders’ or partners’ a Client Plan, or duly authorized influence over the management or equity in excess of $1 million. employee or representative of such policies of a person other than an (q) No more than 20 percent of the participant or beneficiary; individual. assets of a Pooled Fund, at the time of (2) None of the persons described in paragraphs (s)(1)(ii)—(iv) shall be (e) The term ‘‘Client Plan’’ means an a covered transaction, are comprised of employee benefit plan that is subject to assets of employee benefit plans authorized to examine trade secrets of the Asset Manager or the Affiliated the fiduciary responsibility provisions maintained by the Asset Manager, the of the Act and whose assets are under Affiliated Broker-Dealer, the Affiliated Broker-Dealer, or the Affiliated Trustee or commercial or financial information the management of the Asset Manager, Trustee or an affiliate thereof for their including a plan investing in a Pooled own employees, for which the Asset which is privileged or confidential; and (3) Should the Asset Manager or the Fund (as ‘‘Pooled Fund’’ is defined in Manager, the Affiliated Broker-Dealer, Affiliated Broker-Dealer or the Affiliated paragraph (f) below). or an affiliate exercises investment Trustee refuse to disclose information (f) The term ‘‘Pooled Fund’’ means a discretion. common or collective trust fund or (r) The Asset Manager, and the on the basis that such information is exempt from disclosure pursuant to pooled investment fund maintained by Affiliated Broker-Dealer, as applicable, the Asset Manager. maintain, or cause to be maintained, for paragraph (s)(2) above, the Asset Manager shall, by the close of the (g)(1) The term ‘‘Independent a period of six years from the date of Fiduciary’’ means a fiduciary of a Client any covered transaction such records as thirtieth (30th) day following the request, provide a written notice Plan who is unrelated to, and are necessary to enable the persons independent of, the Asset Manager, the described in paragraph (s) of this advising that person of the reasons for the refusal and that the Department may Affiliated Broker-Dealer and the proposed exemption to determine Affiliated Trustee. For purposes of this whether the conditions of this request such information. (t) An indenture trustee whose exemption, a Client Plan fiduciary will exemption have been met, except that— affiliate has, within the prior 12 months, be deemed to be unrelated to, and (1) No party in interest with respect underwritten any securities for an independent of, the Asset Manager, the to a Client Plan, other than the Asset obligor of the indenture securities will Affiliated Broker-Dealer and the Manager and the Affiliated Broker- resign as indenture trustee if a default Affiliated Trustee if such fiduciary Dealer or Affiliated Trustee, as occurs upon the indenture securities. represents that neither such fiduciary, nor any individual responsible for the (iii) The seller and any person acting on behalf Section II—Definitions of the seller reasonably believe that the securities decision to authorize or terminate are eligible for resale to other qualified institutional (a) The term ‘‘Asset Manager’’ means authorization for transactions described buyers pursuant to § 230.144A of this chapter. any asset management affiliate of the in section I, is an officer, director, or
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highly compensated employee (within Rating Organization will be treated as issuing trust, as described herein. If the meaning of section 4975(e)(2)(H) of debt securities. adopted, this proposed amendment the Code) of the Asset Manager, the (i) The term ‘‘Eligible Rule 144A would affect the participants and Affiliated Broker-Dealer or the Affiliated Offering’’ shall have the same meaning beneficiaries of the plans involved in Trustee and represents that such as defined in SEC rule 10f–3(a)(4) (17 such transactions and the fiduciaries fiduciary shall advise the Asset Manager CFR 270.10f–3(a)(4)) under the 1940 with respect to such plans. if those facts change. Act. Summary of Facts and Representations (2) Notwithstanding anything to the (j) The term ‘‘qualified institutional contrary in this section II(g), a fiduciary buyer’’ or ‘‘QIB’’ shall have the same The facts and representations is not independent if: meaning as defined in SEC rule 144A contained in the applications are (i) Such fiduciary directly or (17 CFR 230.144A(a)(1)) under the 1933 summarized below. Interested persons indirectly controls, is controlled by, or Act. are referred to the applications on file is under common control with the Asset (k) The term ‘‘Rating Organizations’’ with the Department (see D–11004 and Manager, the Affiliated Broker-Dealer or means Standard & Poor’s Rating D–11106) for the complete the Affiliated Trustee; Services, Moody’s Investors Service, representations of the Applicants. Inc., Duff & Phelps Credit Rating Co., or (ii) Such fiduciary directly or 1. DB is a German banking Fitch IBCA, Inc., or their successors. indirectly receives any compensation or corporation and a leading commercial (l) The term ‘‘Affiliated Trustee’’ bank, with total assets of 928,994 other consideration from the Asset means the Applicants and any bank or million euros and shareholders equity of Manager, the Affiliated Broker-Dealer or trust company affiliate of the Applicants 43,683 million euros, as of 2001. DB and the Affiliated Trustee for his or her own (as ‘‘affiliate’’ is defined in paragraph its Affiliates (including the New York personal account in connection with (c)(1)) that serves as trustee of a trust any transaction described in this that issues securities which are asset- Branch of Deutsche Bank (DBNY)) exemption; backed securities or as indenture trustee provide a wide range of banking, (iii) Any officer, director, or highly of securities which are either asset- fiduciary, record keeping, custodial, compensated employee (within the backed securities or other debt brokerage and investment services to meaning of section 4975(e)(2)(H) of the securities that meet the requirements of corporations, institutions, governments, Code) of the Asset Manager, responsible this proposed exemption. For purposes employee benefit plans, governmental for the transactions described in section of this proposed exemption, other than retirement plans and private investors I, is an officer, director, or highly section I(t), performing services as worldwide. DB is regulated by the compensated employee (within the custodian, paying agent, registrar or in Bundesanstalt fuer meaning of section 4975(e)(2)(H) of the similar ministerial capacities is also Finanzdienstleistungsaufsicht (the Code) of the Client Plan sponsor or of considered serving as trustee or ‘‘BAFin’’) in Germany. the fiduciary responsible for the indenture trustee. 2. Deutsche Bank Trust Company decision to authorize or terminate Americas (‘‘DBTCA’’) is a New York authorization for transactions described Preamble banking corporation and member bank in section I. However, if such individual This document contains a notice of of the U.S. Federal Reserve System. is a director of the Client Plan sponsor pendency before the Department of a Deutsche Asset Management, Inc. or of the responsible fiduciary, and if he proposed individual exemption which, (‘‘DeAM Inc.’’) is an investment adviser or she abstains from participation in (A) if granted, would amend: PTE 2000–25, registered under the Investment the choice of the Plan’s investment issued to Morgan Guaranty Trust Advisors Act of 1940. Both DBTCA and manager/adviser and (B) the decision to Company of New York and J.P. Morgan DeAM Inc. are indirect wholly-owned authorize or terminate authorization for Investment Management, Inc. (65 FR subsidiaries of DB. DBTCA and DeAM transactions described in section I, then 35129, June 1, 2000), PTE 2000–27, Inc., among other DB Affiliates, provide section II (g)(2)(iii) shall not apply. issued to the Chase Manhattan Bank (65 investment management and investment (3) The term ‘‘officer’’ means a FR 35129, June 1, 2000), and FAN 2001– advisory services to plans covered by president, any vice president in charge 19E, issued to DB and its Affiliates (June the Act. Hereinafter, DB, DBTCA, and of a principal business unit, division or 23, 2001), pursuant to EXPRO. The DeAM Inc., and their other current and function (such as sales, administration exemptions, and EXPRO authorization, future asset management affiliates, shall or finance), or any other officer who respectively, permit purchases of be collectively referred to as the ‘‘Asset performs a policy-making function for securities by the Applicants’ asset Manager’’ when discussing DB’s the entity. management affiliate on behalf of activities relating to investment (4) In the case of existing Client Plans employee benefit plans for which such management or investment advisory in a Pooled Fund, at the time the Asset asset management affiliate is a fiduciary, services. Collectively, assets under Manager provides such Client Plans from underwriting or selling syndicates management by DB and its Affiliates with initial notice pursuant to this where the Applicants’ broker-dealer through collective trusts, separately exemption, the Asset Manager will affiliate participates as a manager or managed accounts, and mutual funds notify the fiduciaries of such Client syndicate member. If granted, this currently exceed $585 billion. Plans that they must advise the Asset proposed amendment would permit a 3. Deutsche Banc Securities, Inc., a Manager, in writing, if they are not plan’s asset manager to acquire wholly-owned subsidiary of DB, is a independent, within the meaning of this securities, on behalf of the plan, in an registered broker-dealer (hereinafter, section II (g). initial public offering (IPO) when it or collectively with any other current and (h) The term ‘‘security’’ shall have the its affiliate is the trustee, indenture future broker-dealer affiliates, the same meaning as defined in section trustee or a similar functionary for the ‘‘Affiliated Broker-Dealer’’) and 2(36) of the Investment Company Act of trust which issued the securities. Thus, regulated by the United States Securities 1940 (the 1940 Act), as amended (15 the relief requested is designed to cover & Exchange Commission (‘‘SEC’’) under U.S.C. 80a–2(36)(1996)). For purposes of acquisitions of asset-backed securities Section 15 of the Securities Exchange this exemption, mortgage-backed or by plans where the plans’ asset manager Act of 1934. The Affiliated Broker- other asset-backed securities rated by a is affiliated with such a trustee for an Dealer serves, and engages in
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transactions with, plans covered by the management, investor and institutional the latter are treated for tax purposes as Act. trust service businesses; equity or debt) in an initial offering 4. J.P. Morgan Chase & Co. (‘‘J.P. • J.P. Morgan Partners, a large and where an Affiliate of the Asset Manager Morgan Chase’’) is a financial holding diversified private equity investment is the trustee or indenture trustee but company incorporated under Delaware firm, with total funds under where no member or manager of the law in 1968 and headquartered in New management in excess of $30 billion; underwriting syndicate is an Affiliate of York, New York. As of December 31, and the Asset Manager; or • 2001, after giving effect to the merger Retail and Middle Market Financial (iii) Where an Asset Manager seeks to referred to below, J.P. Morgan Chase Services, which serves over 30 million purchase securities (debt or asset- was the second largest banking consumers, small business and middle- backed securities, regardless of whether institution in the United States, with market customers nationwide. Retail the latter are treated for tax purposes as approximately $694 billion in assets and and Middle Market Financial Services equity or debt) in an initial offering approximately $41 billion in offers a wide variety of financial where an Affiliate of the Asset Manager stockholders’ equity. On December 31, products and services, including is both the trustee or indenture trustee 2000, J.P. Morgan & Co. Incorporated consumer banking, credit cards, and a manager or member of the merged with and into The Chase mortgage services and consumer finance underwriting syndicate. Manhattan Corporation. Upon services, through a diverse array of In such instances involving an completion of the merger, The Chase distribution channels, including the ‘‘AUT’’, the exemption (if granted) Manhattan Corporation changed its internet and branch and ATM networks. would permit an Asset Manager to purchase for its Client Plans, or Pooled name to ‘‘J.P. Morgan Chase & Co.’’ Requested Exemption J.P. Morgan Chase is a global financial Funds, securities in an initial public 5. The Applicants seek to amend offering (i.e., an IPO) from underwriting services firm with operations in over 60 existing individual exemptions (i.e., countries, and has as its principal bank or selling syndicates in which the PTE 2000–25 (JP Morgan); PTE 2000–27 Affiliated Broker-Dealer participates as a subsidiaries: JPMorgan Chase Bank, a (Chase)) and an authorization made New York banking corporation manager or member. In such instances pursuant to PTE 96–62 a/k/a/ EXPRO involving an ‘‘ATT’’, DB or JPMorgan headquartered in New York City, which (i.e., FAN 2001–19E (DB)) that deal with Chase Bank or an Affiliate of either, will was formed in November 2001 by the the situation where an Asset Manager act as a trustee, indenture trustee, or merger of The Chase Manhattan Bank seeks to purchase securities for an similar functionary (collectively, a and Morgan Guaranty Trust Company of employee benefit plan, in an initial ‘‘Trustee’’) with respect to the issuer of New York; and Chase Manhattan Bank offering, where the Asset Manager’s the securities (i.e., a trust). The USA, National Association, Affiliate is a manager or member of the Applicants state that all such purchases headquartered in Delaware. underwriting syndicate for such of securities, whether in an ‘‘AUT’’ or The principal non-bank subsidiary of securities. Such a transaction is ‘‘ATT’’ or both, would be made from an J.P. Morgan Chase is its investment bank described herein as an Affiliated underwriter or broker-dealer other than subsidiary, J.P. Morgan Securities Inc. Underwriter Transaction or ‘‘AUT’’. The the Affiliated Broker-Dealer and that the (‘‘J.P. Morgan Securities’’). J.P. Morgan amendment proposed by the Applicants Affiliated Broker-Dealer would not Investment Management Inc. (‘‘JPMIM’’) would add relief for two other receive any selling concessions with is a wholly-owned subsidiary of J.P. transactions: (i) Where the Asset respect to the securities sold to Client Morgan Chase. J.P. Morgan Fleming Manager is related to the trustee of the Plans. Thus, the proposed exemption Asset Management (USA) Inc. trust that issued the securities being would not cover any purchases of (JPMFAM), which was formerly known underwritten or the indenture trustee of securities for a plan by an Asset as Chase Asset Management, Inc., is a securities that are debt securities but its Manager directly from the Asset wholly-owned subsidiary of JPMorgan Affiliated Broker-Dealer is not part of Manager’s Affiliate.3 Chase Bank. the underwriting syndicate (i.e., an 6. The Applicants represent that The activities of J.P. Morgan Chase are Affiliated Trustee Transaction or where the Affiliated Broker-Dealer is a internally organized, for management ‘‘ATT’’); and (ii) where the Asset member of an underwriting or selling reporting purposes, into five major Manager is related both to the trustee syndicate, the Asset Manager generally businesses: and to a member or manager of the makes purchases of securities for its • Investment Banking, which underwriting syndicate (i.e., both an Client Plans in compliance with part III includes securities underwriting and ‘‘AUT’’ and an ‘‘ATT’’ at the same time). of PTE 75–1, 40 FR 50845 (October 31, financial advisory, trading, mergers and Therefore, the Applicants represent 1975). PTE 75–1, part III, provides a acquisitions advisory, and corporate that the exemption, if granted, could be class exemption, under certain lending and syndication businesses; used in any of the following conditions, for a plan fiduciary to • Investment Management and circumstances: purchase securities from an Private Banking, which includes an (i) Where an Asset Manager seeks to underwriting or selling syndicate of asset management business, including purchase securities (equities, debt, or which the fiduciary or an affiliate is a mutual funds; institutional money asset-backed securities, regardless of member. However, relief under PTE 75– management and cash management whether the latter are treated for tax 1 is unavailable if the fiduciary or its businesses; and a private bank, which purposes as equity or debt) in an initial affiliate is a manager of the provides wealth management solutions offering where an Affiliate of the Asset underwriting or selling syndicate. for a global client base of individuals Manager is a manager or member of the 7. PTE 2000–25, PTE 2000–27 and and families; underwriting syndicate but where, in FAN 2001–19E expanded the relief • Treasury & Securities Services, the case of a debt security or an asset- which provides information and backed security, the trustee or indenture 3 With respect to possible acquisitions of asset- transaction processing services, and trustee is an unaffiliated entity; backed securities that could be made by plans in the secondary market, where the plans’ asset moves securities and cash daily for its (ii) Where an Asset Manager seeks to manager has an affiliate that acts as a sub-servicer wholesale clients. Treasury & Securities purchase securities (debt or asset- for the issuing trust, see DOL Adv. Op. 99–03A Services includes custody, cash backed securities, regardless of whether (January 25, 1999).
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afforded under PTE 75–1 to, among Applicants represent that the functions underwriters for structured finance other things, situations where the and obligations of an indenture trustee transactions, such as ABS, had affiliated Affiliated Broker-Dealer is a manager of are aligned with the interests of the note corporate trust businesses. Eight of the the underwriting or selling syndicate. holders because such a trustee is top ten trustees of trusts issuing ABS, a However, neither PTE 75–1, PTE 2000– generally appointed only to perform group with a combined market share of 25, PTE 2000–27 nor FAN 2001–19E such ministerial functions (i.e., hold over 76 percent in 2000, were affiliates currently addresses the situation where collateral, maintain records, and make of underwriters active in the structured the fiduciary or its affiliate serves as payments when due). In this regard, the finance sector.5 Trustee with respect to a trust that is the proposed exemption would also cover 11. The Applicants represent that issuer of the securities. Such trusts are situations where an Asset Manager’s currently most providers of corporate normally associated with so-called Affiliate serves as a custodian, paying trust and related services in the asset-backed securities (ABS). ABS are agent, registrar or other similar structured finance marketplace are large usually issued as certificates ministerial capacities (see Definition of banks that have the requisite staff and representing an undivided interest in a ‘‘Affiliated Trustee’’ in section II(l) systems resources to efficiently serve trust which holds a portfolio of assets above). the various types of ABS that are (e.g., secured consumer receivables or 8. The Applicants state that the common to this marketplace. Most of credit instruments that bear interest).4 Affiliated Broker-Dealer is frequently these same banks, particularly those that With respect to the types of Trustees involved in offerings of ABS and other are profitable and well capitalized, have that would be covered by the proposed securities where the Asset Manager or expanded into the securities exemption, the Applicants state that in its Affiliate serves as a Trustee for the underwriting business, including asset-backed securities, which are trust which issues such securities. The underwriting of structured finance structured as pass-through securities, inability of the Asset Manager to transactions. The Applicants represent there is generally a trustee of the pool purchase ABS or other securities for its that not only will plan investors be of assets. In certain transactions, such as Client Plans in such cases can be disadvantaged if banks and their offerings of collateralized bond detrimental to those accounts because affiliates that underwrite securities obligations (CBOs), there may also be an the accounts can lose important fixed- continue to be precluded from indenture trustee to hold the debt income investment opportunities that providing trustee services, but, further, obligation of the obligor. In more are relatively less expensive or it is clearly not in the best interest of traditional public debt offerings, there is qualitatively better than other available plan investors to eliminate those generally only an indenture trustee, who opportunities in such securities. banks—often the most competent in the holds the debt obligation of the obligor, 9. The Applicants represent that the servicing of structured finance holds any assets pledged as collateral to frequency of such offerings of ABS or transactions—from the pool of available secure payment of the debt obligation, other securities results from corporate trust service providers. makes required payments and keeps consolidation in the banking industry 12. The Applicants state that the records, and in the event of a default, and the attendant reduction in the Trustee in a structured finance acts for the note holders. The number of banks participating in the transaction for ABS, while involved in corporate trust business. Many factors complex calculations and reporting, 4 For a discussion of prohibited transactions that have made participation in the trust typically does not perform any under the Act and exemptions relating to a plan’s business less attractive to banks have discretionary functions. Such a Trustee acquisition and holding of ABS, interested persons contributed to this trend. On the income should review PTE 2002–41 (67 FR 54487, August operates as a stakeholder and strictly in 22, 2002) and the so-called ‘‘Underwriter side, these factors include competitive accordance with the explicit terms of Exemptions’’ listed therein, as well as PTE 2002– pressure on pricing corporate trust the governing agreements, so that the 19 (67 FR 14979, March 28, 2002), which amended services and loss of transactional fees intent of the crafters of the transaction three of the Underwriter Exemptions granted to J.P. and traditional ‘‘float’’ income due to Morgan Chase and certain Affiliates prior to the may be carried out. These functions are general amendment to the other Underwriter the growth in book entry securities. On essentially ministerial and include Exemptions provided by PTE 2002–41. the expense side, the Applicants establishing accounts, receiving funds, Thus, the proposed exemption, if granted, would represent that the cost of entry into the making payments, and issuing reports, provide relief for prohibited transactions relating to corporate trust business and the cost of all in a predetermined manner. Unlike a plan’s acquisition and holding of ABS where a remaining competitive in the business Plan’s Asset Manager is affiliated with the Trustee trustees for corporate or municipal debt, of an issuing trust for a series of ABS (i.e., an ATT). have increased dramatically. This Trustees in structured finance However, other prohibited transactions that may be increase includes both technological transactions for ABS need not assume involved with the plan’s investment in ABS would and personnel costs which are necessary discretionary functions to protect the have to be covered by an existing Underwriter to remain competitive. The cost increase Exemption (absent any other applicable exemption), interests of debt holders in the event of including amendments relating thereto as described is particularly acute in the structured default or bankruptcy because in PTEs 2002–19 and 2002–41. Interested persons finance sector of the corporate trust structured finance entities are designed should also review the Department’s regulations business, where both systems and staff to be bankruptcy remote vehicles. The defining ‘‘plan assets’’ for purposes of plan need to have the capability of Applicants represent that there is no investments (see 29 CFR 2510.3–101, Definition of supporting increasingly complex ‘‘plan assets’’—plan investments). The Department notes that a fiduciary or other transactions. 5 Under the Gramm-Leach-Bliley Act, signed into party in interest desiring relief afforded by one or 10. The Applicants represent that law by the President on November 12, 1999, certain the other of these exemptions would have to ensure equally significant are the changes in provisions of the Glass-Steagall Act and the Bank that the applicable conditions of the appropriate the securities underwriting business, Holding Company Act of 1956, as amended, are exemption are met. Thus, for example, if the repealed. The Department notes that the effect of securities sold in an underwriting are asset-backed including increased participation by such law will likely be further consolidation of the securities, both the proposed exemption and the banks and bank affiliates, and financial services industry. The new law will existing exemptions involving asset-backed consolidation within the industry. In facilitate cross-ownership and control among bank securities referred to above may be relevant for the 1990, Morgan Guaranty was the only holding companies and securities firms through the contemplated transactions. However, it should be creation of ‘‘financial holding companies’’ that will noted that the party seeking the relief offered by a bank in the corporate trust business that be permitted to engage in a broad range of financial particular exemption must ensure that the also had a significant underwriting and related activities, including underwriting and conditions of the exemption have been met. affiliate. By 2000, four of the top ten dealing activities.
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‘‘issuer’’ outside the structured 13. According to the Applicants, the Applicants further represent that the transaction to pursue for repayment of role of the underwriter in a structured protective conditions of the requested the debt. The Trustee’s role is defined financing for a series of ABS involves, exemption (e.g., the requirement of by a contract-explicit structure that among other things, assisting the advance approval by an independent spells out the actions to be taken upon sponsor or originator of the applicable fiduciary and reporting of the basis for the happening of specified events. The receivables or other assets in structuring the Trustee’s fee) render this possibility Applicants state that there is no the contemplated transaction. The remote. opportunity (or incentive) for the Trustee becomes involved later in the In this regard, the Applicants state Trustee in a structured finance process, after the principal parties have that the present conditions of the transaction, by reason of its affiliation agreed on the essential components, to proposed exemption, which are based with an underwriter, asset manager, or review the proposed transaction from on the prior individual exemptions otherwise, to take or not to take actions the limited standpoints of technical granted by the Department for an that might benefit the underwriter or workability and potential Trustee ‘‘AUT’’, impose adequate safeguards as asset manager to the detriment of plan liability. After the issuance of securities well for an ‘‘ATT’’ in order to prevent investors. to plan investors in a structured possible abuse. First, there are With respect to offerings of more financing, while the Trustee performs significant limitations on the quantity of traditional public debt securities that its role as Trustee over the life of the securities that the Asset Manager may are not part of a structured finance transaction, the underwriter of the acquire for a Client Plan, meaning not transaction, the Applicants state that an securities has no further role in the only that there will be significant indenture trustee may have more transaction. In addition, the Trustee has limitations on the ability of the Asset discretion when the issuer of the no opportunity to take or not take Manager to affect the fees of its Affiliate, securities is not bankruptcy remote.6 In action, or to use information in ways but also insuring that significant such instances, indenture trustees that might advantage the underwriter to numbers of independent investors also generally exercise meaningful discretion the detriment of plan investors. The decided that the securities were an only in the context of a default, at which Applicants state that an underwriter, in appropriate purchase. Second, the Asset time the indenture trustee has the duty order to protect its reputation, clearly Manager must obtain the consent of an to act for the bondholders, in a manner wants the transaction to succeed as it independent fiduciary to engage in consistent with the interests of investing was structured, which includes the these transactions. Third, regular plans (and other investors) and not with Trustee performing in a manner reporting of the subject transactions to the interests of the issuer. In such independent of the underwriter. an independent fiduciary will take situations, an indenture trustee may be 14. The Applicants represent that, in place. Fourth, an independent fiduciary an affiliate of an underwriter for the many offerings of ABS or other must be provided information on how securities. In the event of a default, the securities, the Trustee’s fee is a fixed securities purchased under the duty of an indenture trustee in pursuing dollar amount that does not depend on proposed exemption actually the bondholders’ rights against the the size of the offering. In such cases, performed. Finally, the consent of the issuer might conflict with the indenture the Asset Manager has no conflict of independent fiduciary may be revoked trustee’s other business interests. interest in an ATT because it cannot if it suspects that purchases by the Asset However, the Applicants represent that increase the Trustee’s fee by causing Manager have been motivated by a under the Trust Indenture Act of 1939 Client Plans to participate in the desire to generate fees for its Affiliated (the Trust Indenture Act), an indenture offering. Where the Trustee’s fee in an Trustee. trustee whose affiliate has, within the ATT is a portion of the principal prior 12 months, underwritten any amount of outstanding securities to be Investments in Offered Securities securities for an obligor of the indenture offered, the Asset Manager could 15. The Applicants represent that the securities generally must resign as conceivably cause Client Plans to Asset Manager makes investment indenture trustee if a default occurs participate to affect the size of the decisions on behalf of, or renders 8 upon the indenture securities. Thus, the offering and thus the Trustee’s fee. The investment advice to, its Client Plans in Applicants maintain that this accordance with the governing requirement and other provisions of the Applicants, the premise for this change was that document of the particular Client Plan until such a default occurs, there is no risk that the Trust Indenture Act are designed to trustee could or would act in any way that might or Pooled Fund and the guidelines and protect bondholders from conflicts of conflict with the interests of security holders (i.e., objectives established in the investment interest to which an indenture trustee certificate holders of ABS). One of the reasons for management or advisory agreement. 7 the amendments to the Trust Indenture Act was the may be subject. recognition of the alternative: withdrawal from the Since the Client Plans are covered by corporate trust business of the largest and best Title I of the Act, such investment 6 The amount of discretion possessed by an service providers, whose management would decisions are also subject to the indenture trustee will depend on the terms of the undoubtedly be attracted to the greater profitability fiduciary responsibility provisions of particular indenture, and factual issues, such as of underwriting as opposed to the steady, but 9 whether a default has occurred. smaller profits from acting as an indenture trustee. the Act. 7 The Applicants submit that the Trust Indenture According to the Applicants, the amendment to the Act addresses analogous circumstances and is thus Trust Indenture Act has in fact proved to be a the securities issued in the offering, the amount of instructive regarding potential conflicts of interest. benefit to the public in encouraging the best the trustee’s fee would be, in fact, a fixed dollar DB represents that the Trust Indenture Act was providers of trustee services to continue to provide amount that would be known to plan investors as amended in 1990 to correct unnecessarily such services. part of disclosures made relating to the offering restrictive provisions that deemed a conflict of 8 The Applicants note that this theoretical conflict (e.g., the prospectus or private placement interest to exist where an indenture trustee or its is directly addressed by the protective conditions in memorandum). The Department notes that plan affiliate simultaneously acts in other capacities the Underwriter Exemptions and in this proposed fiduciaries would have a duty to adequately review, (e.g., underwriter) for the issuer of the debt exemption. In this regard, the Applicants state that and effectively monitor, all fees paid to service- securities. The Applicants state that the U.S. the exemption (if granted) will apply only to firm providers, including those paid to parties affiliated Congress, at the SEC’s instigation, determined that commitment underwritings, where, by definition, with an Asset Manager. an indenture trustee and its affiliates could act in the entire issue of securities will be purchased, 9 By proposing this exemption, the Department is multiple capacities (including as trustee and either by the public or the underwriters (see section not expressing an opinion regarding whether any underwriter for the issuer) absent a default under I(a)(3) above). Thus, where the trustee’s fee would investment decisions or other actions taken by an the governing trust indenture. According to the be a fixed percentage of the total dollar amount of Continued
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16. The Applicants state that a required disclosures to an Independent FOR FURTHER INFORMATION CONTACT: Gary decision by an Asset Manager for a Fiduciary of each Client Plan and obtain Lefkowitz of the Department, telephone Client Plan to invest in particular written authorization for such (202) 693–8546. (This is not a toll-free securities is made on the basis of price, transaction (i.e., an ATT); number). IBEW Local No. 1 Health and value, and the particular Client Plan’s (g) The Asset Manager will provide Welfare Fund, (the Welfare Fund) and investment criteria, not on whether the regular reporting to an Independent IBEW Local No. 1, Apprenticeship and Trustee with respect to the securities is, Fiduciary of each Client Plan with Training Fund, (the Training Fund; or is affiliated with, the Asset Manager. respect to all securities purchased collectively, the Funds or the The Applicants further assert that the pursuant to the exemption, if granted, Applicants), located in St. Louis, MO. Asset Manager has little incentive to including all ATTs; (Application Nos. L–11155 and L– make purchases for Client Plans in IPOs (h) Each Client Plan participating in 11156, respectively.) involving an ATT that are not in the these transactions will be subject to a Proposed Exemption interests of the Client Plans because the minimum size requirement of at least Asset Manager’s compensation for its $50 million ($100 million for ‘‘Eligible The Department is considering services is generally based upon total Rule 144A Offerings’’), with certain granting an exemption under the assets under its management. If the exceptions for Pooled Funds; authority of section 408(a) of the Act (or assets under its management do not (i) The Asset Manager must have total ERISA) and in accordance with the perform well, the Asset Manager will assets under management in excess of procedures set forth in 29 CFR part receive less compensation and could $5 billion and shareholders’ or partners’ 2570, subpart B (55 FR 32836, 32847, lose the Client Plan’s future business. equity in excess of $1 million; and August 10, 1990). If the exemption is According to the Applicants, the (j) The Trustee will be unable to granted, the restrictions of section proposed exemption would be in the subordinate the interests of the 406(a) of the Act shall not apply to the interest of a Client Plan’s participants investing Client Plans to those of the lease of certain classroom space and and beneficiaries because it will Asset Manager. supplemental facilities (the Lease) by increase investment opportunities for For a complete discussion of the facts the Welfare Fund to the Training Fund, such plans in ABS or other securities. and representations supporting the a party in interest with respect to the Failure to grant the exemption will Department’s decision to grant the Welfare Fund. unnecessarily restrict the investment original exemptions for JPMorgan Chase The proposed exemption is subject to opportunities available to Client Plans Bank and its Affiliates (i.e., PTEs 2000– the following conditions: in fixed-income securities. (1) The terms of the Lease are at least 17. In summary, the Applicants 25 and 2000–27) for AUTs, interested favorable to the Welfare Fund and the represent that the proposed transactions persons should review the notice of Training Fund as those obtainable in an will satisfy the statutory criteria for an proposed exemption for Morgan arm’s length transaction with an exemption under section 408(a) of the Guaranty Trust of New York, et al., unrelated party. Act because: published in the Federal Register on (a) The Client Plans will gain access February 8, 2000 (65 FR 6229). (2) Qualified, independent appraisers to desirable investment opportunities; Copies of all documents relating have determined the initial amount of (b) In each offering, the Asset Manager thereto are available for public the Lease payments. will purchase the securities for its Client inspection and may be obtained by (3) A qualified, independent Plans from an underwriter or broker- interested persons from the Public fiduciary, The Philip Company (TPC), dealer other than the Affiliated Broker- Documents Room, Employee Benefits has approved the Lease and has agreed Dealer; Security Administration, U.S. to monitor the terms of the exemption, (c) Conditions similar to those of PTE Department of Labor, Room N–1513, at all times, on behalf of the Welfare 75–1, part III, will restrict the types of 200 Constitution Avenue, NW., Fund. securities that may be purchased, the Washington, DC 20210. (4) The independent fiduciary agrees types of underwriting or selling Interested persons should request File to take whatever actions are necessary syndicates and issuers involved, and the Numbers D–10119 and D–10120, and D– and proper to enforce the Welfare price and timing of the purchases; 10779 with respect to the application for Fund’s rights under the Lease and to (d) The amount of securities that the JPMorgan Chase Bank (formerly, Morgan protect the participants and Asset Manager may purchase on behalf Guaranty Trust of New York and The beneficiaries of the Welfare Fund. of Client Plans will be subject to Chase Manhattan Bank). With regard to (5) The rental payments under the percentage limitations; FAN 2001–19E for DB and its Affiliates, Lease are adjusted once every five years (e) The Affiliated Broker-Dealer will interested persons should request File by the independent fiduciary to ensure not be permitted to receive, either Number E–00226. that such Lease payments are not greater directly, indirectly, or through Notice to Interested Persons: The than or less than the fair market rental designation, any selling concessions Applicants represent that because those value of the leased space. with respect to the securities sold to the potentially interested Client Plans that (6) The fair market rental amount for Asset Manager; may invest in securities, involving the leased space, at no time, will exceed (f) Prior to any purchase of securities, either an AUT or an ATT (or both), 25 percent of the assets of either Fund, the Asset Manager will make the cannot all be identified, the only including any improvements that are practical means of notifying such Client constructed thereon. Asset Manager regarding the acquisition and Plans of this proposed exemption is by (7) The independent fiduciary and the holding of ABS or other securities in an ATT would be consistent with its fiduciary obligations under the publication of this notice in the Board of Trustees of the Welfare Fund part 4 of title I of the Act. In this regard, section Federal Register. Comments and (the Welfare Fund Trustees) have 404 of the Act requires, among other things, that a requests for a hearing must be received determined that the Lease is an plan fiduciary act prudently, solely in the interest by the Department not later than 30 appropriate investment for the Welfare of the plan’s participants and beneficiaries, and for the exclusive purpose of providing benefits to days from the date of publication of this Fund and is in the best interest of the participants and beneficiaries when making notice of proposed exemption in the Welfare Fund’s participants and decisions on behalf of a plan. Federal Register. beneficiaries.
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(8) The Board of Trustees of the located at 2300 Hampton Avenue, St. Pension Fund is one of the employee Training Fund (the Training Fund Louis, Missouri (the 2300 Hampton benefit plans administered by the Trustees) has determined that the Lease Avenue Building). Service Center. The three 3260 Hampton transaction is an appropriate investment 3. The Welfare Fund is administered Avenue Buildings comprise a total of for the Training Fund and is in the best by six trustees. Three of the Welfare 12,000 square feet of space. Of this total, interest of the Training Fund’s Fund Trustees are appointed by Local 1 the Service Center leases 9,300 square participants and beneficiaries. while the remaining three Welfare Fund feet of space in these premises.12 Two Trustees have been appointed by the St. unrelated tenants occupy the remaining Summary of Facts and Representations Louis Chapter, NECA. The Local 1 space in the 3260 Hampton Avenue 1. The Welfare Fund, which operates appointed Welfare Fund Trustees are Buildings. under a formal Trust Agreement, is a Messrs. Stephen P. Schoemehl, James The Welfare Fund is administered by collectively-bargained, multiemployer Reinheimer and Mathew Lampe. The St. the Service Center in the 3260 Hampton joint welfare plan. The Welfare Fund Louis Chapter, NECA appointed trustees Avenue Buildings. Of the 9,300 square provides medical and related benefits to of the Welfare Fund are Messrs. Douglas feet of space leased by the Service union electricians and their families. R. Martin, Robert Kaemmerlen and Eric Center, employees of the Service Center The Welfare Fund was established by Aschinger. perform work for the Welfare Fund Local 1, of the International The Training Fund is also within approximately 3,965 square feet Brotherhood of Electrical Workers, administered by six trustees, three of of space. AFL–CIO (Local 1), a labor organization, whom are appointed by Local 1, and The parking facilities at the 3260 and the St. Louis Chapter, of the three of whom are appointed by the St. Hampton Avenue Buildings are limited National Electrical Contractors Louis Chapter, NECA. The Local 1 with a total of 45 spaces, of which 13 Association (St. Louis Chapter, NECA), appointed Training Fund Trustees are spaces are leased to the two outside an employer association. Messrs. Stephen P. Schoemehl, Thomas tenants. There is no convenient The benefits provided by the Welfare E. George, and Dan King. The St. Louis overflow parking at the 3260 Hampton Fund are funded by contributions made Chapter, NECA appointed Training Avenue Buildings. by the employers pursuant to collective Fund Trustees are Messrs. Douglas R. 5. Under section 4.05 of the Welfare bargaining agreements between Local 1 Martin, T. Michael Fogarty, and Stephen Fund Trust Agreement, the Welfare and the St. Louis Chapter, NECA. As of J. Kohnen. As noted herein, Messrs. Fund Trustees are authorized to invest December 31, 2001, the Welfare Fund Stephen P. Schoemehl and Douglas in real estate. Therefore, on September had net assets available for benefits of Martin are common Trustees to both 26, 2002, the Welfare Fund Trustees $87,890,891 based upon audited Funds. signed a contingent sales contract for financial statements.10 As of April 30, 4. The IBEW–NECA Service Center the purchase of a two-story, concrete 2003, the Welfare Fund had 4,782 (the Service Center), which is a ‘‘not for block building, with office and training participants. The Welfare Fund’s profit’’ Missouri corporation, is a party center facilities, located at 5735 operations are located at 3260 Hampton in interest with respect to the Welfare Elizabeth Avenue, St. Louis, Missouri Avenue, St. Louis, Missouri. Fund because it is an employer whose (the 5735 Elizabeth Avenue Building) 2. The Training Fund, which is employees participate in such Fund. with the owner, the Plumbers’ and administered under a formal Trust The Board of Directors of the Service Pipefitters’ Welfare Educational Fund, Agreement, is a collectively-bargained, Center are appointed by the Business an unrelated party. Following the initial multiemployer joint apprenticeship Manager of Local 1 and the St. Louis planning meetings, Messrs. Schoemehl training plan. The Training Fund was Chapter, NECA. The Service Center and Martin, who are the common established by Local 1 and the St. Louis provides employee benefit plan Trustees of the Welfare Fund and the Chapter, NECA. The Training Fund administration to approximately 17 Training Fund, did not participate in provides training and educational welfare and pension funds, including the decisions to purchase the 5735 benefits to electrical apprentices and the Funds. The largest group of Elizabeth Avenue Building or to lease it, journeymen. The benefits are funded by employee benefits funds administered in accordance with the Lease described contributions made by the employers to by the Service Center were established herein. Under the terms of the contingent the Training Fund pursuant to collective by Local 1 and the St. Louis Chapter, sales contract, the Welfare Fund must bargaining agreements between Local 1 NECA pursuant to collective bargaining. satisfy the purchaser’s contingencies and the St. Louis Chapter, NECA. The The Service Center also administers employee benefit funds established by prior to the last day of the applicable Training Fund is a party in interest with Local 257, IBEW, and the St. Louis contingency period. The contingencies respect to the Welfare Fund because Chapter, NECA, and a pension fund to be satisfied contemplate the Welfare employees of the Training Fund are established by the Illinois Chapter, Fund (a) obtaining any and all participants in the Welfare Fund. As of NECA and several locals of the IBEW. inspections and assessment reports December 31, 2002, the Training Fund The Service Center’s costs of pertaining to the 5735 Elizabeth Avenue had net assets available for benefits of administration are allocated among the Building; (b) obtaining a commitment $4,998,407 based upon audited financial various employee benefit funds that the for title insurance; (c) obtaining a survey statements.11 As of April 30, 2003, the Service Center administers. of the 5735 Elizabeth Avenue Building Training Fund had 3,267 participants. The Service Center’s sole The Training Fund’s present facility is administrative facility is located at 3260 12 As noted above, the Pension Fund currently Hampton Avenue, St. Louis, Missouri. leases portions of its 3260 Hampton Avenue 10 According to the Applicants, the Welfare Buildings to the Service Center, a party in interest Fund’s 2002 audit report has not been completed. There, the Service Center leases with respect to the Pension Fund. The Applicants However, draft balance sheets for this Fund show portions of three separate two-story represent that the current lease satisfies the terms net assets available for benefits of $91,586,030 as of buildings (the 3260 Hampton Avenue and conditions of Prohibited Transaction December 31, 2002, and $89,305,694, as of March Buildings) from the Local 1, IBEW Exemptions (PTEs) 76–1 and 77–10 (41 FR 12740, 31, 2003. March 26, 1976 and 42 FR 33918, July 1, 1977, 11 Based on an unaudited financial statement, the Pension Benefit Trust Fund (the Pension respectively). However, the Department expresses Training Fund had net assets available for benefits Fund), which is the owner of the 3260 no opinion herein on whether such lease satisfies of $4,832,184.44 as of March 31, 2003. Hampton Avenue Buildings. The the terms and conditions of these class exemptions.
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by a licensed Missouri land surveyor; Service Center, also require additional contribute $426,207 to fund its allocated (d) obtaining verification that the space for claims administration offices. share of the second floor construction present zoning and deed restrictions of The Applicants assert that the first floor costs. This will result in a total net cost the 5735 Elizabeth Avenue Building of the 5735 Elizabeth Avenue Building to the Welfare Fund of $2,262,727 for will permit the Welfare Fund’s intended will present an opportunity to expand the purchase price and renovation costs commercial use and development; (e) and consolidate the Service Center’s of the 5735 Elizabeth Avenue Building. reviewing and approving all documents administrative offices on a single floor However, such costs will not exceed 5 and contracts pertaining to the 5735 at a location that is convenient to many percent of the assets of the Welfare Elizabeth Avenue Building; (f) receiving participants because of its proximity to Fund. evidence satisfactory to the Welfare the Training Fund and Local 1, one 10. The second floor Lease of the 5735 Fund in all respects as to the economic block apart in distance. The Applicants Elizabeth Avenue Building to the feasibility of acquiring, developing, and represent that the proposed lease of Training Fund is for 8,309 square feet in improving the 5735 Elizabeth Building; office space between the Welfare Fund ‘‘white box’’ condition, with and (g) obtaining, from the Department, and the Service Center, a participating renovations completed to bring the an individual exemption from the Act’s employer, will be subject to the second floor into compliance with prohibited transactions rules in order to exemptive relief provided under PTEs applicable building codes.15 Initially, engage in the subject Lease of a portion 76–1 and 77–10. The Applicants further the Training Fund’s base rent was set at of the 5735 Elizabeth Avenue Building explain that it is the parties’ intention $10.50 per square foot 16 based upon an by the Welfare Fund to the Training that the Service Center Lease will independent appraisal (the Appraisal) of Fund. comply with the terms and conditions the property that was performed on The relevant terms of the proposed of these class exemptions.13 Therefore, November 20, 2002 by Messrs. Edward sale contemplate that the 5735 Elizabeth the Applicants do not request additional W. Dinan, MAI, CRE and Mark B. Baffa, Avenue Building will be sold to the administrative exemptive relief from the Appraiser/Analyst, who are qualified, Welfare Fund for $1,070,000 on an ‘‘as Department regarding such Lease. independent appraisers (the is’’ basis. The sale will take place 8. Accordingly, with respect to the Appraisers), employed by Dinan Real approximately 30 days from the date the second floor of the 5735 Elizabeth Estate Advisors of St. Louis, Missouri. Department publishes the notice Avenue Building, the Applicants (See Representation 14 for further granting the requested exemption in the request an administrative exemption details about the Appraisal.) The Federal Register. from the Department that will permit, if Appraisers concluded that the market 6. Under section 3.03(a)(3) of the granted, the Welfare Fund to lease rent for the first floor Service Center Training Fund Trust Agreement, the classroom space and supplemental Lease was $14.50 per square foot, and Training Fund Trustees are authorized facilities to the Training Fund. The for the second floor Training Fund to enter into a lease of buildings related exemption transaction and related Lease, $10.50 per square foot. The to the training program. In this regard, transactions will be structured as $10.50 per square foot rental amount the Applicants represent that the follows: was based on the assumption that the Training Fund requires overflow (a) The Welfare Fund will purchase Welfare Fund would fund the full classroom and lab space at a location the 5735 Elizabeth Avenue Building for $426,207 of construction costs for the which is conveniently located to the a purchase price of $1,070,000, renovation and any rehabilitation of the Training Fund’s 2300 Hampton Avenue contingent upon, among other things, second floor of the 5735 Elizabeth Building. The Applicants state that the Avenue Building. However, the the Department granting this exemption; lease of the second floor of the 5735 Training Fund Trustees decided to (b) The Welfare Fund and the Elizabeth Avenue Building would Training Fund will enter into the present an attractive opportunity for the to the Welfare Fund or the Training Fund because Training Fund to acquire overflow subject Lease for classroom space and it is not a contributing employer. However, Kadean classroom and lab space at a location supplemental facilities on the second will subcontract the electrical work on the project to signatory employers who are parties in interest that is one block away from the Training floor of the 5735 Elizabeth Avenue Building; and to the Training and Welfare Funds as contributing Fund’s existing facility in the 2300 employers. Hampton Avenue Building, and close to (c) The Welfare Fund and the Service The Department is providing no opinion in this the Local 1 office. Center will enter into the Service Center proposed exemption on whether the contemplated The Training Fund Trustees represent Lease on the first floor of the 5735 expenditures to be made by the Training Fund for Elizabeth Avenue Building in a manner the construction of the second floor of the 5735 that the Training Fund cannot meet Elizabeth Avenue Building are (or will be) current and anticipated demand for that is designed to comply with PTEs consistent with the fiduciary responsibilities training programs at the 2300 Hampton 76–1 and 77–10. contained in part 4 of title I of the Act. In this Avenue Building. This is because the 9. The construction costs in regard, the Department notes that section 404(a) of renovating the 5735 Elizabeth Avenue the Act requires, among other things, that plan 2300 Hampton Avenue Building is fiduciaries act prudently and solely in the interest located on a landlocked parcel. The Building are estimated at $1,503,934, of the plan and its participants and beneficiaries Training Fund Trustees also state that with an estimated additional $115,000 when providing benefits to such participants and constructing on the existing land parcel in professional costs related to beneficiaries and defraying reasonable expenses of architectural, legal, and appraisal administering the plan. would be disruptive and costly for the 15 14 The Applicants represent that the Welfare Fund Training Fund. Furthermore, the services. The Training Fund will and the independent fiduciary are required to Training Fund Trustees maintain that approve any alterations, additions, modifications, 13 leaving the existing facility at 2300 The Welfare Fund Trustees represent that the or improvements of a permanent nature to the Service Center Lease will satisfy the terms and second floor. During the term of the Lease, the Hampton Avenue would not be an conditions of PTEs 76–1 and 77–10. However, the alterations are the property of the Training Fund, option for the Training Fund because it Department expresses no opinion herein on and the Training Fund is required to reimburse the owns the property and, as of 1999, whether such lease will satisfy the terms and Welfare Fund for any additional taxes, inspections, renovations costing $1,600,000 were conditions of these class exemptions. and fees that are attributable in any way to such 14 It is contemplated that Kadean Construction alterations. At the expiration of the Lease, or sooner made to the building. Company (Kadean), a general contractor, will termination, the alterations automatically become 7. The Applicants state that the perform the renovation work to be performed for the property of the Welfare Fund. Welfare Fund and its administrator, the the Training Fund. Kadean is not a party in interest 16 Or $7,270 monthly and $87,245 annually.
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finance the second floor improvements percent of the operating costs associated Avenue Building of approximately by agreeing to pay the Welfare Fund with the 5735 Elizabeth Avenue $2,290,000, with a projected return $426,207, thereby buying down the Building. ranging from 8.5 percent to 9.5 percent, Training Fund’s rent to $6 per square 13. The Welfare Fund anticipates a represents approximately 2.6 percent of foot.17 rate of return on the 5735 Elizabeth the Welfare Fund’s assets. The Welfare 11. The Training Fund Lease is a Building of between 8.5 percent to 9.5 Fund’s investment consultant, Mr. written, triple net lease, having an percent. With the assistance of the Randall Kirkland, has reviewed the initial term of five years and two five independent fiduciary, TPC, the Welfare contemplated purchase and has year renewal options. The Training Fund has established a contingency concluded that it does not represent an Fund will pay 41.25 percent of the reserve of 10 percent of the projected over-concentration in real estate and operating costs of the Building. Among construction costs ($150,000). If the will fit the long term investment goals others, these operating expenses include entire contingency reserve is used, the of the Welfare Fund which is funding real estate taxes and insurance. At the Welfare Fund’s projected return is 8.55 for retiree medical. Furthermore, the time the Lease options are to be percent. Welfare Fund Trustees, and for that exercised, rent is to be set by the 14. As noted briefly in Representation matter, the Training Fund Trustees, Welfare Fund’s independent fiduciary, 10, on November 25, 2002, the Welfare have determined that the Lease is an who has experience in real estate Fund Trustees obtained an independent appropriate transaction for the Funds valuations. appraisal report (the Appraisal Report) and is in the best interests of the Section 2.2 of the Training Fund of the 5735 Elizabeth Avenue Building. participants and beneficiaries of such Lease provides that the rent may be In the Appraisal Report, the Appraisers Funds. increased by the independent fiduciary, also valued the proposed improvements 17. The Welfare Fund Trustees have at the time of renewal, but in no event and the contemplated Leases. retained TPC to serve as independent can the rent drop below the preceding Initially, the Appraisers determined fiduciary with respect to the Training term’s rent. In this respect, the Welfare that the fair market value of a fee simple Fund Lease and the Service Center Fund is assured that the base rent interest in the 5735 Elizabeth Avenue Lease. Mr. Philip Hulse, the President of amount remains at $6 per square foot. Building was $1,070,000 as of TPC, will undertake the specific duties However, the Training Fund will have November 20, 2002, in an ‘‘as is’’ of the independent fiduciary. Mr. Hulse the right to terminate its exercise of a condition. The Appraisers then valued is a real estate broker and a member of renewal option if the Training Fund the 5735 Elizabeth Avenue Building as several real estate organizations, does not accept the independent of September 1, 2003, on an ‘‘as including the Society of Industrial and fiduciary’s determination of rent proposed basis’’ using both a ‘‘direct Office Realtors, National Association of payable during the renewal term. capitalization’’ valuation ($2,690,000) Realtors, St. Louis Association of 12. The first floor lease of the 5735 and a sales comparison approach Realtors, Missouri Association of Elizabeth Avenue Building to the ($2,620,000). Realtors, and the Missouri State Bank Service Center, which the Applicants The Appraisal Report also included a Board of Directors. In addition, Mr. believe will be covered under PTEs 76– survey of area rents. Under the survey, Hulse has partial ownership interests in 01 and 77–10, is for 11,836 square feet the Appraisers concluded that the several real estate partnerships of over of finished office space. The Service market rent for the first floor Service two million square feet of office, Center’s rent is set at $14.50 per square Center Lease was $14.50 per square foot, industrial, and commercial space foot. The Service Center Lease is a and $10.50 per square foot for the throughout the St. Louis metropolitan written, triple net lease having a 10 year second floor Training Fund Lease. market. Since 1985, Mr. Hulse’s firm, term, with one five year renewal option. 15. As noted above, the proposed TPC, has been involved in the St. Louis, The Service Center Lease provides for rental under the Training Fund Lease Missouri commercial and industrial real yearly termination during the initial was adjusted to $6 per square foot based estate community where it has assisted term as of the last day of each lease year, upon the Training Fund agreeing to clients in a variety of capacities, provided that the Service Center gives at fund its allocated share of the including tenant and buyer least 6 months prior written notice of construction costs. These costs include, representation, site selection, asset such termination and pays a termination among others, new mechanical, disposition, investment, and fee equal to the amount of unamortized electrical and plumbing systems for the development. improvement costs and a penalty of 5735 Elizabeth Avenue Building. The On December 17, 2002, the Welfare three months’ rent. At the time the lease Appraisers, in a letter dated December Fund Trustees and Mr. Hulse on behalf option is to be exercised, rent is to be 16, 2002, considered $6 per square foot of TPC, entered into and executed an set by the Welfare Fund’s independent ‘‘market rent,’’ given the assumption independent fiduciary engagement fiduciary. that the Training Fund was financing its agreement. Pursuant to this agreement, Section 2.2 of the Service Center own improvements. The Appraisers also TPC has agreed to (a) evaluate and make Lease provides that the rent may be adjusted the direct capitalization recommendations relating to the increased by the independent fiduciary, valuation of the 5735 Elizabeth Avenue provisions on the fair market rental at the time of renewal, but in no event Building downward to $2,290,000 in value of the 5735 Elizabeth Avenue can the rent drop below the preceding order to take into account the reduction Building (and any proposed term’s rent. In this respect, the Welfare in the Training Fund’s rent to $6 per amendments thereto); (b) evaluate and Fund is assured that the base rent will square foot. However, the Appraisers’ make recommendations on the remain at $14.50 per square foot. The sales comparison valuation remained provisions of the sales contact for the Service Center will also pay 58.75 unchanged at $2,690,000. 5735 Elizabeth Avenue Building (and 16. In addition to its short term any proposed amendments thereto); (c) 17 Or $4,155 monthly and $49,854 annually. With obligations, the Welfare Fund is funding evaluate and make recommendations on the payment of renovation costs and first year rent, retiree medical benefits which is a long the provisions of the Training Fund and the Training Fund’s total investment in the 5735 Elizabeth Avenue Building ($476,061) would term funding goal similar to a pension Service Center Leases (and any represent approximately 10 percent of the Training benefit. The Welfare Fund’s projected proposed amendments thereto), and Fund’s assets. investment in the 5735 Elizabeth make a determination and
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recommendation to the Welfare Fund satisfy the statutory criteria for an 4975(c)(2) of the Code does not relieve Trustees whether such Leases would be exemption under section 408(a) of the a fiduciary or other party in interest or in the best interest and protective of the Act because: disqualified person from certain other Funds; (d) monitor the transactions (a) The terms of the Lease will be at provisions of the Act and/or the Code, related to the Training Fund Lease, least favorable to the Welfare Fund and including any prohibited transaction including verification that monthly rent the Training Fund as those obtainable in provisions to which the exemption does has been timely paid; (e) monitor the an arm’s length transaction with an not apply and the general fiduciary exemption to ensure that the terms are unrelated party. responsibility provisions of section 404 complied with and take all appropriate (b) Qualified, independent appraisers of the Act, which, among other things, actions to ensure that the Training Fund have determined the initial amount of require a fiduciary to discharge his Lease is protective and in the best the Lease payments. duties respecting the plan solely in the interest of the Welfare Fund; and (f) (c) A qualified, independent fiduciary interest of the participants and recommend to the Welfare Fund has approved the Lease and will beneficiaries of the plan and in a Trustees whether the Leases should be monitor the terms of the exemption, at prudent fashion in accordance with terminated or the amount of the Lease all times, on behalf of the Welfare Fund. payment adjustments when the five year (d) The independent fiduciary will section 404(a)(1)(b) of the Act; nor does options under the Training Fund Lease take whatever actions are necessary and it affect the requirement of section becomes due. proper to enforce the Welfare Fund’s 401(a) of the Code that the plan must On behalf of TPC, Mr. Hulse rights under the Lease and to protect the operate for the exclusive benefit of the represents that both he and the firm are participants and beneficiaries of the employees of the employer maintaining independent of, and unrelated to either Welfare Fund. the plan and their beneficiaries; Applicants. In addition, Mr. Hulse states (e) The rental payments under the (2) Before an exemption may be that he has been advised by legal Lease will be adjusted once every five granted under section 408(a) of the Act counsel to the Welfare Fund regarding years by the independent fiduciary to and/or section 4975(c)(2) of the Code, his fiduciary obligations under ERISA ensure that such rental payments are not the Department must find that the and he acknowledges and accepts such greater than or less than the fair market exemption is administratively feasible, duties, responsibilities and liabilities as rental value of the leased space. an ERISA fiduciary for the Welfare in the interests of the plan and of its (f) The fair market rental amount for participants and beneficiaries, and Fund. the leased space, at no time, will exceed In his fiduciary capacity, Mr. Hulse protective of the rights of participants 25 percent of the assets of either Fund, and beneficiaries of the plan; has reviewed and made including any improvements that are recommendations to the Welfare Fund constructed thereon. (3) The proposed exemptions, if Trustees on the purchase of the 5735 (g) The independent fiduciary, the granted, will be supplemental to, and Elizabeth Avenue Building and Welfare Fund Trustees and the Training not in derogation of, any other contemplated leases involving the Fund Trustees have determined that the provisions of the Act and/or the Code, Training Fund and the Service Center. Lease is an appropriate investment for including statutory or administrative Prior to making its determination, Mr. the Welfare Fund and is in the best exemptions and transitional rules. Hulse represents that he has examined interest of the participants and Furthermore, the fact that a transaction the Welfare Fund’s overall investment beneficiaries of the respective Funds. is subject to an administrative or portfolio, considered the liquidity statutory exemption is not dispositive of requirements of the Welfare Fund, Notice to Interested Persons whether the transaction is in fact a considered the diversification of the Notice of proposed exemption will be portfolio in light of the proposed prohibited transaction; and provided to all interested persons by transactions, and considered whether (4) The proposed exemptions, if first class mail within 10 days of the proposed transactions herein publication of the notice of pendency in granted, will be subject to the express comply with the Welfare Fund’s the Federal Register. Such notice shall condition that the material facts and investment objectives and policies. include a copy of the notice of representations contained in each Lastly, Mr. Hulse explains that he has pendency of the exemption, as application are true and complete, and reviewed the Training Fund’s published in the Federal Register, and that each application accurately creditworthiness to enter into the a supplemental statement, as described describes all material terms of the contemplated Lease. transaction which is the subject of the Based on his review, Mr. Hulse has at 29 CFR 2570.43(b)(2). Such notice exemption. determined that both the purchase and will inform interested persons of their Lease transactions are suitable for the right to comment on the proposed Signed in Washington, DC, this 19th day of Welfare Fund and its participants and exemption. Comments are due within May, 2003. beneficiaries. Mr. Hulse also believes 40 days of the date of publication of the Ivan Strasfeld, that the Training Fund’s ‘‘rent buy proposed exemption in the Federal Register. Director of Exemption Determinations, down’’ represents a common practice Employee Benefits Security Administration, within the real estate industry and is, FOR FURTHER INFORMATION CONTACT: Ms. Department of Labor. therefore, appropriate in this Silvia M. Quezada of the Department, [FR Doc. 03–12889 Filed 5–21–03; 8:45 am] transaction. Further, Mr. Hulse telephone (202) 693–8553. (This is not BILLING CODE 4510–29–P represents that due to his commercial a toll-free number.) leasing experience, he has the ability to General Information procure a fair market valuation of the rental space once the option to renew The attention of interested persons is comes due five years from the inception directed to the following: of the Lease. (1) The fact that a transaction is the 18. In summary, the Applicants subject of an exemption under section represent that the transaction will 408(a) of the Act and/or section
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DEPARTMENT OF LABOR (b) The exemption is in the interests Department’s decision to grant this of the plan and its participants and exemption, refer to the notice of Employee Benefits Security beneficiaries; and proposed exemption published on Administration (c) The exemption is protective of the March 3, 2003 at 68 FR 10041. rights of the participants and FOR FURTHER INFORMATION CONTACT: Ms. Prohibited Transaction Exemption beneficiaries of the plan. 2003–09; [Exemption Application No. Anna M.N. Mpras of the Department, D–11042] et al. Grant of Individual Metropolitan Life Insurance Company telephone (202) 693–8565. (This is not Exemptions; Metropolitan Life (MetLife) Located in New York, NY a toll-free number.) Insurance Company (MetLife) [Prohibited Transaction Exemption The JPMorgan Chase Bank (Located in 2003–09; Exemption Application No. D– New York, New York) AGENCY: Employee Benefits Security 11042] Administration, Labor. [Prohibited Transaction Exemption 2003–10; Exemption ACTION: Grant of individual exemptions. Application No. D–11062] The restrictions of sections 406(a), Exemption SUMMARY: This document contains 406(b)(1) and 406(b)(2) of the Act and exemptions issued by the Department of the sanctions resulting from the Section I—Transactions Labor (the Department) from certain of application of section 4975 of the Code, The restrictions of sections 406(a), the prohibited transaction restrictions of by reason of section 4975(c)(1)(A) 406(b)(1) and 406(b)(2) of the Act and the Employee Retirement Income 1 through (E) of the Code, shall not the sanctions resulting from the Security Act of 1974 (the Act) and/or apply, effective April 6, 2001, to the application of section 4975 of the Code, the Internal Revenue Code of 1986 (the cash sale (the Sale) to MetLife of a note by reason of section 4975(c)(1)(A)–(E) of Code). (the Note), issued by the Pacific Gas & A notice was published in the Federal the Code, shall not apply as of Electric Company (PG&E), by MetLife’s December 31, 2000, to: Register of the pendency before the Liquidity Plus Account (the Account) Department of a proposal to grant such (A) the continuation of a lease (the for which MetLife acts as investment Lease), by the Commingled Pension exemption. The notice set forth a manager and is a party in interest with summary of facts and representations Trust Fund (Strategic Property) of respect to employee benefit plans (the JPMorgan Chase Bank (the Fund) with contained in the application for Plans) invested in such Account. exemption and referred interested respect to which JPMorgan Chase Bank This exemption is subject to the (JPMCB) is the trustee (the Trustee), of persons to the application for a following conditions: office space in a certain commercial complete statement of the facts and (a) The Sale was a one-time office building (the Property) to Chase representations. The application has transaction for cash. been available for public inspection at (b) The sales price for the Note was Global Funds Service Company (CGF), a the Department in Washington, DC. The based upon an amount representing the party in interest with respect to notice also invited interested persons to greater of the Note’s outstanding employee benefit plans whose assets are submit comments on the requested principal balance, plus accrued interest, invested in the Fund (Plans) and an exemption to the Department. In or the Note’s fair market value as affiliate of JPMCB; and addition the notice stated that any determined by independent broker- (B) the continued and future interested person might submit a dealers. provision by JPMCB or its affiliates of written request that a public hearing be (c) The Account did not pay any fees, letters of credit (Letter(s) of Credit) to held (where appropriate). The applicant commissions or other expenses in guarantee the obligations of unrelated has represented that it has complied connection with the Sale. third-party tenants to pay rent to the with the requirements of the notification (d) As manager of the Account, Fund under commercial real estate to interested persons. No requests for a MetLife determined, at the time of the leases. hearing were received by the transaction, that the Sale was This exemption is subject to the Department. Public comments were appropriate for, and in the best interests conditions set forth in Section II. received by the Department as described of, the Account, the Plans investing Section II—Conditions in the granted exemption. therein, and their participants and The notice of proposed exemption beneficiaries. (A) The Fund is represented by a was issued and the exemption is being (e) MetLife took all appropriate fiduciary independent of JPMCB and its granted solely by the Department actions necessary to safeguard the affiliates (the independent fiduciary) because, effective December 31, 1978, interests of the Account and the Plans with respect to the Lease to perform the section 102 of Reorganization Plan No. in connection with the Sale. following functions: 4 of 1978, 5 U.S.C. App. 1 (1996), (f) If the exercise of any of MetLife’s (1) Confirm that when the Lease transferred the authority of the Secretary rights, claims or causes of action in originally was entered into, and as of the Treasury to issue exemptions of connection with its ownership of the modified to date, all the terms and the type proposed to the Secretary of Note results in MetLife recovering from conditions of the Lease, including those Labor. PG&E an aggregate amount that is relating to renewal options and rights of greater than the sales price for such first refusal, were commercially Statutory Findings Note, MetLife will refund such excess reasonable and at least as favorable to In accordance with section 408(a) of amount to the Account. the Plans as those terms and conditions the Act and/or section 4975(c)(2) of the Effective Date: This exemption is which could have been obtained at Code and the procedures set forth in 29 effective as of April 6, 2001. arm’s length with an unrelated third CFR part 2570, Subpart B (55 FR 32836, For a more complete statement of the party; 32847, August 10, 1990) and based upon facts and representations supporting the (2) determine, based upon a written the entire record, the Department makes appraisal report by a qualified appraiser 1 For purposes of this exemption, references to independent of JPMCB and its affiliates, the following findings: provisions of Title I of the Act, unless otherwise (a) The exemption is administratively specified, rafer also to corresponding provisions of that the leasing renewal rate the Fund feasible; the Code. will charge CGF if CGF elects to exercise
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its renewal options under the Lease, including but not limited to: the need to (1) Any person directly or indirectly effective in 2004 and thereafter, and that enforce a remedy against itself or an through one or more intermediaries, the leasing rate with respect to any affiliate with respect to its obligations controlling, controlled by, or under space leased by CGF in the Property under a Letter of Credit. common control with the person, pursuant to any rights of first refusal (C) Future Letters of Credit are issued (2) any officer, director, employee, CGF has under the Lease, accurately by JPMCB or an affiliate to guarantee the relative or partner in any such person; reflect at least fair market rental value; obligations of third-party tenants to pay and (3) negotiate and approve, subject to rent to the Fund under commercial real (3) any corporation or partnership of the appropriate ERISA fiduciary estate leases only if the following which such person is an officer, standards, such amendments to the additional conditions are met: director, partner or employee. Lease upon renewal(s) as it deems (1) JPMCB or its affiliate, as the issuer (C) The term ‘‘control’’ means the appropriate, including, for example: (i) of a Letter of Credit, has at least an ‘‘A’’ power to exercise a controlling a shorter renewal term than the current credit rating by at least one nationally influence over the management or five year term; (ii) additional renewal recognized statistical rating service at policies of a person other than an period(s) (provided that the rent paid in the time of the issuance of the Letter of individual. any time periods after February 28, Credit; Effective Date: The exemption is 2009, under any newly granted renewal (2) the Letter of Credit has objective effective as of December 31, 2000. option(s) would be at 100% of fair rental market drawing conditions and states For a more complete statement of the value, as opposed to the 95% of fair precisely the documents against which facts and representations supporting the rental value that applies for periods payment is to be made; Department’s decision to grant this through February 28, 2009); (iii) the (3) JPMCB does not ‘‘steer’’ the Fund’s exemption, refer to the notice of lease of less square footage than the tenants to itself or its affiliates in order proposed exemption published on current square footage covered under to obtain the Letter of Credit; March 21, 2003, at 68 FR 13954. the Lease; (iv) the lease of more square (4) Letters of Credit are issued only to FOR FURTHER INFORMATION CONTACT: footage than the current square footage tenants which are unrelated to JPMCB; Karen E. Lloyd of the Department, covered under the Lease (provided that and telephone (202) 693–8540. (This is not the rent paid for any square footage in (5) The terms of any future Letters of a toll-free number). excess of the current square footage Credit are not more favorable to the General Information would also be leased at 100% of fair tenants than the terms generally rental value, and not 95% of fair rental available in transactions with other The attention of interested persons is value); (v) using a ‘‘base year’’ under the similarly situated unrelated third-party directed to the following: Lease (upon which certain periodic commercial clients of JPMCB or its (1) The fact that a transaction is the increases such as taxes are calculated) affiliates. subject of an exemption under section 408(a) of the Act and/or section updated to the year 2004, and (vi) Section III—Definitions allowing CGF to install shatter-proof 4975(c)(2) of the Code does not relieve glass in the space it leases; provided (A) The term ‘‘independent fiduciary’’ a fiduciary or other party in interest or that all such amendments are not more means Aon Fiduciary Counselors, Inc. disqualified person from certain other favorable to the lessee than the terms (AFC) or any successor independent provisions to which the exemption does generally available in arm’s length fiduciary, provided that AFC or the not apply and the general fiduciary transactions between unrelated parties, successor independent fiduciary is: (1) responsibility provisions of section 404 as determined by the independent independent of and unrelated to JPMCB of the Act, which among other things fiduciary; and and its affiliates, and (2) appointed to require a fiduciary to discharge his (4) represent the Fund and the act on behalf of the Fund for the duties respecting the plan solely in the participants (Participants) in the Plans purposes described in conditions II(A) interest of the participants and as independent fiduciary in any and (B) above. For purposes of this beneficiaries of the plan and in a circumstances in addition to those exemption, a fiduciary will not be prudent fashion in accordance with described in subsection (3) above while deemed to be independent of and section 404(a)(1)(B) of the Act; nor does the Lease (including any periods of unrelated to JPMCB if: (1) Such it affect the requirement of section renewal) is in effect which would fiduciary directly or indirectly controls, 401(a) of the Code that the plan must present a conflict of interest for the is controlled by or is under common operate for the exclusive benefit of the Trustee, including but not limited to: control with JPMCB, (2) such fiduciary employees of the employer maintaining default by CGF or disagreement on an directly or indirectly receives any the plan and their beneficiaries; economic computation under the Lease. compensation or other consideration in (2) This exemption is supplemental to (B) The Fund is represented by an connection with any transaction and not in derogation of, any other independent fiduciary with respect to described in this exemption, except that provisions of the Act and/or the Code, any existing or future Letters of Credit an independent fiduciary may receive including statutory or administrative to perform the following functions: compensation for acting as an exemptions and transactional rules. (1) monitor monthly reports of rental independent fiduciary from JPMCB in Furthermore, the fact that a transaction payments of tenants utilizing a Letter of connection with the transactions is subject to an administrative or Credit issued by JPMCB or any affiliate contemplated herein if the amount or statutory exemption is not dispositive of to guarantee their lease payments; payment of such compensation is not whether the transaction is in fact a (2) confirm whether an event has contingent upon or in any way affected prohibited transaction; and occurred that calls for the Letter of by the independent fiduciary’s ultimate (3) The availability of this exemption Credit to be drawn upon; and decision and (3) more than 5 percent of is subject to the express condition that (3) represent the Fund and the such fiduciary’s annual gross revenue in the material facts and representations Participants as an independent fiduciary its prior tax year will be paid by JPMCB contained in the application accurately in any circumstances with respect to the and its affiliates in the fiduciary’s describes all material terms of the Letters of Credit which would present a current tax year. transaction which is the subject of the conflict of interest for the Trustee, (B) The term ‘‘affiliate’’ means: exemption.
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Signed at Washington, DC, this 19th day of DEPARTMENT OF LABOR notice, Docket NRTL2–92, in your May, 2003. comments. Ivan Strasfeld, Occupational Safety and Health Internet access to comments and Director of Exemption Determinations, Administration submissions: OSHA will place comments and submissions in response Employee Benefits Security Administration, [Docket No. NRTL2–92] Department of Labor. to this notice on the OSHA Web page [FR Doc. 03–12888 Filed 5–21–03; 8:45 am] Canadian Standards Association; http://www.osha.gov. Accordingly, OSHA cautions you about submitting BILLING CODE 4510–29–P Application for Expansion of Recognition information of a personal nature (e.g., social security number, date of birth). DEPARTMENT OF LABOR AGENCY: Occupational Safety and Health There may be a lag time between when Administration (OSHA), Labor. comments and submissions are received Employee Benefits Security ACTION: Notice. and when they are placed on the Web Administration page. Please contact the OSHA Docket SUMMARY: This notice announces the Office at (202) 693–2350 for information application of Canadian Standards about materials not available through [Application No. D–10269] Association (CSA) for expansion of its the OSHA Web page and for assistance recognition as a Nationally Recognized Withdrawal of the Notice of Proposed in using the Web page to locate docket Testing Laboratory under 29 CFR Exemption Involving the Travelers submissions. Comments and 1910.7, and presents the Agency’s submissions will also be available for Group Inc. 401(k) Savings Plan (the preliminary finding. This preliminary Plan) Located in New York, NY inspection and copying at the OSHA finding does not constitute an interim or Docket Office at the address above. temporary approval of the application. In the Federal Register dated Extension of Comment Period: Submit DATES: requests for extensions concerning this December 30, 1996, (61 FR 68794), the You may submit comments in response to this notice, or any request notice to: Office of Technical Programs Department of Labor (the Department) for extension of the time to comment, by and Coordination Activities, NRTL published a notice of proposed (1) regular mail, (2) express or overnight Program, Occupational Safety and exemption from the prohibited delivery service, (3) hand delivery, (4) Health Administration, U.S. Department transaction restrictions of the Employee messenger service, or (5) FAX of Labor, Room N3653, 200 Constitution Retirement Income Security Act of 1974 transmission (facsimile). Because of Avenue, NW., Washington, DC 20210. and from certain taxes imposed by the security-related problems there may be Or fax to (202) 693–1644. Internal Revenue Code of 1986. The a significant delay in the receipt of FOR FURTHER INFORMATION CONTACT: notice of proposed exemption comments by regular mail. Comments Sherry Nicolas, Office of Technical concerned: (1) The in-kind contribution (or any request for extension of the time Programs and Coordination Activities, by Travelers Group Inc. (TGI) of certain to comment) must be submitted by the NRTL Program, Room N3653 at the options (the Stock Option or Stock following dates: address shown immediately above for Options) into the accounts in the Plan Regular mail and express delivery the program, or phone (202) 693–2110. of eligible employees of TGI and its service: Your comments must be SUPPLEMENTARY INFORMATION: subsidiaries and affiliates (the postmarked by June 6, 2003. Employees or Employee); (2) the Hand delivery and messenger service: Notice of Application holding of the Stock Options by such Your comments must be received in the The Occupational Safety and Health accounts; and (3) the exercise of such OSHA Docket Office by June 6, 2003. Administration (OSHA) hereby gives Stock Options by Employees in order to OSHA Docket Office and Department of notice that Canadian Standards purchase shares of common stock of Labor hours of operation are 8:15 a.m. Association (CSA) has applied for TGI. to 4:45 p.m. expansion of its current recognition as Facsimile and electronic By letter dated April 29, 2003, a Nationally Recognized Testing transmission: Your comments must be Laboratory (NRTL). CSA’s expansion Citigroup Inc., (formerly TGI) and its sent by June 6, 2003. affiliates requested that the application request covers the use of additional test ADDRESSES: Regular mail, express standards. OSHA’s current scope of for exemption be withdrawn. delivery, hand-delivery, and messenger recognition for CSA may be found in the Accordingly, the notice of proposed service: You must submit three copies of following informational Web page: exemption is hereby withdrawn. your comments and attachments to the http://www.osha-slc.gov/dts/otpca/nrtl/ Signed at Washington, DC, this 19th day of OSHA Docket Office, Docket NRTL2–92, csa.html. May 2003. Room N–2625, U.S. Department of OSHA recognition of an NRTL Ivan L. Strasfeld, Labor, Occupational Safety and Health signifies that the organization has met Administration, 200 Constitution the legal requirements in section 1910.7 Director of Exemption Determinations, Avenue, NW., Washington, DC 20210. of title 29, Code of Federal Regulations Employee Benefits Security Administration, Please contact the OSHA Docket Office Department of Labor. (29 CFR 1910.7). Recognition is an at (202) 693–2350 for information about acknowledgment that the organization [FR Doc. 03–12890 Filed 5–21–03; 8:45 am] security procedures concerning the can perform independent safety testing BILLING CODE 4510–29–P delivery of materials by express and certification of the specific products delivery, hand delivery and messenger covered within its scope of recognition service. and is not a delegation or grant of Facsimile: If your comments, government authority. As a result of including any attachments, are 10 pages recognition, OSHA can accept products or fewer, you may fax them to the OSHA ‘‘properly certified’’ by the NRTL. Docket Office at (202) 693–1648. You The Agency processes applications by must include the docket number of this an NRTL for initial recognition or for
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expansion or renewal of this recognition ANSI Z21.57 Recreational Vehicle Cooking Assistant Secretary that the application following requirements in Appendix A Gas Appliances be preliminarily approved. ANSI Z21.58 Outdoor Cooking Gas to 29 CFR 1910.7. This appendix Based upon the recommendations of requires that the Agency publish two Appliances ANSI Z21.74 Portable Refrigerators for Use the staff, the Agency has made a notices in the Federal Register in With HD–5 Propane Gas preliminary finding that the Canadian processing an application. In the first ANSI Z21.76 Gas-Fired Unvented Catalytic Standards Association can meet the notice, OSHA announces the Room Heaters for Use With Liquefied requirements, as prescribed by 29 CFR application and provides its preliminary Petroleum (LP) Gases 1910.7, for the expansion of recognition. finding and, in the second notice, the UL 2017 General Purpose Signaling Devices Agency provides its final decision on an and Systems This preliminary finding does not application. These notices set forth the constitute an interim or temporary The designations and titles of the approval of the application. NRTL’s scope of recognition or above test standards were current at the modifications of this scope. time of the preparation of this notice. OSHA welcomes public comments, in The most recent notices published by OSHA recognition of any NRTL for a sufficient detail, as to whether CSA has OSHA for CSA’s recognition covered a particular test standard is limited to met the requirements of 29 CFR 1910.7 renewal and expansion of recognition, equipment or materials (i.e., products) for expansion of its recognition as a which OSHA announced on March 16, for which OSHA standards require third Nationally Recognized Testing 2001 (66 FR 15280) and granted on July party testing and certification before use Laboratory. Your comment should 3, 2001 (66 FR 35271). in the workplace. Consequently, an consist of pertinent written documents The current addresses of the testing NRTL’s scope of recognition excludes and exhibits. To consider it, OSHA must facilities (sites) that OSHA recognizes any product(s) falling within the scope receive the comment at the address for CSA are: of the test standard for which OSHA has provided above (see ADDRESSES) no later Canadian Standards Association, Etobicoke no testing and certification than the last date for comments (see (Toronto), 178 Rexdale Boulevard, requirements. CSA seeks recognition for DATES above). Should you need more Etobicoke, Ontario, M9W 1R3. testing and certification of products to time to comment, OSHA must receive CSA International, Pointe-Claire (Montreal), demonstrate compliance with the your written request for extension at the 865 Ellingham Street, Pointe-Claire, following nine standards. Quebec H9R 5E8. address provided above no later than CSA International, Richmond (Vancouver), The Underwriters Laboratories Inc. the last date for comments. You must 13799 Commerce Parkway, Richmond, (UL) test standard listed above also is include your reason(s) for any request British Columbia V6V 2N9. approved as an American National for extension. OSHA will limit an CSA International, Edmonton, 1707–94th Standard by the American National extension to 15 days unless the Street, Edmonton, Alberta T6N 1E6. Standards Institute (ANSI). However, for requester justifies a longer period. We CSA International, Cleveland, 8501 East consistency in our treatment of such may deny a request for extension if it is Pleasant Valley Road, Cleveland, Ohio standards in previous notices, we use frivolous or otherwise unwarranted. 44131 (formerly part of the American Gas the designation of the standards Association). developing organization (e.g., UL 2017) You may obtain or review copies of CSA International, Irvine, 2805 Barranca CSA’s request, the recommendation on Parkway, Irvine, California 92606. for the standard, as opposed to the ANSI designation (e.g., ANSI/UL 2017). Under the expansion, and all submitted General Background on the Application our procedures, any NRTL recognized comments, as received, by contacting the Docket Office, Room N2625, CSA has submitted a request, dated for an ANSI-approved test standard may Occupational Safety and Health March 27, 2002 (see Exhibit 30), to use either the latest proprietary version Administration, U.S. Department of expand its recognition as an NRTL to of the test standard or the latest ANSI use 17 additional test standards. The version of that standard. Contact Labor, at the above address. You should NRTL Program staff has determined that ‘‘NSSN’’ (http://www.nssn.org), an refer to Docket No. NRTL 2–92, the nine of these standards cannot be organization partially sponsored by permanent record of public information included in the expansion because they ANSI, to find out whether or not a test on CSA’s recognition. are not ‘‘appropriate test standards,’’ standard is currently ANSI-approved. The NRTL Program staff will review within the meaning of 29 CFR 1910.7(c). Preliminary Finding on the Application all timely comments, and after The staff makes similar determinations resolution of issues raised by these CSA has submitted an acceptable in processing expansion requests from comments, will recommend whether to any NRTL. Therefore, OSHA would request for expansion of its recognition as an NRTL. In connection with this grant CSA’s expansion request. The approve eight test standards for the Agency will make the final decision on expansion, which are listed below. request, OSHA did not perform an on- site review of CSA’s NRTL testing granting the expansion, and in making Through no fault of CSA, the this decision, may undertake other application has been delayed in facilities. However, NRTL Program assessment staff reviewed information proceedings that are prescribed in processing. Appendix A to 29 CFR section 1910.7. CSA seeks recognition for testing and pertinent to the request and recommended that CSA’s recognition be OSHA will publish a public notice of certification of products for this final decision in the Federal demonstration of conformance to the expanded to include the additional test Register. following additional test standards. standards listed above (see Exhibit 31). Following a review of the application Signed in Washington, DC, this 23rd day ANSI Z21.19 Refrigerators Using Gas Fuel file, the assessor’s recommendation, and of April, 2003. ANSI Z21.42 Gas-Fired Illuminating other pertinent documents, the NRTL Appliances John L. Henshaw, Program staff has concluded that OSHA ANSI Z21.45 Flexible Connectors of Other Assistant Secretary. Than All-Metal Construction for Gas should grant to CSA the expansion of [FR Doc. 03–12845 Filed 5–21–03; 8:45 am] Appliances recognition as an NRTL to use the ANSI Z21.54 Gas Hose Connectors for additional test standards listed above. BILLING CODE 4510–26–P Portable Outdoor Gas-Fired Appliances The staff, therefore, recommended to the
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NATIONAL AERONAUTICS AND from public disclosure under 10 U.S.C. 7. The estimated number of annual SPACE ADMINISTRATION 2305(g). It is imperative that the meeting respondents: None are expected in the be held on these dates to accommodate next three years. [Notice (03–053)] the scheduling priorities of the key 8. An estimate of the total number of NASA Advisory Council, Planetary participants. Visitors will be requested hours needed annually to complete the Protection Advisory Committee; to sign a visitor’s register. requirement or request: 121 hours; Meeting June W. Edwards, however, none are expected in the next three years. Advisory Committee Management Officer, AGENCY: National Aeronautics and National Aeronautics and Space 9. An indication of whether Section Space Administration. Administration. 3507(d), Pub. L. 104–13 applies: Not ACTION: Notice of meeting; [FR Doc. 03–12898 Filed 5–21–03; 8:45 am] applicable. supplementary information addition. BILLING CODE 7510–01–P 10. Abstract: Part 60 requires States and Indian Tribes to submit certain SUMMARY: In accordance with the information to the NRC if they request Federal Advisory Committee Act, Public consultation with the NRC staff Law 92–463, as amended, the National NUCLEAR REGULATORY concerning the review of a potential Aeronautics and Space Administration COMMISSION repository site, or wish to participate in announces an administrative oversight a license application review for a in the SUPPLEMENTARY INFORMATION Agency Information Collection potential repository (other than the previously provided for the forthcoming Activities: Submission for the Office of Yucca Mountain, Nevada site proposed meeting of the NASA Advisory Council Management and Budget (OMB) by the U.S. Department of Energy). (NAC), Planetary Protection Advisory Review; Comment Request Representatives of States or Indian Committee (PPAC); Notice Number 03– AGENCY: U.S. Nuclear Regulatory Tribes must submit a statement of their 051. This notice corrects that oversight Commission (NRC). authority to act in such a representative by providing additional information. ACTION: Notice of the OMB review of capacity. The information submitted by DATES: Thursday, May 29, 2003, 6:30 information collection and solicitation the States and Indian Tribes is used by p.m. to 9:15 p.m., Friday, May 30, 2003, of public comment. the Director of the Office of Nuclear 8:30 a.m. to 5 p.m., and Saturday, May Material Safety and Safeguards as a 31, 2003, 8:30 a.m. to 2:30 p.m. SUMMARY: The NRC has recently basis for decisions about the ADDRESSES: Hilton Cocoa Beach, 1550 submitted to OMB for review the commitment of NRC staff resources to North Atlantic Avenue, Cocoa Beach, following proposal for the collection of the consultation and participation Florida 32931. information under the provisions of the efforts. As provided in § 60.1, the FOR FURTHER INFORMATION CONTACT: Ms. Paperwork Reduction Act of 1995 (44 regulations in 10 CFR part 60 no longer Marian Norris, Code SB, National U.S.C. Chapter 35). The NRC hereby apply to the licensing of a geologic Aeronautics and Space Administration, informs potential respondents that an repository at Yucca Mountain. All of the Washington, DC 20546, 202/358–4452. agency may not conduct or sponsor, and information collection requirements that a person is not required to respond pertaining to Yucca Mountain were PREVIOUSLY ANNOUNCED SUPPLEMENTARY to, a collection of information unless it INFORMATION: The meeting will be closed included in 10 CFR part 63, and were displays a current valid OMB control approved by the Office of Management to the public on Friday, May 30, 2003, number. 11 a.m. to noon, in accordance with the and Budget under control number 3150– 1. Type of submission, new, revision, 0199. The Yucca Mountain site is Government Sunshine Act, 5 U.S.C. or extension: Revision. 552b(c), to hear a briefing on Mars regulated under 10 CFR part 63 (66 FR 2. The title of the information 55792, November 2, 2001). Planetary Protection issues associated collection: 10 CFR part 60—‘‘Disposal of A copy of the final supporting with an ongoing procurement. All other High-Level Radioactive Wastes in statement may be viewed free of charge times of the meeting will be open to the Geologic Repositories’’. at the NRC Public Document Room, One public up to the capacity of the room. 3. The form number if applicable: Not White Flint North, 11555 Rockville The agenda for the meeting includes the applicable. Pike, Room O–1 F21, Rockville, MD following topics: 4. How often the collection is 20852. OMB clearance requests are —Planetary Protection Program Status/ required: The information need only be available at the NRC worldwide Web Plans submitted one time. site: http://www.nrc.gov/public-involve/ —Mars Planetary Protection and Current 5. Who will be required or asked to doc-comment/omb/index.html. The Standards report: State or Indian Tribes, or their document will be available on the NRC —Communications Issues in Planetary representatives, requesting consultation home page site for 60 days after the Protection with the NRC staff regarding review of signature date of this notice. —Solar System Exploration Planetary a potential high-level radioactive waste Protection Status geologic repository site, or wishing to Comments and questions should be ADDITION TO SUPPLEMENTARY participate in a license application directed to the OMB reviewer listed INFORMATION: The meeting will be closed review for a potential geologic below by June 23, 2003. Comments to the public on Friday, May 30, 2003, repository (other than a potential received after this date will be 11 a.m. to 12:15 p.m., in accordance geologic repository site at Yucca considered if it is practical to do so, but with section 10(d) of the Federal Mountain, Nevada, currently under assurance of consideration cannot be Advisory Committee Act (5 U.S.C. app.) investigation by the U.S. Department of given to comments received after this (FACA) and the Government Sunshine Energy, which is now regulated under date. Act, 5 U.S.C. 552b(c)(3) and 552b(c)(4), 10 CFR part 63). Bryon Allen, Office of Information and to hear a briefing on Mars Planetary 6. An estimate of the number of Regulatory Affairs (3150–0127), Protection issues associated with an annual responses: None are expected in NEOB–10202, Office of Management ongoing procurement and are exempt the next three years. and Budget, Washington, DC 20503.
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Comments can also be submitted by properly perform its functions? Does the on the EA, the NRC has concluded that telephone at (202) 395–3087. information have practical utility? a Finding of No Significant Impact The NRC Clearance Officer is Brenda 2. Is the burden estimate accurate? (FONSI) is appropriate. Jo. Shelton, 301–415–7233. 3. Is there a way to enhance the II. EA Summary Dated at Rockville, Maryland, this 15th day quality, utility, and clarity of the information to be collected? of May, 2003. The purpose of the proposed action is 4. How can the burden of the For the Nuclear Regulatory Commission. to allow for the release of the licensee’s information collection be minimized, Beth St. Mary, Westwood and Plainfield, New Jersey, including the use of automated Acting NRC Clearance Officer, Office of the facilities for unrestricted use. Teledyne Chief Information Officer. collection techniques or other forms of information technology? Brown Engineering, Inc. has been [FR Doc. 03–12848 Filed 5–21–03; 8:45 am] A copy of the draft supporting authorized by NRC since 1964 to use BILLING CODE 7590–01–P statement may be viewed free of charge radioactive materials for analytical at the NRC Public Document Room, One services, research and development, White Flint North, 11555 Rockville precious metals recovery, and other NUCLEAR REGULATORY similar purposes at these sites. On COMMISSION Pike, Room O–1 F23, Rockville, MD 20852. OMB clearance requests are February 7, 2003, Teledyne Brown Engineering, Inc. requested that NRC Agency Information Collection available at the NRC Worldwide Web release the facilities for unrestricted use. Activities: Proposed Collection; site: http://www.nrc.gov/public-involve/ Comment Request doc-comment/omb/index.html. The Teledyne Brown Engineering, Inc. has document will be available on the NRC conducted surveys of the facilities and AGENCY: U.S. Nuclear Regulatory home page site for 60 days after the determined that the facilities meet the Commission (NRC). signature date of this notice. license termination criteria in subpart E ACTION: Notice of pending NRC action to Comments and questions about the of 10 CFR part 20. submit an information collection information collection requirements III. Finding of No Significant Impact request to OMB and solicitation of may be directed to the NRC Clearance public comment. Officer, Brenda Jo. Shelton, U.S. Nuclear The NRC staff has evaluated Teledyne Regulatory Commission, T–5 C3, SUMMARY: The NRC is preparing a Brown Engineering’s request and the Washington, DC 20555–0001, by submittal to OMB for review of results of the surveys and has concluded telephone at 301–415–7233, or by continued approval of information that the completed action complies with collections under the provisions of the Internet electronic mail at 10 CFR part 20. The staff has prepared Paperwork Reduction Act of 1995 (44 [email protected]. the EA (summarized above) in support U.S.C. Chapter 35). Dated at Rockville, Maryland, this 15th day of the proposed license amendment to Information pertaining to the of May 2003. terminate the license and release the requirement to be submitted: For the Nuclear Regulatory Commission. facility for unrestricted use. On the basis 1. The title of the information Beth St. Mary, of the EA, NRC has concluded that the collection: NRC Form 398, ‘‘Personal Acting NRC Clearance Officer, Office of the environmental impacts from the Qualification Statement—Licensee’’. Chief Information Officer. proposed action are expected to be 2. Current OMB approval number: [FR Doc. 03–12849 Filed 5–21–03; 8:45 am] insignificant and has determined not to 3150–0090. BILLING CODE 7590–01–P prepare an environmental impact 3. How often the collection is statement for the proposed action. required: On occasion and every six IV. Further Information years (at renewal). NUCLEAR REGULATORY 4. Who is required or asked to report: COMMISSION Individuals requiring a license to The EA and the documents related to operate the controls at a nuclear reactor. [Docket Nos. 030–05219, 030–14482, and this proposed action, including the 5. The number of annual respondents: 070–00124] application for the license amendment 1,155. and supporting documentation, are 6. The number of hours needed Notice of Finding of No Significant available for inspection at NRC’s Public annually to complete the requirement or Impact and Availability of Electronic Reading Room at http:// request: 1,465 or approximately 1.3 Environmental Assessment for www.nrc.gov/reading-rm/adams.html hours per response (1,465 hours ÷ 1,155 License Amendment of Materials (ADAMS Accession No. ML031350057). applications (new, re-applications, License Nos. 29–00055–06, 29–00055– Any questions with respect to this renewals and waivers = 1,155) = 1.3 15, AND SNM–107 (Teledyne Brown action should be referred to Betsy hours per response). Engineering, Inc., Westwood, NJ) Ullrich, Nuclear Materials Safety Branch 7. Abstract: NRC Form 398 requests 2, Division of Nuclear Materials Safety, I. Introduction detailed information that should be Region I, 475 Allendale Road, King of submitted by a licensing applicant and The U.S. Nuclear Regulatory Prussia, Pennsylvania, 19406, telephone facility licensee when applying for a Commission (NRC) is considering (610) 337–5040, fax (610) 337–5269. new or renewal license to operate the issuing license amendments to Teledyne Dated at King of Prussia, Pennsylvania this controls at a nuclear reactor facility. Brown Engineering, Inc. for Materials 15th day of May, 2003. License Nos. 29–00055–06, 29–00055– This information, once collected, would For the Nuclear Regulatory Commission be used for licensing actions and for 15, and SNM–107, to authorize release generating reports on the Operator of its facilities in Westwood and John D. Kinneman, Licensing Program. Plainfield, New Jersey, for unrestricted Chief, Nuclear Materials Safety Branch 2, Submit, by July 21, 2003 comments use and has prepared an Environmental Division of Nuclear Materials Safety, Region that address the following questions: Assessment (EA) in support of this I. 1. Is the proposed collection of action in accordance with the [FR Doc. 03–12846 Filed 5–21–03; 8:45 am] information necessary for the NRC to requirements of 10 CFR part 51. Based BILLING CODE 7590–01–P
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SECURITIES AND EXCHANGE Commission for the protection of holding company under the Act, and its COMMISSION investors. The Commission, based on wholly owned subsidiary companies, the information submitted to it, will Fitchburg Gas and Electric Light Issuer Delisting; Notice of Application issue an order granting the application Company (‘‘Fitchburg’’), Unitil Energy To Withdraw From Listing and after the date mentioned above, unless Systems, Inc., Unitil Power Corp., Unitil Registration on the American Stock the Commission determines to order a Realty Corp., Unitil Resources, Inc. and Exchange LLC (Kadant Inc., Common hearing on the matter. Unitil Service Corp. (‘‘Unitil Service’’) Stock, $.01 Par Value) File No. 1–11406 For the Commission, by the Division of (the ‘‘Subsidiaries’’ or ‘‘Money Pool Participants’’ and together with Unitil May 16, 2003. Market Regulation, pursuant to delegated authority. 5 the ‘‘Applicants’’) have filed an Kadant Inc., a Delaware corporation application-declaration under sections (‘‘Issuer’’), has filed an application with Jonathan G. Katz, Secretary. 6, 7, 9(a), 10 and 12(b) of the Act and the Securities and Exchange rules 43 and 45 thereunder. Commission (‘‘Commission’’), pursuant [FR Doc. 03–12808 Filed 5–21–03; 8:45 am] By order dated June 9, 2000 (HCAR to section 12(d) of the Securities BILLING CODE 8010–01–P No. 27182), Applicants were authorized Exchange Act of 1934 (‘‘Act’’)1 and Rule to make unsecured short-term 12d2–2(d) thereunder,2 to withdraw its borrowings and to operate a system SECURITIES AND EXCHANGE Common Stock, $.01 par value money pool (‘‘Money Pool’’) through COMMISSION (‘‘Security’’), from listing and June 30, 2003. The Applicants now registration on the American Stock [Release No. 35–27679] request authority to make additional Exchange LLC (‘‘Amex’’ or ‘‘Exchange’’). short-term borrowings and extend the The Issuer stated in its application Filings Under the Public Utility Holding operation of the Money Pool through that it has met the requirements of Company Act of 1935, as Amended June 30, 2006 (‘‘Authorization Period’’). Amex Rule l8 by complying with all (‘‘Act’’) Unitil requests authorization for applicable laws in State of Delaware, in short-term borrowing on a revolving which it is incorporated, and with the May 16, 2003. basis from certain banks up to an Amex’s rules governing an issuer’s Notice is hereby given that the aggregate amount of $55,000,000 from voluntary withdrawal of a security from following filing(s) has/have been made time to time through the Authorization listing and registration. with the Commission pursuant to Period. The Board of Directors (‘‘Board’’) of provisions of the Act and rules In addition, Fitchburg requests the Issuer unanimously approved a promulgated under the Act. All authorization for short-term borrowings resolution on March 6, 2003 to interested persons are referred to the from the Money Pool, and direct withdraw the Issuer’s Security from application(s) and/or declaration(s) for borrowings from commercial banks, in listing on the Amex and to list the complete statements of the proposed an aggregate principal amount at any Security on the New York Stock transaction(s) summarized below. The one time outstanding not to exceed Exchange, Inc. (‘‘NYSE’’). The Board of application(s) and/or declaration(s) and $35,000,000 from time to time through the Issuer considered such action to be any amendment(s) is/are available for the Authorization Period. in the best interest of the Issuer and its public inspection through the Unitil believes that an increase to its stockholders. In addition, the Board Commission’s Branch of Public borrowing authority is beneficial states that the reasons for such change Reference. because it will allow the company to in listing include: (i) Increasing the Interested persons wishing to respond to increased working capital Company’s visibility in the global comment or request a hearing on the requirements as a result of commodity investment community; (ii) the prestige application(s) and/or declaration(s) volatility and restructuring charges, as associated with being a NYSE-listed should submit their views in writing by well as necessary facility system company; and (iii) avoiding the direct June 10, 2003, to the Secretary, improvements and growth. and indirect costs and the division of Securities and Exchange Commission, Unitil’s existing and proposed the market resulting from dual listing on Washington, DC 20549–0609, and serve borrowing arrangements will provide for the AMEX and the NYSE. a copy on the relevant applicant(s) and/ borrowings at (1) ‘‘base’’ or ‘‘prime’’ The Issuer’s application relates solely or declarant(s) at the address(es) rates publicly announced by a bank as to the withdrawal of the Security from specified below. Proof of service (by the rate charged on loans to its most listing on the Amex and from affidavit or, in the case of an attorney at creditworthy business firms; or (2) registration under section 12(b) of the law, by certificate) should be filed with ‘‘money market’’ rates (market-based Act 3 shall not affect its obligation to be the request. Any request for hearing rates that are generally lower than base registered under section 12(g) of the should identify specifically the issues of or prime rates, made available by banks Act.4 facts or law that are disputed. A person on an offering or ‘‘when available’’ Any interested person may, on or who so requests will be notified of any basis). In addition, borrowings may be before June 10, 2003, submit by letter to hearing, if ordered, and will receive a based on the daily federal funds rate. the Secretary of the Securities and copy of any notice or order issued in the Borrowings under the credit Exchange Commission, 450 Fifth Street, matter. After June 10, 2003, the arrangements will mature not more than NW, Washington, DC 20549–0609, facts application(s) and/or declaration(s), as nine months from the date of issue. In bearing upon whether the application filed or as amended, may be granted the future, the Company may choose to has been made in accordance with the and/or permitted to become effective. formalize its banking relationship with its banks through a syndicated credit rules of the Amex and what terms, if Unitil Corporation et al. (70–10120) any, should be imposed by the facility. The duration of any such Unitil Corporation (‘‘Unitil’’), 6 facility would not exceed 365 days. 1 15 U.S.C. 78l(d). Liberty Lane West, Hampton, New Unitil expects to use the proceeds 2 17 CFR 240.12d2–2(d). Hampshire, 03842–1270, a registered from the requested borrowings for (1) 3 15 U.S.C. 78l(b). loans or advances to subsidiaries 4 15 U.S.C. 78l(g). 5 17 CFR 200.30–3(a)(1). through the Money Pool; (2) payment of
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outstanding indebtedness; (3) short-term securities of the issuer that are rated are Commission learned that the transfer cash needs that may arise due to rated investment grade; and (iii) all agent was no longer in existence or had payment timing differences; and (4) outstanding securities of Unitil that are ceased doing business as a transfer other general corporate purposes. rated are rated investment grade. agent. Based on the facts it has, the Any of the proposed short-term For purposes of this condition, a Commission believes that each of the borrowings by Fitchburg from security will be considered rated transfer agents listed in the Appendix commercial banks will be under terms investment grade if it is rated are no longer in existence or have and conditions substantially similar to investment grade by at least one ceased doing business as a transfer those of the borrowing arrangements nationally recognized statistical rating agent. between Unitil and its commercial bank organization, as that term is used in lenders, described above. Fitchburg will paragraphs (c)(2)(vi)(E), (F) and (H) of Any transfer agent listed in the use the proceeds from these borrowings rule 15c3–1 under the 1934 Act. Appendix that believes its registration to meet working capital requirements, should not be cancelled must notify the For the Commission by the Division of provide interim financing for Investment Management, pursuant to Commission in writing prior to June 23, construction expenditures, and to meet delegated authority. 2003. Written notifications must be debt and preferred stock sinking fund J. Lynn Taylor, mailed to: Lori R. Bucci, Division of requirements. Assistant Secretary. Market Regulation, Securities and In connection with the continued use Exchange Commission, 450 Fifth Street, [FR Doc. 03–12809 Filed 5–21–03; 8:45 am] of the Money Pool by the Applicants NW., Washington, DC 20549–1001, or BILLING CODE 8010–01–M under the Cash Pooling and Loan be sent by facsimile to Lori R. Bucci at Agreement (‘‘Pooling Agreement’’) (202) 824–5049. among Unitil and the Money Pool Participants dated as of February 1, SECURITIES AND EXCHANGE For the Commission by the Division of 1985, as amended, Fitchburg requests COMMISSION Market Regulation, pursuant to delegated 2 authorization to make loans to the other [Release No. 34–47878] authority. Money Pool Participants and incur J. Lynn Taylor, borrowings from Unitil and the other Notice of Intention To Cancel Assistant Secretary. Money Pool Participants, and the Registrations of Certain Transfer Applicants request authorization to Agents APPENDIX make loans to Fitchburg, both through May 15, 2003. the Authorization Period. Under the Registration Pooling Agreement, Unitil and the Notice is given that the Securities and number Name Subsidiaries invest their surplus funds, Exchange Commission (‘‘Commission’’) and the Subsidiaries borrow funds, from intends to issue an order, pursuant to (84Ð5920) ...... The Axess Media Group, the money pool. Unitil Service section 17A(c)(4)(B) of the Securities LTD 1 administers the money pool on an ‘‘at Exchange Act of 1934 (Exchange Act), (84Ð5826) ...... Corey L. Lewis cost’’ basis. The purpose of the Money canceling the registrations of the (84Ð5847) ...... Financial Strategies, LLC Pool is to provide the Subsidiaries with transfer agents whose names appear in (84Ð1883) ...... ICOA Incorporated internal and external funds and to the attached Appendix. (84Ð5756) ...... IDM Corporation invest surplus funds of Unitil and the FOR FURTHER INFORMATION CONTACT: Jerry (84Ð5727) ...... Impact Administrative Serv- Subsidiaries in short-term money W. Carpenter, Assistant Director, or Lori ices, Inc. market instruments. The Applicants R. Bucci, Special Counsel, at 202/942– (84Ð1208) ...... MLH Depositary Inc state that the Money Pool provides the 4187, Division of Market Regulation, (84Ð5875) ...... NAVCAP Securities Inc. Subsidiaries with lower short-term Securities and Exchange Commission, (84Ð5647) ...... Penn Street Advisors, Inc. borrowing costs due to elimination of 450 Fifth Street, NW., Washington, DC (84Ð5834) ...... Reserve General Escrow Company banking fees; a mechanism to earn a 20549–1001. (84Ð682) ...... Swiss Chalet, Inc. higher return on interest from surplus Background (84Ð191) ...... Texaco Inc. funds that are loaned to other Section 17A(c)(4)(B) of the Exchange (84Ð986) ...... The Troy Investment Fund Subsidiaries; and decreased reliance on (84Ð1947) ...... Vermont Fund Advisors, Inc. external funding sources. Act provides that if the Commission finds that any transfer agent registered Applicants state that the authorization [FR Doc. 03–12807 Filed 5–21–03; 8:45 am] sought shall be conditioned on Unitil, with the Commission is no longer in Unitil Energy and Fitchburg existence or has ceased to do business BILLING CODE 8010–01–P maintaining a common equity (as as a transfer agent, the Commission reflected in the most recent 10–K or 10– shall by order cancel that transfer Q filed with the Commission under the agent’s registration. Accordingly, at any Securities Exchange Act of 1934, as time after June 23, 2003, the amended (‘‘1934 Act’’), adjusted to Commission intends to issue an order reflect changes in capitalization since canceling the registrations of any or all the balance sheet date therein) of at least of the transfer agents listed in the 30% of its consolidated capitalization Appendix. (common equity, preferred stock, long- The Commission has made efforts to term and short-term debt) during the locate and determine the status of each period of authorization. In addition, no of the transfer agents listed in the borrowings under bank credit facilities Appendix. In some cases, the may be made in reliance upon any order Commission was unable to locate the issued in this matter unless: (i) The debt transfer agent, and in other cases, the security to be issued, if rated, is rated investment grade; (ii) all outstanding 1 15 U.S.C. 78q–1(c)(4)(B). 2 17 CFR 200.30–3(a)(22).
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SECURITIES AND EXCHANGE subject to the supervision or control of on May 5, 2003. NASD seeks to delay COMMISSION any employee of a member’s investment implementation of these provisions for banking department, and will further these members while it finalizes a [Release No. 34–47876; File Nos. SR– require legal or compliance personnel to proposal to create a permanent NASD–2003–79; SR–NYSE–2003–17] intermediate certain communications exemption for firms that engage in Self-Regulatory Organizations; Notice between the research department and limited underwriting activity. The of Filing and Immediate Effectiveness either the investment banking purpose of the delayed of Proposed Rule Changes by the department or the company that is the implementation—and ultimately a National Association of Securities subject of a research report or permanent exemption—is to preserve Dealers, Inc. and the New York Stock recommendation (‘‘subject company’’). the role of certain smaller firms that often are the sole or primary source of Exchange, Inc. Relating to Establishing B. NYSE underwriting and research coverage for Effective Dates for Certain Provisions The NYSE is filing with the SEC a some smaller or regional companies. of NASD Rule 2711, Research Analysts proposed rule change that would On May 10, 2002, the Commission and Research Reports, and NYSE Rule establish July 30, 2003, or until such approved new NASD Rule 2711, which 472, Communications with the Public date as a permanent exemption is governs conflicts of interest when May 15, 2003. approved by the SEC and becomes research analysts recommend equity Pursuant to section 19(b)(1) of the effective, as the effective date for certain securities in research reports and during Securities Exchange Act of 1934 provisions of Rule 472 public appearances.6 The Commission (‘‘Act’’)1 and Rule 19b–4 thereunder,2 (‘‘Communications with the Public’’) for approved a staggered implementation notice is hereby given that on May 6, certain members and member period for the rule. Most provisions of 2003, the National Association of organizations. the rule became effective on July 9, 2002, including those that restrict Securities Dealers, Inc. (‘‘NASD’’), and II. Self-Regulatory Organizations’ supervision and control of research on May 9, 2003, the New York Stock Statements of the Purpose of, and analysts by the investment banking Exchange, Inc. (‘‘NYSE’’ or Statutory Basis for, the Proposed Rule department. The ‘‘gatekeeper’’ ‘‘Exchange’’), filed with the Securities Changes and Exchange Commission (‘‘SEC’’ or provisions, described below, became In their original rule filings with the ‘‘Commission’’) the proposed rule effective September 9, 2002. The Commission, the SROs included changes as described in Items I, II, and remaining provisions of the Rule statements concerning the purpose of, III below, which Items have been became effective on November 6, 2002. and basis for, the proposed rule changes prepared by the respective self- NASD Rule 2711(b) contains and discussed any comments they regulatory organizations (‘‘SROs’’). The provisions that generally restrict the received on the proposed rule changes. SROs have designated the proposed rule relationship between the research and The text of these statements may be changes as constituting stated policies, investment banking departments, examined at the places specified in Item practices, or interpretations with respect including ‘‘gatekeeper’’ provisions that IV below. The SROs have prepared to the meaning, administration, or require a legal or compliance person to summaries, set forth in sections A, B, enforcement of an existing rule series intermediate certain communications and C below, of the most significant under paragraph (f)(1) of Rule 19b–4 between the research and investment aspects of such statements. under the Act,3 which render the banking departments. NASD Rule proposals effective upon filing with the A. Self-Regulatory Organizations’ 2711(b)(1) prohibits a research analyst Commission. The Commission is Statement of the Purpose of, and from being under the control or publishing this notice to solicit Statutory Basis for, the Proposed Rule supervision of any employee of the comments on the proposed rule changes Changes investment banking department. NASD from interested persons. Rule 2711(b)(2) prohibits employees in 1. NASD’s Purpose the investment banking department I. Self-Regulatory Organizations’ NASD is filing the proposed rule from reviewing or approving any Statements of the Terms of Substance of change to establish July 30, 2003, or research report prior to publication. the Proposed Rule Changes until the date a superseding permanent NASD Rule 2711(b)(3) creates an A. NASD exemption is approved by the SEC and exception to (b)(2) to allow investment becomes effective, as the effective date banking personnel to review a research NASD is filing with the SEC a for NASD Rules 2711(b) and (c) for report prior to publication to verify the proposed rule change to establish July members that over the previous three factual information contained therein 30, 2003, or until a superseding years, on average per year, have and to screen for potential conflicts of permanent exemption is approved by participated in 10 or fewer investment interest. Any permissible written the SEC and becomes effective, as the banking transactions as manager or co- communications must be made through effective date for NASD Rules 2711(b) manager and generated $5 million or an authorized legal or compliance and (c) for members that over the less in gross investment banking official or copied to such official. Oral previous three years, on average, have revenues from those transactions. communications must be made through, participated in 10 or fewer investment Pursuant to the SEC’s approval of SR– or in the presence of, an authorized banking transactions as manager or co- NASD–2002–87 4 and SR–NASD–2002– legal or compliance official and must be manager and generated $5 million or 161 5, NASD Rules 2711(b) and (c), as documented. less in gross investment banking applied to this class of members, Similarly, NASD Rule 2711(c) revenues from those transactions. NASD otherwise would have gone into effect restricts communications between a Rules 2711(b) and (c), when effective, member and the subject company of a prohibit a research analyst from being 4 See Securities Exchange Act Release No. 46165 research report, except that a member (July 3, 2002), 67 FR 46555 (July 15, 2002). 1 15 U.S.C. 78s(b)(1). 5 See Securities Exchange Act Release No. 46949 6 See Securities Exchange Act Release No. 45908 2 17 CFR 240.19b–4. (December 4, 2002), 67 FR 76202 (December 11, (May 10, 2002), 67 FR 34968 (May 16, 2002) (‘‘May 3 17 CFR 240.19b–4(f)(1). 2002). 10th order’’).
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may submit sections of the research raising process and to ensure research revenues from those transactions report to the company to verify factual coverage for smaller or regional (hereinafter referred to as ‘‘small accuracy and may notify the subject companies. firms’’). company of a ratings change after the NASD believes that compliance with In the May 10th order, the ‘‘close of trading’’ on the business day both NASD Rules 2711(b) and (c) Commission approved amendments to preceding the announcement of the continues to pose financial and NYSE Rules 351 (‘‘Reporting ratings change. Submissions to the administrative challenges for certain Requirements’’) and 472, which place subject company may not include the smaller firms. As such, NASD believes prohibitions and/or restrictions on research summary, the rating or the it appropriate to extend the effective Investment Banking Department, price target, and a complete draft of the date of those provisions for members Research Department, and Subject report must be provided beforehand to that over the previous three years, on Company relationships and legal or compliance personnel. Finally, average per year, have participated in 10 communications and impose new any change to a rating or price target or fewer investment banking disclosure requirements on members after review by the subject company transactions as manager or co-manager and member organizations and their must first receive written authorization and generated $5 million or less in gross associated persons. At the same time, from legal or compliance. investment banking revenues from those the Commission also approved a As the Commission noted in the May transactions. NASD proposes to delay staggered implementation period for the 10th order, several commenters argued the effective date of NASD Rules rules. Most provisions of the rules that the gatekeeper provisions would 2711(b) and (c) until July 30, 2003, or became effective on July 9, 2002, impose significant costs, especially for until the date a superseding permanent including those that restrict supervision smaller firms that would have to hire exemption is approved by the SEC and and control of associated persons by the additional personnel. Commenters also becomes effective. investment banking department and noted that personnel often wear As a further condition for the delayed those that require disclosure of multiple hats in smaller firms, thereby implementation date, those firms that investment banking compensation causing a greater burden to comply with meet the eligibility requirements received from a subject company. The the restriction on supervision and outlined above would be required to ‘‘gatekeeper’’ provisions, described control by investment banking maintain records of communications below, became effective on September 9, personnel over research analysts. NASD that would otherwise be subject to the 2002. received similar comments in response gatekeeper provisions of NASD Rules On July 9, 2002, the Exchange filed, to Notice to Members 02–44, which 2711(b) and (c). for immediate effectiveness, SR–NYSE– sought comment on whether certain 9 2. NASD’s Statutory Basis 2002–23 that extended the effective members should be exempted from date to November 6, 2002 for NYSE Rule certain provisions of the Rule and what NASD believes that the proposed rule 472(b)(1), (2) and (3) (‘‘gatekeeper’’ criteria should be employed to fashion change is consistent with the provisions 8 provisions) for small firms. such an exemption. of section 15A(b)(6) of the Act, which On November 7, 2002, the Exchange NASD received 10 comments in requires, among other things, that filed, for immediate effectiveness, SR– response to the Notice to Members.7 NASD’s rules must be designed to NYSE–2002–60,10 which extended the Generally, the comments emphasized prevent fraudulent and manipulative delayed effective date of the gatekeeper the financial and administrative acts and practices, to promote just and provisions for small firms until May 5, burdens imposed by NASD Rule 2711 to equitable principles of trade, and, in 2003. implement the gatekeeper provisions general, to protect investors and the and to structure firms so that research public interest. NASD believes that this Small Firm Relief personnel are not subject to supervision proposed rule change would reduce or NYSE Rule 472 contains provisions by investment banking personnel. expose conflicts of interest and thereby that generally restrict the relationship Commenters argued that the conflicts significantly curtail the potential for between the research and investment addressed by NASD Rule 2711 are less fraudulent and manipulative acts. banking departments, including pronounced with respect to smaller NASD further believes that the proposed ‘‘gatekeeper’’ provisions that require a firms and that the burdens of rule change will provide investors with legal or compliance person to compliance could force firms to better and more reliable information intermediate certain communications discontinue their research business. with which to make investment between the research and investment In response to the comments, NASD decisions. banking departments. NYSE Rule has been developing a proposed 3. NYSE’s Purpose 472(b)(1) prohibits an associated person permanent exemption to preserve the (also referred to throughout this filing as role of smaller firms in the capital The Exchange is filing the proposed a ‘‘research analyst’’) from being under rule change to establish July 30, 2003, the control or supervision of any 7 Letter from David Amster, CRT Capital Group, or until such date as a permanent employee of the investment banking dated August 19, 2002; Letter from Peter V.B. exemption is approved by the SEC and department. Unger, Fulbright & Jaworski, LLP, dated August 30, becomes effective, as the effective date 2002; Letter from First Analysis Securities Corp., NYSE Rule 472(b)(1) also prohibits dated August 30, 2002; Letter from Scott Cleland for NYSE Rule 472(b)(1), (2) and (3), the investment banking department and John Eade, Investorside Research Association, subject to certain conditions, for from reviewing or approving any dated August 29, 2002; Letter from W. Gray Medlin, members and member organizations that research reports prior to distribution. The Carson Medlin Co., dated August 29, 2002; over the previous three years, on Letter from Cathryn Streeter, BioScience Securities, NYSE Rule 472(b)(2) creates an Inc., dated August 28, 2002; E-mail from James average per year, have participated in exception to the prohibition of (b)(1) to Nelson, Minnesota Valley Investments, dated July ten or fewer investment banking allow investment banking personnel to 31, 2002; E-mail from Joe B. Kercheville, services transactions as manager or co- review a research report prior to Kercheville & Company, dated August 28, 2002; E- manager and generated $5 million or mail from Ray Chin, DBS Vickers Securities (USA) Inc., dated July 29, 2002; Letter from Stuart J. less in gross investment banking 9 See Securities Exchange Act Release No. 46182 Kaswell, Securities Industry Association, dated (July 11, 2002), 67 FR 47013 (July 17, 2002). August 30, 2002. 8 15 U.S.C. 78o–3(b)(6). 10 See note 5 supra.
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publication to verify the accuracy of Exchange Act 11 which requires, among proposed rule changes between the information contained therein and to other things, that the rules of the Commission and any person, other than review for any potential conflicts of Exchange be designed to prevent those that may be withheld from the interest. Any permissible written fraudulent and manipulative acts and public in accordance with the communications must be made through practices, to promote just and equitable provisions of 5 U.S.C. 552, will be legal or compliance or copied to legal or principles of trade and in general to available for inspection and copying in compliance. Oral communications must protect investors and the public interest. the Commission’s Public Reference be made through, or in the presence of, Room. Copies of such filings will also be B. Self-Regulatory Organizations’ legal or compliance personnel and must available for inspection and copying at Statements on Burden on Competition be documented. the principal offices of the SROs. All Similarly, NYSE Rule 472(b)(3) The SROs do not believe that the submissions should refer to the file restricts communications between a proposed rule changes will result in any numbers SR–NASD–2003–79 and SR– member or member organization and the burden on competition that is not NYSE–2003–17 and should be subject company of a research report, necessary or appropriate in furtherance submitted by June 12, 2003. except that a member or member of the purposes of the Act, as amended. For the Commission, by the Division of organization may submit sections of the C. Self-Regulatory Organizations’ Market Regulation, pursuant to delegated research report to the subject company authority.15 to verify factual accuracy and may Statements on Comments on the Jill M. Peterson, notify the subject company of a ratings Proposed Rule Changes Received From change after the ‘‘close of trading’’ on Members, Participants, or Others Assistant Secretary. the business day preceding the The NASD and NYSE have not [FR Doc. 03–12873 Filed 5–21–03; 8:45 am] announcement of the ratings change. solicited or received written comments BILLING CODE 8010–01–P Submissions to the subject company on the proposed rule changes. may not include the research summary, the rating or the price target, and a III. Date of Effectiveness of the DEPARTMENT OF STATE complete draft of the research report Proposed Rule Changes and Timing for must be provided beforehand to legal or Commission Action [Public Notice 4369] compliance personnel. Finally, any The proposed rule changes have been Determination and Certification Under change to a rating or price target after filed by the SROs as stated policies, Section 40A of the Arms Export review by the subject company must practices, or interpretations with respect Control Act first receive written authorization from to the meaning, administration, or legal or compliance. enforcement of an existing rule series Pursuant to section 40A of the Arms As the Commission noted in the May under Rule 19b–4(f)(1) under the Act.12 Export Control Act (Pub. L. 90–629—22 10th order, several commenters argued Consequently, they have become U.S.C. 2771 et seq.), as added by section that the ‘‘gatekeeper’’ provisions would effective pursuant to section 19(b)(3)(A) 330 of the Antiterrorism and Effective impose significant costs, especially for of the Act 13 and Rule 19b–4(f)(1) Death Penalty Act of 1996 (Public Law smaller firms that may have to hire thereunder.14 104–132), and Executive Order 11958, additional personnel to comply with the At any time within 60 days of the as amended, I hereby determine and requirements. Commenters also noted filing of such proposed rule changes, the certify to the Congress that the following that personnel often wear multiple hats Commission may summarily abrogate countries are not cooperating fully with in smaller firms, thereby causing a such rule changes if it appears to the United States antiterrorism efforts: greater burden to comply with the Commission that such action is Cuba; restriction on supervision and control necessary or appropriate in the public Iran; by investment banking personnel over interest, for the protection of investors, Libya; research analysts. These comments or otherwise in furtherance of the North Korea; raised the prospect that the Rules might purposes of the Act. Sudan; force some firms out of the investment Syria. banking or research business and/or IV. Solicitation of Comments This determination and certification reduce important sources of capital and Interested persons are invited to research coverage for smaller shall be transmitted to the Congress and submit written data, views, and published in the Federal Register. companies. arguments concerning the foregoing Accordingly, the Exchange is including whether the proposed rule Dated: May 15, 2003. proposing to delay implementation of changes are consistent with the Act. Richard L. Armitage, NYSE Rules 472(b)(1), (2), and (3) until Persons making written submissions Deputy Secretary of State , Department of July 30, 2003, or until a permanent should file six copies thereof with the State. exemption is approved by the SEC and Secretary, Securities and Exchange [FR Doc. 03–12874 Filed 5–21–03; 8:45 am] becomes effective, for small firms. Commission, 450 Fifth Street, NW, BILLING CODE 4710–10–P Those members or member Washington, DC 20549–0609. Copies of organizations that meet the eligibility the submissions, all subsequent requirements outlined above for the amendments, all written statements TENNESSEE VALLEY AUTHORITY delayed implementation date would with respect to the proposed rule also be required to maintain records of changes that are filed with the Paperwork Reduction Act of 1995, As communications that would otherwise Commission, and all written Amended by Public Law 104–13; be subject to the gatekeeper provisions communications relating to the Proposed Collection; Comment of NYSE Rule 472(b). Request 11 4. NYSE’s Statutory Basis 15 U.S.C. 78f(b)(5). 12 17 CFR 240.19b–4(f)(1). AGENCY: Tennessee Valley Authority. The statutory basis for the proposed 13 15 U.S.C. 78s(b)(3)(A). rule change is section 6(b)(5) of the 14 17 CFR 240.19b–4(f)(1). 15 17 CFR 200.30–3(a)(12).
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ACTION: Proposed collection; comment DEPARTMENT OF TRANSPORTATION air transportation of persons, property, request. and mail between any point or points in Office of the Secretary the United States, via intermediate SUMMARY: The proposed information points, and any point or points in Iraq Aviation Proceedings, Agreements and beyond. Northwest also requests, collection described below will be Filed the Week Ending May 9, 2003 submitted to the Office of Management that the Department integrate this and Budget (OMB) for review, as The following agreements were filed certificate authority with all of its required by the Paperwork Reduction with the Department of Transportation existing certificate and exemption Act of 1995 (44 U.S.C. Chapter 35, as under the provisions of 49 U.S.C. authority to the extent consistent with amended). The Tennessee Valley sections 412 and 414. Answers may be U.S. bilateral agreements and DOT policy. Authority is soliciting public comments filed within 21 days after the filing of on this proposed collection as provided the application. Docket Number: OST–2003–15138. Docket Number: OST–2003–15109. Date Filed: May 7, 2003. by 5 CFR section 1320.8(d)(1). Requests Due Date for Answers, Conforming for information, including copies of the Date Filed: May 5, 2003. Parties: Members of the International Applications, or Motion to Modify information collection proposed and Scope: May 28, 2003. supporting documentation, should be Air Transport Association. Subject: Description: Application of Aviation directed to the Agency Clearance Concepts, Inc., pursuant to 49 U.S.C. Officer: Wilma H. McCauley, Tennessee PTC3 0644 dated 6 May 2003 r1–r5 section 41102 and subpart B, requesting Valley Authority, 1101 Market Street Mail Vote 299—Resolution 010n a certificate of public convenience and (EB 5B), Chattanooga, Tennessee 37402– Special Passenger Amending necessity to engage in foreign charter air 2801; (423) 751–2523. Resolution between Afghanistan transportation of persons, property, and and Pakistan mail. Comments should be sent to the Intended effective date: 15 May 2003 Agency Clearance Officer no later than Docket Number: OST–2003–15139. July 21, 2003. Dorothy Y. Beard, Date Filed: May 7, 2003. Chief, Docket Operations & Media Due Date for Answers, Conforming SUPPLEMENTARY INFORMATION: Management, Federal Register Liaison. Applications, or Motion to Modify Type of request: Regular submission, [FR Doc. 03–12814 Filed 5–21–03; 8:45 am] Scope: May 28, 2003. Description: Application of Aviation proposal to extend without revision a BILLING CODE 4910–62–P currently approved collection of Concepts, Inc., pursuant to 49 U.S.C. section 41102 and subpart B, requesting information (OMB control number a certificate of public convenience and 3316–0016). DEPARTMENT OF TRANSPORTATION necessity to engage in interstate charter Title of Information Collection: Office of the Secretary air transportation of persons, property, Farmer Questionnaire-Vicinity of and mail. Nuclear Power Plants. Notice of Applications for Certificates Dorothy Y. Beard, Frequency of Use: On occasion. of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Chief, Docket Operations & Media Type of Affected Public: Individuals Under Subpart B (Formerly Subpart Q) Management, Federal Register Liaison. or households, and farms. During the Week Ending May 9, 2003 [FR Doc. 03–12813 Filed 5–21–03; 8:45 am] Small Business or Organizations BILLING CODE 4910–62–P The following applications for Affected: No. certificates of public convenience and Federal Budget Functional Category necessity and foreign air carrier permits DEPARTMENT OF TRANSPORTATION Code: 271. were filed under subpart B (formerly Estimated Number of Annual subpart Q) of the Department of Federal Aviation Administration Responses: 300. Transportation’s procedural regulations (See 14 CFR 301.201 et. seq.). The due Notice of Intent To Prepare an Estimated Total Annual Burden date for answers, conforming Environmental Assessment and Hours: 150. applications, or motions to modify Conduct Scoping for Air Traffic Estimated Average Burden Hours Per scope are set forth below for each Procedural Changes Associate With Response: .5. application. Following the answer the Midwest Airspace Plan Need For and Use of Information: period DOT may process the application AGENCY: Federal Aviation This survey is used to locate, for by expedited procedures. Such Administration, DOT. monitoring purposes, rural residents, procedures may consist of the adoption ACTION: Notice of Intent to prepare an home gardens, and milk animals within of a show-cause order, a tentative order, Environmental Assessment (EA) and a five mile radius of a nuclear power or in appropriate cases a final order conduct scoping meetings. without further proceedings. plant. The monitoring program is a Docket Number: OST–2003–15130. SUMMARY: The Federal Aviation mandatory requirement of the Nuclear Date Filed: May 7, 2003. Administration (FAA), Central Region, Regulatory Commission set out in the Due Date for Answers, Conforming is issuing this notice to advise the technical specifications when the plants Applications, or Motion to Modify public, pursuant to the National were licensed. Scope: May 28, 2003. Environmental Policy Act of 1969, as Jacklyn J. Stephenson, Description: Application of Northwest amended, (NEPA) 42 U.S.C. 4332(2)(C) Senior Manager, Enterprise Operations, Airlines, Inc., pursuant to 49 U.S.C. that the FAA intends to prepare an EA Information Services. sections 41101 and 41102 and subpart for the proposed Midwest Airspace Plan [FR Doc. 03–12834 Filed 5–21–03; 8:45 am] B, requesting a certificate of public (MAP). While not required for an EA, convenience and necessity authorizing the FAA is issuing this Notice of Intent BILLING CODE 8120–08–P Northwest to provide scheduled foreign to facilitate public involvement. This
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EA will assess the potential constructed at the Lambert-St. Louis recorder or written form throughout the environmental impacts resulting from International Airport. duration of the meeting. proposed modifications to air traffic As part of the airspace redesign effort, Scoping Meeting dates and locations routings in the metropolitan St. Louis, the FAA will conduct detailed analyses, are: Missouri and surrounding areas. which will be used to evaluate the Airports in this area include Lambert-St. potential environmental impacts in the —June 11, 2003—Collinsville, IL Louis International Airport, Spirit of St. study area. During scoping, and upon Holiday Inn Louis Airport, St. Louis Downtown publication of a draft EA and a final EA, —June 17, 2003—Kirkwood, MO Airport, St. Louis Regional Airport, the FAA will be contacting and Holiday Inn Scott Air Force Base/Mid-America coordinating with federal, state, and Airport, as well as other smaller general local agencies, as well as the public, to —June 18, 2003—St. Peters, MO City aviation use airports. All reasonable obtain comments and suggestions Hall alternatives will be considered regarding the EA for the proposed —June 19, 2003—Alton, IL Holiday Inn including a no action alternative/option. project. The EA will assess impacts and In meeting with NEPA coordination reasonable alternatives including a no FOR FURTHER INFORMATION CONTACT: requirements, the FAA has scheduled action alternative, pursuant to NEPA; Donna O’Neill, Airspace Branch, ACE– one meeting that will be dedicated 520, Air Traffic Division, Federal FAA Order 1050.1, Policies and primarily to federal, state and local Aviation Administration, 901 E. Locust, Procedures for Assessing Environmental agency staff, and Native American Kansas City, MO 64106; telephone: Impacts; DOT Order 5610.1, Procedures (816) 329–2560. for Considering Environmental Impacts; governments. This meeting is scheduled on June 11 from 1 to 3 p.m. at the SUPPLEMENTARY INFORMATION: The FAA and the President’s Council on Sheraton St. Louis City Center Hotel, St. issued its Final Environmental Impact Environmental Quality (CEQ) Louis, MO. Although this meeting will Statement (FEIS) on W–1–W, a new Regulations implementing the staggered parallel runway at St. Louis- provisions of NEPA, 40 CFR Parts 1500– be held primarily for the benefit of Lambert International Airport on 1508, and other appropriate Agency federal, tribal, state and local agency December 19, 1997. The subsequent guidance. staff, it will also be open to the public. Record of Decision (ROD) on Public Scoping Process: While not The scoping period begins with this Improvements to Lambert-St. Louis required for an EA, the FAA will use the announcement. To ensure that all issues International Airport, dated September scoping process as outlined in the are identified, the FAA is requesting 30, 1998 directed that action be taken to Council on Environmental Quality comments and suggestions on the develop air traffic control and airspace (CEQ) Regulations and guidelines to project scope from all interested federal, management procedures to effect the facilitate public involvement. state and local agencies and other safe and efficient movement of air traffic Concerned individuals and agencies are interested parties. In furtherance of this to and from the proposed new runway, invited to express their views either in effort, the FAA has established an writing or by providing oral comments including the development of a system Internet Web site that can be accessed at a scoping meeting. The purpose of the for the routing of arriving and departing at: http://www.faa.gov/ats/central/ scoping process is: (1) To provide a traffic and the design, establishment, enviro/map.html. Additional description of the proposed action, (2) and publication of standardized flight information about the Midwest Airspace operating procedures including to provide an early and open process to Plan, including the scoping meeting instrument approach procedures and determine the scope of issues to be schedule and meeting locations can be standard instrument departure addressed and to identify potentially found at this internet site. Additionally, procedures. significant issues or impacts related to The FAA’s Midwest Airspace Plan the proposed action that should be the FAA will be maintaining the examines alternative ways to modify air analyzed in the EA, (3) to identify other following telephone number for general traffic routes and procedures to enhance coordination and any permit information: 816–329–2560. safety and improve operational requirements associated with the Dates: The FAA will accept formal efficiency in the St. Louis airspace proposed action, (4) to identify and scoping comments through July 18, environment. The Midwest Airspace eliminate from detailed study those 2003. Written comments should be Plan encompasses a geographic area of issues that are not significant or those directed to the following address: approximately 75 miles around the that have been adequately addressed Federal Aviation Administration, 901 E. Lambert-St. Louis International Airport. during a prior environmental review Locust, Attn: ACE–520–MAP, Kansas Airports in the study area include: process. City, MO 64106. Comments will also be Lambert-St. Louis International Airport, The FAA has scheduled four public accepted electronically via http:// Spirit of St. Louis Airport, St. Louis scoping meetings. Each meeting will be www.faa.gov/ats/nar/central/enviro/ Downtown Airport, St. Louis Regional held from 7 p.m. to 9 p.m. at sites listed map.html. Airport, Scott Air Force Base/Mid- below. Each of the meetings will begin America Airport, as well as other with an overview of the project (7 p.m.– Issued in Kansas City, Missouri on May 6, smaller general aviation use airports. 7:15 p.m.), followed by an informal 2003. The FAA will examine methods that open house period (7:15 p.m.–8:30 p.m.) Paul J. Sheridan, will take advantage of new and and will conclude with a question and Acting Manager, Air Traffic Division, Central emerging ATC technologies, improved answer session (8:30 p.m.–9 p.m.). The Region. performance characteristics of modern open house portion of each public [FR Doc. 03–12819 Filed 5–21–03; 8:45 am] aircraft, as well as improvements in scoping meeting will include redesign BILLING CODE 4910–13–M navigation capabilities. The proposal displays and graphics and will provide will address the merits of alternative an opportunity for one-on-one airspace design scenarios that safely and interaction between representatives of efficiently use regional airspace and the FAA and the general public. utilize the additional runway being Comments will be received via court
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DEPARTMENT OF TRANSPORTATION than August 22, 2003. The following is (SEHSR) Corridor from Petersburg, a brief overview of the application. Virginia (Collier Yard) to Raleigh, North Federal Aviation Administration Level of the proposed PFC: $4.50. Carolina (Boylan Wye). Proposed charge-effective date: FOR FURTHER INFORMATION CONTACT: Mr. Notice of Intent To Rule on Application October 1, 2003. David Foster, Rail Environmental (03–03–C–00–HLN) To Impose and Use Proposed charge-expiration date: June Programs Manager, North Carolina the Revenue From a Passenger Facility 1, 2010. Department of Transportation Rail Charge (PFC) at Helena Regional Total requested for use approval: Division, 1553 Mail Service Center, Airport, Submitted by the Helena $2,350,897. Raleigh, NC, 27699–1553, telephone Regional Airport Authority, Helena Brief description of proposed projects: (919) 508–1917; or Mr. David Regional Airport, Helena, MT Disabled Passenger Access Lift Valenstein, Environmental Program AGENCY: Federal Aviation Acquisition; Southside Taxilane Manager, Federal Railroad Administration (FAA), DOT. Construction—Phase I; Southside Administration (FRA), 400 Seventh Taxilane Construction—Phase II; Loop ACTION: Notice of intent to rule on Street, SW., MS 20, Washington, DC Road and Parking Lot Improvements; application. 20590, telephone (202) 493–6368. Runway 9 perimeter Access Road; SUPPLEMENTARY INFORMATION: The FRA, SUMMARY: The FAA proposes to rule and Terminal Building Expansion and in cooperation with the Federal invites public comment on the Remodel; Snow Removal Equipment Highway Administration (FHWA), the application to impose and use PFC Acquisition; and Aircraft Rescue and North Carolina Department of revenue at Helena Regional Airport Fire Fighting Equipment Acquisition. Transportation (NCDOT), and the under the provisions of 49 U.S.C. 40117 Class or classes of air carriers that the Virginia Department of Rail and Public and Part 158 of the Federal Aviation public agency has requested not be Transportation (VDRPT), will prepare a Regulations (14 CFR 158). required to collect PFC’s: On-demand, Tier II Environmental Impact Statement Air Taxi/Commercial Operators (ATCO). DATES: Comments must be received on for a 138-mile portion of the SEHSR or before June 23, 2003. Any person may inspect the Corridor from Petersburg, Virginia at application in person at the FAA office Collier Yard to Raleigh, North Carolina ADDRESSES: Comments on this listed above under FOR FURTHER application may be mailed or delivered at the Boylan Wye. This study will INFORMATION CONTACT and at the FAA evaluate alternatives and environmental in triplicate to the FAA at the following Regional Airports Office located at: address: David S. Stelling, Manager; impacts within the preferred corridor Federal Aviation Administration, (Alternative A) described in the Tier I Helena Airports District Office, HLN– Northwest Mountain Region, Airports ADO; Federal Aviation Administration; Record of Decision for the SEHSR Division, ANM–600, 1601 Lind Avenue Corridor from Washington, DC to 2725 Skyway Drive, Suite 2, Helena, MT SW., Suite 315, Renton, WA 98055– 59602. Charlotte, North Carolina. The study 4056. corridor generally follows the Burgess In addition, one copy of any In addition, any person may, upon comments submitted to the FAA must Connector rail line from Collier Yard to request, inspect the application, notice Burgess, Virginia and the former be mailed or delivered to Ronald S. and other documents germane to the Mercer, Airport Director, at the Seaboard Air Line (S-line) from Burgess application in person at the Helena to Raleigh, North Carolina. following address: 2850 Skyway Drive, Regional Airport. Helena, MT 59602. Multiple options within the preferred Issued in Renton, Washington on May 13, corridor exist to connect the S-line from Air Carriers and foreign air carriers 2003. may submit copies of written comments Burgess to Main Street Station in David A. Field, previously provided at Helena Regional Richmond, Virginia, which is the Airport, under section 158.23 of part Manager, Planning, Programming and destination for intercity rail service in Capacity Branch, Northwest Mountain 158. this segment of the SEHSR Corridor. Region. VDRPT and the FRA propose to address FOR FURTHER INFORMATION CONTACT: [FR Doc. 03–12820 Filed 5–21–03; 8:45 am] options in this area in separate David S. Stelling, 406–449–5271, BILLING CODE 4910–13–M environmental documentation to be Airports District Office, 2725 Skyway prepared prior to construction of the Drive, Suite 2, Helena, MT 59602. The SEHSR between Richmond, Virginia application may be reviewed in person DEPARTMENT OF TRANSPORTATION and Raleigh, North Carolina. Different at this same location. routings are possible through Petersburg SUPPLEMENTARY INFORMATION: The FAA Federal Railroad Administration and capacity issues exist on the A-line proposes to rule and invites public Environmental Impact Statement: Rail particularly crossing the Appomattox comment on the application (03–03–C– Corridor—Petersburg, Virginia (Collier River would be considered in the 00–HLN) to impose and use PFC Yard) to Raleigh, North Carolina separate documentation. revenue at Helena Regional Airport, (Boylan Wye) This environmental process has four under the provisions of 49 U.S.C. 40117 basic goals: (1) Reiterate the purpose and part 158 of the Federal Aviation AGENCY: Federal Railroad and need as established in the Tier I EIS Regulations (14 CFR part 158). Administration (FRA), Department of for the Washington DC to Charlotte NC On May 13, 2003, the FAA Transportation (DOT). portion of the SEHSR corridor; (2) determined that the application to ACTION: Notice of intent to prepare an develop alternatives within the study impose and use the revenue from a PFC, Environmental Impact Statement. corridor; (3) conduct a detailed submitted by Helena Regional Airport, evaluation of environmental impacts for Helena, Montana, was substantially SUMMARY: The FRA is issuing this notice the alternatives; and (4) select a complete within the requirements of to advise the public that a Tier II preferred alternative. section 158.25 of part 158. The FAA Environmental Impact Statement (EIS) Scoping and Comments: FRA will approve or disapprove the will be prepared for a 138-mile portion encourages broad participation in the application, in whole or in part, no later of the Southeast High Speed Rail EIS process during scoping and
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subsequent review of the resulting Railways, Inc. (ISG Railways),1 upon Under 49 U.S.C. 10502(g), the Board environmental documents. Comments ISG Railways becoming a Class II rail may not use its exemption authority to and suggestions are invited from all carrier. relieve a rail carrier of its statutory interested agencies and the public at This transaction is related to a obligation to protect the interests of its large to insure the full range of issues simultaneously filed verified notice of employees. Because the transaction related to the proposed action and all exemption in STB Finance Docket No. involves at least one Class II and one or reasonable alternatives are addressed 34344, ISG Railways, Inc.—Acquisition more Class III rail carriers, the and all significant issues are identified. of Control Exemption—Assets of exemption is subject to labor protection Public agencies with jurisdiction are Keystone Railroad LLC d/b/a requirements of 49 U.S.C. 11326(b). requested to advise the FRA and Philadelphia, Bethlehem and New If the verified notice contains false or NCDOT of the applicable permit and England Railroad Company, misleading information, the exemption environmental review requirements of Conemaugh & Black Lick Railroad is void ab initio. Petitions to revoke the each agency, and the scope and content Company LLC, Steelton & Highspire exemption under 49 U.S.C. 10502(d) of the environmental information that is Railroad Company LLC, Lake Michigan may be filed at any time. The filing of germane to the agency’s statutory & Indiana Railroad Company LLC, a petition to revoke will not responsibilities in connection with the Brandywine Valley Railroad Company automatically stay the transaction. proposed improvements. Agency LLC, Upper Merion & Plymouth An original and 10 copies of all scoping meetings have been scheduled Railroad Company LLC, Patapsco & pleadings referring to STB Finance for June 17 and 18, 2003 at the following Back Rivers Railroad Company LLC, and Docket No. 34343, must be filed with locations: Cambria and Indiana Railroad, Inc., the Surface Transportation Board, 1925 • June 17, 10:30 am, VDRPT wherein ISG Railways seeks to acquire K Street, NW., Washington, DC 20423– Executive Conference Room, 1313 East the rail lines and substantially all other 0001. In addition, a copy of each Main Street, Suite 300, Richmond, VA. assets of Keystone Railroad LLC d/b/a pleading must be served on Kevin M. • June 18, 10:00 am, NCDOT Philadelphia, Bethlehem and New Sheys, Kirkpatrick & Lockhart LLP, 1800 Photogrammetry Conference Room, England Railroad Company, Conemaugh Massachusetts Avenue, NW.,—2nd Room 322–A, 1020 Birch Ridge Drive, & Black Lick Railroad Company LLC, Floor, Washington, DC 20036. Building B, Raleigh, NC. Steelton & Highspire Railroad Company Board decisions and notices are Letters describing the proposed action LLC, Lake Michigan & Indiana Railroad available on our Web site at www. and soliciting comments will be sent to Company LLC, Brandywine Valley stb.dot.gov. appropriate Federal, State, and local Railroad Company LLC, Upper Merion Decided: May 15, 2003. agencies in North Carolina and Virginia. & Plymouth Railroad Company LLC, By the Board, David M. Konschnik, An iterative public involvement/ Patapsco & Back Rivers Railroad Director, Office of Proceedings. information program will support the Company LLC, and Cambria and Vernon A. Williams, process. The program will involve Indiana Railroad, Inc., all Class III rail Secretary. newsletters, a project hotline, carrier subsidiaries of Bethlehem Steel [FR Doc. 03–12858 Filed 5–21–03; 8:45 am] informational workshops, small group Corporation. BILLING CODE 4915–00–P meetings, and other methods to solicit The proposed transaction was and incorporate public input throughout scheduled to be consummated on or the planning process. after April 29, 2003, the effective date of DEPARTMENT OF TRANSPORTATION Comments and questions concerning the exemption (7 days after the the proposed action should be directed exemption was filed). Surface Transportation Board ISG currently indirectly controls two to NCDOT or to the FRA at the [STB Finance Docket No. 34344] addresses provided above. Additional existing Class III railroads: ISG South information can be obtained by visiting Chicago & Indiana Harbor Railway ISG Railways, Inc.—Acquisition of the project Web site at http:// Company, operating in Illinois and Control Exemption—Assets of www.sehsr.org or calling the toll-free Indiana, and ISG Cleveland Works Keystone Railroad LLC d/b/a 2 project number 1–877–749–RAIL (7245). Railway Company, operating in Ohio. Philadelphia, Bethlehem and New ISG states that: (1) The rail lines to be England Railroad Company, Issued in Washington DC on May 15, 2003. acquired by ISG Railways will not Mark E. Yachmetz, Conemaugh & Black Lick Railroad connect with the rail lines of any Company LLC, Steelton & Highspire Associate Administrator for Railroad existing rail carrier in the ISG corporate Development. Railroad Company LLC, Lake Michigan family; (2) this control transaction is not & Indiana Railroad Company LLC, [FR Doc. 03–12812 Filed 5–21–03; 8:45 am] part of a series of anticipated Brandywine Valley Railroad Company BILLING CODE 4910–06–P transactions that would result in such a LLC, Upper Merion & Plymouth connection; and (3) this control Railroad Company LLC, Patapsco & transaction does not involve a Class I DEPARTMENT OF TRANSPORTATION Back Rivers Railroad Company LLC, carrier. Therefore, the transaction is and Cambria and Indiana Railroad, Inc. exempt from the prior approval of Surface Transportation Board requirements of 49 U.S.C. 11323. See 49 ISG Railways, Inc. (ISG Railways),1 a CFR 1180.2(d)(2). noncarrier, has filed a verified notice of [STB Finance Docket No. 34343] exemption to acquire, pursuant to an 1 ISG Railways, is a wholly owned subsidiary of asset purchase agreement, the rail lines International Steel Group Inc.— ISG Acquisition, Inc., which is a wholly owned and substantially all other assets of Continuance in Control Exemption— subsidiary of ISG. Keystone Railroad LLC d/b/a ISG Railways, Inc. 2 See International Steel Group, Inc.— Continuance in Control Exemption—ISG South Philadelphia, Bethlehem and New International Steel Group Inc. (ISG), a Chicago & Indiana Harbor Railway Company and ISG Cleveland Works Railway Company, STB 1 ISG Railways is a wholly owned subsidiary of noncarrier, has filed a verified notice of Finance Docket No. 34201 (STB served May 19, ISG Acquisition, Inc., which is a wholly owned exemption to continue in control of ISG 2002). subsidiary of International Steel Group Inc.
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England Railroad Company (Keystone), An original and 10 copies of all use, including interim trail use. Any Conemaugh & Black Lick Railroad pleadings, referring to STB Finance request for a public use condition under Company LLC (CBLR), Steelton & Docket No. 34344, must be filed with 49 CFR 1152.28 or for trail use/rail Highspire Railroad Company LLC the Surface Transportation Board, 1925 banking under 49 CFR 1152.29 will be (SHP), Lake Michigan & Indiana K Street, NW., Washington, DC 20423– due no later than June 11, 2003. Each Railroad Company LLC (LMIC), 0001. In addition, a copy of all trail use request must be accompanied Brandywine Valley Railroad Company pleadings must be served on Kevin M. by a $150 filing fee. See 49 CFR LLC (BVRY), Upper Merion & Plymouth Sheys, Kirkpatrick & Lockhart LLP, 1800 1002.2(f)(27). Railroad Company LLC (UMP), Patapsco Massachusetts Avenue, NW.,—2nd All filings in response to this notice & Back Rivers Railroad Company LLC Floor, Washington, DC 20036. must refer to STB Docket No. AB–603 (PBR), and Cambria and Indiana Board decisions and notices are (Sub-No. 1X) and must be sent to: (1) Railroad, Inc. (C&I), all Class III rail available on our Web site at Surface Transportation Board, 1925 K carrier subsidiaries of Bethlehem Steel www.stb.dot.gov. Street, NW., Washington DC 20423– Corporation (Bethlehem), operating in Decided: May 15, 2003. 0001; and (2) Karl Morell, Of Counsel, Ball Janik LLP, 1455 F Street, NW., Delaware, Indiana Maryland, and By the Board, David M. Konschnik, 2 Pennsylvania. Director, Office of Proceedings. Suite 225, Washington DC 20005. Replies to the petition are due on or This transaction is related to a Vernon A. Williams, before June 11, 2003. simultaneously filed verified notice of Secretary. exemption in STB Finance Docket No. Persons seeking further information [FR Doc. 03–12859 Filed 5–21–03; 8:45 am] 34343, International Steel Group Inc.— concerning abandonment procedures Continuance in Control Exemption— BILLING CODE 4915–00–P may contact the Board’s Office of Public ISG Railways, Inc., wherein Services at (202) 565–1592 or refer to the full abandonment and International Steel Group Inc. seeks to DEPARTMENT OF TRANSPORTATION continue in control of ISG Railways discontinuance regulations at 49 CFR part 1152. Questions concerning upon ISG Railways becoming a Class II Surface Transportation Board rail carrier pursuant to this proceeding. environmental issues may be directed to The proposed transaction was [STB Docket No. AB–603 (Sub–No. 1X)] the Board’s Section of Environmental scheduled to be consummated on or Analysis (SEA) at (202) 565–1552. V and S Railway, Inc.—Abandonment (Assistance for the hearing impaired is after April 29, 2003, the effective date of Exemption—in Barber County, KS the exemption (7days after the available through the Federal exemption was filed). On May 2, 2003, V and S Railway, Information Relay Service (FIRS) at 1– 800–877–8339.) ISG Railways states that: (i) The Inc. (VSR), filed with the Surface An environmental assessment (EA) (or railroads do not connect with each other Transportation Board (Board) a petition an environmental impact statement or any railroad in their corporate family; under 49 U.S.C. 10502 for exemption (EIS), if necessary), prepared by SEA, (ii) the acquisition of control is not part from the provisions of 49 U.S.C. 10903 will be served upon all parties of record of a series of anticipated transactions to abandon a 20-mile line of railroad and upon any agencies or other persons that would connect the railroads with extending from milepost 21.0, at who commented during its preparation. each other or any railroad in their Medicine Lodge, to the end of the line Other interested persons may contact corporate family; and (iii) the at milepost 41.0, at Sun City, in Barber SEA to obtain a copy of the EA (or EIS). transaction does not involve a Class I County, KS. The line traverses United EAs in these abandonment proceedings carrier. Therefore, the transaction is States Postal Service Zip Codes 67071, normally will be made available within exempt from the prior approval 67104, and 67143. 60 days after the filing of the petition. requirements of 49 U.S.C. 11323. See 49 The line does not contain Federally The deadline for submission of CFR 1180.2(d)(2). granted rights-of-way. Any comments on the EA will generally be Under 49 U.S.C. 10502(g), the Board documentation in VSR’s possession will be made available promptly to those within 30 days of its service. may not use its exemption authority to Board decisions and notices are requesting it. relieve a rail carrier of its statutory available on our Web site at http:// The interest of railroad employees obligation to protect the interests of its www.stb.dot.gov. employees. Section 11326(c), however, will be protected by the conditions set does not provide for labor protection for forth in Oregon Short Line R. Co.— Decided: May 16, 2003. transactions under sections 11324 and Abandonment—Goshen, 360 I.C.C. 91 By the Board, David M. Konschnik, 11325 that involve only Class III rail (1979). Director, Office of Proceedings. carriers. Because this transaction By issuing this notice, the Board is Vernon A. Williams, involves Class III rail carriers only, the instituting an exemption proceeding Secretary. Board, under the statute, may not pursuant to 49 U.S.C. 10502(b). A final [FR Doc. 03–12860 Filed 5–21–03; 8:45 am] impose labor protective conditions for decision will be issued by August 20, BILLING CODE 4915–00–P this transaction. 2003. If the notice contains false or Any offer of financial assistance misleading information, the exemption (OFA) under 49 CFR 1152.27(b)(2) will DEPARTMENT OF THE TREASURY is void ab initio. Petitions to revoke the be due no later than 10 days after exemption under 49 U.S.C. 10502(d) service of a decision granting the Departmental Offices may be filed at any time. The filing of petition for exemption. Each OFA must Privacy Act of 1974, Systems of a petition to revoke will not be accompanied by a $1,100 filing fee. Records automatically stay the transaction. See 49 CFR 1002.2(f)(25). All interested persons should be AGENCY: Departmental Offices, Treasury. aware that, following abandonment of 2 ISG Railways states that Bethlehem is operating ACTION: Notice of Revised Privacy Act rail service and salvage of the line, the under bankruptcy protection, but Keystone, CBLR, Systems of Records. SHP, LMIC, BVRY, UMP, PBR and C&I are not. line may be suitable for other public
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SUMMARY: In accordance with the IRS 60.006—Enrollee Charge approval for consensual telephone and Privacy Act of 1974, as amended, the Investigation Files, Inspection; consensual non-telephone monitoring, Treasury Inspector General for Tax IRS 60.007—Miscellaneous the subject’s prior criminal record, Administration (TIGTA) gives notice of Information File, Inspection; vehicle maintenance records, medical a revised Privacy Act system of records. IRS 60.009—Special Inquiry records, accident reports, insurance DATES: Comments must be received by Investigation Files, Inspection, and policies, police reports, and other June 23, 2003. The proposed new IRS 60.010—Tort Investigation Files, exhibits and documents collected system of records will become effective Inspection. during an investigation; (2) Status and This amendment reflects the transfer July 1, 2003, unless comments are disposition information concerning a of investigative responsibility to TIGTA. received which would result in a complaint or investigation including A notice of final rulemaking, is being contrary determination. prosecutive action and/or published separately in the Federal administrative action; (3) Complaints or ADDRESSES: Comments should be sent to Register to amend 31 CFR 1.36. The requests to investigate; (4) General case Lori Creswell, Assistant Chief Counsel, amendment reflects the consolidation of materials and documentation including, Treasury Inspector General for Tax the above systems of records and but not limited to, Chronological Case Administration, 1125 15th Street, Room transfers the responsibility for the Worksheets (CCW), fact sheets, agent 700A, Washington, DC 20005, 202–622– systems from the Internal Revenue work papers, Record of Disclosure 4068. Comments will be made available Service (IRS) to the Departmental forms, and other case management for inspection upon written request. Offices (DO). The exemptions claimed documentation; (5) Subpoenas and FOR FURTHER INFORMATION CONTACT: Lori for the systems of records were last evidence obtained in response to a Creswell, Assistant Chief Counsel, published in their entirety on November subpoena; (6) Evidence logs; (7) Pen Treasury Inspector General for Tax 21, 2000, at 65 FR 69865. registers; (8) Correspondence; (9) Administration, 1125 15th Street, Room The revised system of records report, Records of seized money and/or 700A, Washington, DC 20005, 202–622– required by the Privacy Act, 5 U.S.C. property; (10) Reports of laboratory 4068. 552a(r), has been submitted to the examination, photographs, and SUPPLEMENTARY INFORMATION: The Committee on Government Reform and evidentiary reports; (11) Digital image Treasury Inspector General for Tax Oversight of the House of files of physical evidence; (12) Administration (TIGTA) was established Representatives, the Committee on Documents generated for purposes of pursuant to the Internal Revenue Governmental Affairs of the Senate, and TIGTA’s undercover activities; (13) Service Restructuring and Reform Act of the Office of Management and Budget, Documents pertaining to the identity of 1998. TIGTA’s duties and operating pursuant to Appendix 1 to OMB confidential informants; and, (14) Other authority are set forth in the Inspector Circular A–130, Federal Agency documents collected and/or generated General Act of 1978, 5 U.S.C app. 3. Responsibilities for Maintaining by the Office of Investigations during TIGTA exercises all duties and Records About Individuals, dated the course of official duties. responsibilities of an Inspector General November 30, 2000. The revised system of records, AUTHORITY FOR MAINTENANCE OF THE SYSTEM: with respect to the Department and the 5 U.S.C. app. 3 and 5 U.S.C. 301. Secretary on all matters relating to the Treasury/DO .311–TIGTA Office of Internal Revenue Service (IRS). TIGTA Investigations Files, is published in its PURPOSE(S): conducts, supervises, and coordinates entirety below. The purpose of this system of records audits and investigations relating to the Dated: May 8, 2003. is to maintain information relevant to programs and operations of the IRS and W. Earl Wright, Jr., complaints received by TIGTA and related entities. TIGTA is Chief Management and Administrative collected as part of investigations organizationally placed within the Programs Officer. conducted by TIGTA’s Office of Department of the Treasury, but is Investigations. This system also independent of the Department and all Treasury/DO .311 includes investigative material other Treasury offices. SYSTEM NAME: compiled by the IRS’ Office of the Chief The powers and responsibilities of the TIGTA Office of Investigations Files. Inspector, which was previously Office of Chief Inspector for the Internal maintained in the following systems of Revenue Service, except for the SYSTEM LOCATION: records: Treasury/IRS 60.001–60.007 conducting of background checks and National Headquarters, Office of and 60.009–60.010. Investigations, 1125 15th Street, NW., the providing of physical security were ROUTINE USES OF RECORDS MAINTAINED IN THE transferred to TIGTA. The following Washington, DC 20005 and Field SYSTEM, INCLUDING CATEGORIES OF USERS AND systems of records maintained by the Division offices listed in Appendix A. THE PURPOSES OF SUCH USES: Chief Inspector’s Office of the Internal CATEGORIES OF INDIVIDUALS COVERED BY THE Disclosure of returns and return Revenue Service, published at 63 FR SYSTEM: information may be made only as 69905–69913, are being consolidated (1) The subjects or potential subjects provided by 26 U.S.C. 6103. Records and renamed as Treasury/DO .311– of investigations; (2) The subjects of other than returns and return TIGTA Office of Investigations Files: complaints received by TIGTA; (3) information may be used to: IRS 60.001—Assault and Threat Persons who have filed complaints with (1) Disclose pertinent information to Investigation Files, Inspection; TIGTA; (4) Confidential informants; and appropriate Federal, State, local, or IRS 60.002—Bribery Investigation (5) TIGTA Special Agents. foreign agencies, or other public Files, Inspection; authority responsible for investigating IRS 60.003—Conduct Investigation CATEGORIES OF RECORDS IN THE SYSTEM: or prosecuting the violations of, or for Files, Inspection; (1) Reports of investigations, which enforcing or implementing a statute, IRS 60.004—Disclosure Investigation may include, but are not limited to, rule, regulation, order, or license, where Files, Inspection; witness statements, affidavits, the disclosing agency becomes aware of IRS 60.005—Enrollee Applicant transcripts, police reports, photographs, a potential violation of civil or criminal Investigation Files, Inspection; documentation concerning requests and law or regulation;
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(2) Disclose information to a Federal, an individual or individuals who are in Administration, 1125 15th Street, NW., State, local, or other public authority danger; and Room 700A, Washington, DC 20005. maintaining civil, criminal, or other (11) Provide information to other This system of records may contain relevant enforcement information or Offices of Inspectors General, the records that are exempt from the other pertinent information, which has President’s Council on Integrity and notification, access, and contesting requested information relevant to or Efficiency, and the Department of records requirements pursuant to the necessary to the requesting agency’s, Justice, in connection with their review provisions of 5 U.S.C. 552a(j)(2) and bureau’s, or authority’s hiring or of TIGTA’s exercise of statutory law (k)(2). retention of an individual, or issuance enforcement authority, pursuant to RECORD ACCESS PROCEDURES: of a security clearance, license, contract, Section 6(e) of the Inspector General Act grant, or other benefit; of 1978, as amended, 5 U.S.C.A. See ‘‘Notification Procedures’’ above. (3) Disclose information in a Appendix 3. CONTESTING RECORD PROCEDURES: proceeding before a court, adjudicative POLICIES AND PRACTICES FOR STORING, See ‘‘Notification Procedures’’ above. body, or other administrative body RETRIEVING, ACCESSING, RETAINING, AND before which TIGTA is authorized to DISPENSING OF RECORDS IN THE SYSTEM: RECORD SOURCE CATEGORIES: appear when (a) the agency, or (b) any Some records contained within this STORAGE: employee of the agency in his or her system of records are exempt from the official capacity, or (c) any employee of Paper records and electronic media. requirement that the record source the agency in his or her individual RETRIEVABILITY: categories be disclosed pursuant to the capacity where the Department of By name, Social Security Number, provisions of 5 U.S.C. 552a(j)(2) and Justice or the agency has agreed to and/or case number. (k)(2). Non-exempt record source represent the employee, or (d) the categories include the following: United States, when the agency SAFEGUARDS: Department of the Treasury personnel determines that litigation is likely to The records are accessible to TIGTA and records, complainants, witnesses, affect the agency, is a party to litigation personnel, all of whom have been the governmental agencies, tax returns and or has an interest in such litigation, and subject of background investigations, on related documents, subjects of the use of such records by the agency is a need-to-know basis. Disclosure of investigations, persons acquainted with deemed to be relevant and necessary to information through remote terminals is the individual under investigation, third the litigation or administrative restricted through the use of passwords party witnesses, Notices of Federal Tax proceeding and not otherwise and sign-on protocols, which are Liens, court documents, property privileged; periodically changed; these terminals records, newspapers or periodicals, (4) Disclose information to a court, are accessible only to authorized financial institutions and other business magistrate or administrative tribunal in persons. Paper records are maintained records, medical records, and insurance the course of presenting evidence, in locked facilities and/or cabinets with companies. including disclosures to opposing restricted access. counsel or witness in the course of civil EXEMPTIONS CLAIMED FOR THE SYSTEM: discovery, litigation, or settlement RETENTION AND DISPOSAL: Some records contained within this negotiations or in connection with Some of the records in this system are system of records are exempt from 5 criminal law proceedings or in response maintained and disposed of in U.S.C. 552a (c)(3), (c)(4), (d)(1), (d)(2), to a subpoena where arguably relevant accordance with a record disposition (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), to a proceeding; schedule approved by the National (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (5) Disclose information to the Archives and Records Administration. (f), and (g) of the Privacy Act pursuant Department of Justice for the purpose of TIGTA is in the process of requesting to 5 U.S.C. 552a (j)(2) and (k)(2). approval of new records schedules litigating an action or seeking legal Appendix A advice; concerning all records in this system of (6) Provide information to third records. Records not currently covered Office of Investigations, TIGTA parties during the course of an by an approved record retention Field Division SAC Offices investigation to the extent necessary to schedule will not be destroyed until TIGTA receives approval from the Treasury IG for Tax Administration, 401 obtain information pertinent to the West Peachtree St., Atlanta, GA 30365 investigation; National Archives and Records Treasury IG for Tax Administration, 550 (7) Provide information to a Administration. Main Street, Cincinnati, OH 45202 congressional office in response to an SYSTEM MANAGER(S) AND ADDRESS: Treasury IG for Tax Administration, 200 W. inquiry made at the request of the Adams, Chicago, IL 60606 Deputy Inspector General for Treasury IG for Tax Administration, 4050 individual to whom the record pertains; Investigations, Office of Investigations, (8) Provide information to the news Alpha Rd., Dallas, TX 75244–4203 TIGTA, 1125 15th Street, NW., Room Treasury IG for Tax Administration, 600 17th media in accordance with guidelines 700A, Washington, DC 20005. St., Denver, CO 80202 contained in 28 CFR 50.2; Treasury IG for Tax Administration, 200 W. (9) Disclose information to the Equal NOTIFICATION PROCEDURE: Forsyth St., Jacksonville, FL 32202 Employment Opportunity Commission, Individuals seeking notification and Treasury IG for Tax Administration, 312 East Merit Systems Protection Board, access to any record contained in this First Street, Los Angeles, CA 90012 arbitrators, and other parties responsible system of records, or seeking to contest Treasury IG for Tax Administration, 201 for processing personnel actions or its content, may inquire in writing in Varick Street, New York, NY 10008 conducting administrative hearings or accordance with instructions appearing Treasury IG for Tax Administration, 600 Arch Street, Philadelphia, PA 19106 appeals, or if needed in the performance at 31 CFR part 1, subpart C, appendix Treasury IG for Tax Administration, 1301 of other authorized duties; A. Written inquiries should be Clay Street, Oakland, CA 94612 (10) In situations involving an addressed to the Office of Chief Treasury IG for Tax Administration, New imminent danger of death or physical Counsel, Disclosure Section, Treasury Carrollton Federal Bldg., 5000 Ellin Road, injury, disclose relevant information to Inspector General for Tax Lanham, MD 20706
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Treasury IG for Tax Administration, 1739–H or employee or matching contributions, DEPARTMENT OF THE TREASURY Brightseat Road, Landover, MD 20785 and employees who are entitled to make Treasury IG for Tax Administration, 8484 elections under these plans. Internal Revenue Service Georgia Ave., Silver Spring, MD 20910 Current Actions: There are no changes [FR Doc. 03–12795 Filed 5–21–03; 8:45 am] Proposed Collection; Comment to this existing regulation at this time. Request for Form 5735 and Schedule BILLING CODE 4810–04–P Type of Review: Extension of a P (Form 5735) currently approved collection. AGENCY: Internal Revenue Service (IRS), DEPARTMENT OF THE TREASURY Affected Public: Business or other for- Treasury. profit organizations, not-for-profit Internal Revenue Service ACTION: Notice and request for institutions, farms, and state, local, or comments. [EE–175–86] tribal governments. SUMMARY: The Department of the Proposed Collection; Comment Estimated Number of Respondents: 355,500. Treasury, as part of its continuing effort Request for Regulation Project to reduce paperwork and respondent Estimated Time Per Respondent: 3 burden, invites the general public and AGENCY: Internal Revenue Service (IRS), hours. Treasury. other Federal agencies to take this Estimated Total Annual Burden opportunity to comment on proposed ACTION: Notice and request for and/or continuing information comments. Hours: 1,060,000. The following paragraph applies to all collections, as required by the Paperwork Reduction Act of 1995, SUMMARY: The Department of the of the collections of information covered Public Law 104–13 (44 U.S.C. Treasury, as part of its continuing effort by this notice: to reduce paperwork and respondent 3506(c)(2)(A)). Currently, the IRS is burden, invites the general public and An agency may not conduct or soliciting comments concerning Form other Federal agencies to take this sponsor, and a person is not required to 5735, Possessions Corporation Tax opportunity to comment on proposed respond to, a collection of information Credit (Under Sections 936 and 30A), and/or continuing information unless the collection of information and Schedule P (Form 5735), Allocation collections, as required by the displays a valid OMB control number. of Income and Expenses Under Section Paperwork Reduction Act of 1995, Books or records relating to a collection 936(h)(5). Public Law 104–13 (44 U.S.C. of information must be retained as long DATES: Written comments should be 3506(c)(2)(A)). Currently, the IRS is as their contents may become material received on or before July 21, 2003 to be soliciting comments concerning an in the administration of any internal assured of consideration. existing final regulation, EE–175–86, revenue law. Generally, tax returns and ADDRESSES: Direct all written comments (TD 8357), Certain Cash or Deferred tax return information are confidential, to Glenn Kirkland, Internal Revenue Arrangements and Employee and as required by 26 U.S.C. 6103. Service, room 6411, 1111 Constitution Matching Contributions Under Request for Comments: Comments Avenue NW., Washington, DC 20224. Employee Plans (§§ 1.401(k)–1, submitted in response to this notice will FOR FURTHER INFORMATION CONTACT: 1.401(m)–1, and 54.4979–1). be summarized and/or included in the Requests for additional information or DATES: Written comments should be request for OMB approval. All copies of the form and instructions received on or before July 21, 2003 to be comments will become a matter of should be directed to Allan Hopkins at assured of consideration. public record. Internal Revenue Service, Room 6407, ADDRESSES: Direct all written comments 1111 Constitution Avenue NW., Comments are invited on: (a) Whether to Glenn P. Kirkland, Internal Revenue Washington, DC 20224, or at (202) 622– the collection of information is Service, room 6411, 1111 Constitution 6665, or through the Internet at Avenue NW., Washington, DC 20224. necessary for the proper performance of [email protected]. the functions of the agency, including FOR FURTHER INFORMATION CONTACT: whether the information shall have SUPPLEMENTARY INFORMATION: Requests for additional information or practical utility; (b) the accuracy of the Title: Possessions Corporation Tax copies of regulations should be directed agency’s estimate of the burden of the Credit (Under sections 936 and 30A), to Carol Savage at Internal Revenue and Allocation of Income and Expenses Service, room 6407, 1111 Constitution collection of information; (c) ways to enhance the quality, utility, and clarity Under Section 936(h)(5). Avenue NW., Washington, DC 20224, or OMB Number: 1545–0217. of the information to be collected; (d) at (202) 622–3945, or through the Form Number: Form 5735 and ways to minimize the burden of the Internet at [email protected]. Schedule P (Form 5735). collection of information on SUPPLEMENTARY INFORMATION: Abstract: Form 5735 is used to Title: Certain Cash or Deferred respondents, including through the use compute the possessions corporation tax Arrangements and Employee and of automated collection techniques or credit under sections 936 and 30A. Matching Contributions Under other forms of information technology; Schedule P (Form 5735) is used by Employee Plans. and (e) estimates of capital or start-up corporations that elect to share their OMB Number: 1545–1069. costs and costs of operation, income or expenses with their affiliates. Regulation Project Number: EE–175– maintenance, and purchase of services The forms provide the IRS with 86. to provide information. information to determine if the Abstract: This regulation provide the Approved: May 16, 2003. corporations have computed the tax public with the guidance needed to Glenn P. Kirkland, credit and the cost-sharing or profit-split comply with sections 40(k), 401(m), and method of allocating income and 4979 of the Internal Revenue Code. The IRS Reports Clearance Officer. expenses. regulation affects sponsors of plans that [FR Doc. 03–12778 Filed 5–21–03; 8:45 am] Current Actions: There are no changes contain cash or deferred arrangements BILLING CODE 4830–01–P being made to the forms at this time.
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Type of Review: Extension of a SUMMARY: The Department of the Request for Comments: Comments currently approved collection. Treasury, as part of its continuing effort submitted in response to this notice will Affected Public: Business or other for- to reduce paperwork and respondent be summarized and/or included in the profit organizations. burden, invites the general public and request for OMB approval. All Estimated Number of Respondents: other Federal agencies to take this comments will become a matter of 1,371. opportunity to comment on proposed public record. Comments are invited on: Estimated Time Per Respondent: 24 and/or continuing information (a) Whether the collection of hrs., 53 min. collections, as required by the information is necessary for the proper Estimated Total Annual Burden Paperwork Reduction Act of 1995, Pub. performance of the functions of the Hours: 34,126. L. 104–13 (44 U.S.C. 3506(c)(2)(A)). agency, including whether the The following paragraph applies to all Currently, the IRS is soliciting information shall have practical utility; of the collections of information covered comments concerning Form 2438, (b) the accuracy of the agency’s estimate by this notice: Undistributed Capital Gains Tax Return. of the burden of the collection of information; (c) ways to enhance the An agency may not conduct or DATES: Written comments should be quality, utility, and clarity of the sponsor, and a person is not required to received on or before July 21, 2003 to be information to be collected; (d) ways to respond to, a collection of information assured of consideration. minimize the burden of the collection of unless the collection of information ADDRESSES: Direct all written comments information on respondents, including displays a valid OMB control number. to Glenn Kirkland, Internal Revenue through the use of automated collection Books or records relating to a collection Service, room 6411, 1111 Constitution techniques or other forms of information of information must be retained as long Avenue NW., Washington, DC 20224. technology; and (e) estimates of capital as their contents may become material FOR FURTHER INFORMATION CONTACT: or start-up costs and costs of operation, in the administration of any internal Requests for additional information or maintenance, and purchase of services revenue law. Generally, tax returns and copies of the form and instructions to provide information. tax return information are confidential, should be directed to Allan Hopkins, as required by 26 U.S.C. 6103. Internal Revenue Service, room 6407, Approved: May 15, 2003. Request for Comments: Comments 1111 Constitution Avenue NW., Glenn Kirkland, submitted in response to this notice will Washington, DC 20224, or at (202) 622– IRS Reports Clearance Officer. be summarized and/or included in the 6665, or through the Internet at [FR Doc. 03–12780 Filed 5–21–03; 8:45 am] request for OMB approval. All [email protected]. BILLING CODE 4830–01–P comments will become a matter of SUPPLEMENTARY INFORMATION: public record. Comments are invited on: Title: Undistributed Capital Gains Tax (a) Whether the collection of Return. DEPARTMENT OF THE TREASURY information is necessary for the proper OMB Number: 1545–0144. performance of the functions of the Form Number: 2438. Internal Revenue Service agency, including whether the Abstract: Form 2438 is used by information shall have practical utility; regulated investment companies to [LR–185–84] (b) the accuracy of the agency’s estimate compute capital gains tax on of the burden of the collection of undistributed capital gains designated Proposed Collection; Comment information; (c) ways to enhance the under Internal Revenue Code section Request for Regulation Project quality, utility, and clarity of the 852(b)(3)(D). The IRS uses this AGENCY: Internal Revenue Service (IRS), information to be collected; (d) ways to information to determine the correct tax. Treasury. minimize the burden of the collection of Current Actions: There are no changes ACTION: Notice and request for information on respondents, including being made to the form at this time. comments. through the use of automated collection Type of Review: Extension of a techniques or other forms of information currently approved collection. SUMMARY: The Department of the technology; and (e) estimates of capital Affected Public: Business or other for- Treasury, as part of its continuing effort or start-up costs and costs of operation, profit organizations. to reduce paperwork and respondent maintenance, and purchase of services Estimated Number of Respondents: burden, invites the general public and to provide information. 100. other Federal agencies to take this Estimated Time Per Respondent: 8 Approved: May 15, 2003. opportunity to comment on proposed hrs., 35 mins. and/or continuing information Glenn Kirkland, Estimated Total Annual Burden collections, as required by the IRS Reports Clearance Officer. Hours: 859. Paperwork Reduction Act of 1995, [FR Doc. 03–12779 Filed 5–21–03; 8:45 am] The following paragraph applies to all Public Law 104–13 (44 U.S.C. BILLING CODE 4830–01–P of the collections of information covered 3506(c)(2)(A)). Currently, the IRS is by this notice: An agency may not conduct or soliciting comments concerning an DEPARTMENT OF THE TREASURY sponsor, and a person is not required to existing final regulation, LR–185–84 (TD respond to, a collection of information 8086), Election of $10 Million Internal Revenue Service unless the collection of information Limitation on Exempt Small Issues of displays a valid OMB control number. Industrial Development Bonds; Proposed Collection; Comment Books or records relating to a collection Supplemental Capital Expenditure Request for Form 2438 of information must be retained as long Statements (§ 1.103–10(b)(2)(vi)). DATES: AGENCY: Internal Revenue Service (IRS), as their contents may become material Written comments should be Treasury. in the administration of any internal received on or before July 21, 2003 to be revenue law. Generally, tax returns and assured of consideration. ACTION: Notice and request for tax return information are confidential, ADDRESSES: Direct all written comments comments. as required by 26 U.S.C. 6103. to Glenn Kirkland, Internal Revenue
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Service, room 6411, 1111 Constitution Current Actions: There is no change to be summarized and/or included in the Avenue NW., Washington, DC 20224. this existing regulation. request for OMB approval. All FOR FURTHER INFORMATION CONTACT: Type of Review: Extension of a comments will become a matter of Requests for additional information or currently approved collection. public record. Comments are invited on: copies of the information collection Affected Public: State, local or tribal (a) Whether the collection of should be directed to Allan Hopkins at governments. information is necessary for the proper Internal Revenue Service, room 6407, Estimated Number of Respondents: performance of the functions of the 1111 Constitution Avenue NW., 10,000. agency, including whether the Estimated Time Per Respondent: 6 Washington, DC 20224, or at (202) 622– information shall have practical utility; minutes. 6665, or through the Internet at (b) the accuracy of the agency’s estimate Estimated Total Annual Burden [email protected]. Hours: 1,000. of the burden of the collection of SUPPLEMENTARY INFORMATION: The following paragraph applies to all information; (c) ways to enhance the Title: Election of $10 Million of the collections of information covered quality, utility, and clarity of the Limitation on Exempt Small Issues of by this notice: information to be collected; (d) ways to Industrial Development Bonds; An agency may not conduct or minimize the burden of the collection of Supplemental Capital Expenditure sponsor, and a person is not required to information on respondents, including Statements. respond to, a collection of information through the use of automated collection OMB Number: 1545–0940. unless the collection of information techniques or other forms of information Regulation Project Number: LR–185– displays a valid OMB control number. technology; and (e) estimates of capital 84. Books or records relating to a collection or start-up costs and costs of operation, Abstract: This regulation liberalizes of information must be retained as long maintenance, and purchase of services the procedure by which a state or local as their contents may become material to provide information. government issuer of an exempt small in the administration of any internal Approved: May 15, 2003. issue of tax-exempt bonds elects the $10 revenue law. Generally, tax returns and Glenn Kirkland, million limitation upon the size of such tax return information are confidential, issue and deletes the requirement to file as required by 26 U.S.C. 6103. IRS Reports Clearance Officer. certain supplemental capital Request for Comments: Comments [FR Doc. 03–12781 Filed 5–21–03; 8:45 am] expenditure statements. submitted in response to this notice will BILLING CODE 4830–01–P
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Corrections Federal Register Vol. 68, No. 99
Thursday, May 22, 2003
This section of the FEDERAL REGISTER DEPARTMENT OF HOMELAND Wednesday, May 14, 2003, make the contains editorial corrections of previously SECURITY following correction: published Presidential, Rule, Proposed Rule, and Notice documents. These corrections are Coast Guard § 72.05–10 [Corrected] prepared by the Office of the Federal On page 25859, in § 72.05–10, in the Register. Agency prepared corrections are 33 CFR Part 72 third column, in the Note, in the fourth issued as signed documents and appear in and fifth lines, ‘‘http:// the appropriate document categories [USCG–2001–10714] elsewhere in the issue. pollux.nss.nima.mil/pubs/USCGLL/ RIN 1625–AA34 (Formerly RIN 2115–AG25) pubsljluscgllllist’’ should read, ‘‘http://pollux.nss.nima.mil/pubs/ Update of Rules on Aids to Navigation USCGLL/pubsljluscgllllist.html’’. Affecting Buoys, Sound Signals, [FR Doc. C3–11987 Filed 5–21–03; 8:45 am] International Rules at Sea, BILLING CODE 1505–01–D Communications Procedures, and Large Navigational Buoys Correction In proposed rule document 03–11987 beginning on page 25855 in the issue of
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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 Five Plant Species From the Northwestern Hawaiian Islands, Hawaii; Final Rule
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DEPARTMENT OF THE INTERIOR Sesbania tomentosa. A total of during normal business hours at U.S. approximately 493 hectares (1,219 Fish and Wildlife Service, Pacific Fish and Wildlife Service acres) of land on Nihoa, Necker, and Islands Office, 300 Ala Moana Blvd., Laysan Islands fall within the Room 3–122, P.O. Box 50088, Honolulu, 50 CFR Part 17 boundaries of the seven critical habitat HI 96850–0001. RIN 1018–AH09 units designated for the five species. FOR FURTHER INFORMATION CONTACT: Paul This critical habitat designation requires Henson, Field Supervisor, Pacific Endangered and Threatened Wildlife the Service to consult under section 7 of Islands Office at the above address and Plants; Designation of Critical the Act with regard to actions carried (telephone 808/541–3441; facsimile Habitat for Five Plant Species From the out, funded, or authorized by a Federal 808/541–3470). Northwestern Hawaiian Islands, Hawaii agency. Section 4 of the Act requires us SUPPLEMENTARY INFORMATION: to consider economic and other relevant AGENCY: Fish and Wildlife Service, impacts when specifying any particular Background Interior. area as critical habitat. We solicited data In the List of Endangered and ACTION: Final rule. and comments from the public on all Threatened Plants (50 CFR 17.12(h)), aspects of the proposed rule, including SUMMARY: We, the U.S. Fish and there are six plant species that, at the data on economic and other impacts of Wildlife Service (Service), designate time of listing, were reported from the the designation. critical habitat pursuant to the Northwestern Hawaiian Islands (NWHI). Endangered Species Act of 1973, as DATES: This rule becomes effective on Amaranthus brownii, Pritchardia amended (Act), for five of six plant June 23, 2003. remota, and Schiedea verticillata are species known historically from the ADDRESSES: Comments and materials endemic to the NWHI, while Cenchrus Northwestern Hawaiian Islands. The received, as well as supporting agrimonioides, Mariscus pennatiformis, five species are Amaranthus brownii, documentation, used in the preparation and Sesbania tomentosa are reported Mariscus pennatiformis, Pritchardia of this final rule will be available for from several other Hawaiian islands in remota, Schiedea verticillata, and public inspection, by appointment, addition to the NWHI (see Table 1).
TABLE 1.—SUMMARY OF ISLAND DISTRIBUTION OF SIX SPECIES FROM THE NWHI
Island distribution Species NWHI, Kahoolawe, Kauai Oahu Molokai Lanai Maui Hawaii Niihau
Amaranthus brownii (no common name) ...... Nihoa (C) Cenchrus agrimonioides (kamanomano) ...... C ...... H C R Kure (H*), Laysan (H), Midway (H) Mariscus pennatiformis (no common name) .. H H ...... C R Laysan (C) Pritchardia remota (loulu) ...... Nihoa (C), Laysan(**) Schiedea verticillata (no common name) ...... Nihoa (C) Sesbania tomentosa (ohai) ...... C CCHCCNiihau (H), Kahoolawe (C), Necker (C), Nihoa (C) Key: C (Current)—occurrence last observed within the past 30 years. H (Historical)—occurrence not seen for more than 30 years. R (Reported)—reported from undocumented observations. * Cenchrus agrimonioides var. laysanensis was last observed 23 years ago. ** It has been suggested that Pritchardia remota was the species of Pritchardia once extant on Laysan; however, this is not known for certain. NWHI include Kure Atoll, Midway Atoll, and Laysan, Necker, Nihoa islands.
Although we considered designating The Northwestern Hawaiian Islands Laysan Island, Lisianski Island, Pearl critical habitat on the NWHI for each of The NWHI are a chain of islands that and Hermes Atoll, Midway Atoll, and the six plant species, for the reasons extend along a linear path for Kure Atoll (Figure 1). They are remnants described below, the final designation approximately 1,600 kilometers (km) of once larger islands that have slowly includes critical habitat for five of six (1,000 miles (mi)) in a northwestern eroded and subsided and that exist plant species. Species that also occur on direction from Nihoa Island to Kure today as small land masses or coral other islands may have critical habitat Atoll and include the following: Nihoa atolls covering the remnants of volcanic designated on other islands in previous Island, Necker Island, French Frigate islands (Department of Geography 1998; or subsequent rulemakings. Shoals, Gardner Pinnacles, Maro Reef, Service 1998).
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Nihoa rises approximately 274 meters Island was altered considerably in the 1986). This failed as a profitable (m) (900 feet (ft)) above sea level and past and today suffers from enormous business, and no attempt was made to has an area of approximately 69 hectares nonnative species problems (Elizabeth control the number of rabbits on the (ha) (171 acres (ac)). Its steep Flint, Service, pers. comm., 2000). island. The rabbits were finally topography and crater shape reveal its One of the six listed plants was eradicated from Laysan Island in the volcanic origin. Necker Island, less than historically known from Kure Atoll early 1920s, although not before the 92 m (300 ft) in elevation and 19 ha (46 (Cenchrus agrimonioides var. vegetation had been thoroughly ac) in area, consists of thin-layered, laysanensis), two were known from devastated. Since then, the vegetation of weathered lava flows. La Perouse Laysan (C. agrimonioides var. Laysan has recovered to a remarkable Pinnacles at French Frigate Shoals and laysanensis and Mariscus pennatiformis degree, although some species, like the ssp. bryanii), one from Midway (C. Gardner Pinnacles are the last exposed native palms (Pritchardia sp.) (lolou), agrimonioides var. laysanensis), four volcanic remnants in the archipelago. are no longer naturally extant on the French Frigate Shoals is a crescent- from Nihoa (Amaranthus brownii, Pritchardia remota, Schiedea island (Tomich 1986; E. Flint, pers. shaped atoll nearly 29 km (18 mi) comm., 2000). across. More than a dozen small sandy verticillata, and Sesbania tomentosa), islands dot the fringes of this atoll. Maro and one from Necker (Sesbania Midway Atoll was discovered and Reef is a largely submerged area marked tomentosa) (see Table 1 above). named Middlebrook Islands in 1859 by Nihoa (209 km (140 mi) from Niihau) by breakers and a few pieces of coral Captain Nick Brooks. The atoll was and Necker (an additional 290 km (180 that intermittently protrude above the taken into possession by the United mi) northwest of Nihoa) are the islands waterline. Laysan Island is States in 1867, and in 1903, President in the northwestern group that are Theodore Roosevelt placed the atoll approximately 405 ha (1,002 ac) in size closest to the main Hawaiian Islands. and fringed by a reef. In the center of the under the control of the U.S. Navy. In Both are small, residual fragments of 1935, Pan American World Airways set island is a 52 ha (129 ac) hypersaline volcanoes that formed approximately lagoon. Lisianski Island is 147 ha (364 up an airbase for the weekly Trans- 7.2 and 10.3 million years ago, Pacific Flying Clipper Seaplane service. ac) in size and bounded to the north by respectively (Service 1986). Although an extensive reef system. The central In 1941, the Japanese attacked Midway both of these islands were uninhabited Atoll on their return from the attack on lagoon once found on this island has at the time of their modern discovery in Pearl Harbor. In 1942, the United States filled with sand. Pearl and Hermes Reef, the late eighteenth century, there is an defeated the Japanese Fleet north of the an inundated atoll, includes nearly extensive heiau (indigenous place of 40,469 ha (100,000 ac) of submerged worship or shrine) complex on Necker, atoll, turning the tide of World War II reef and seven small sandy islets and agricultural terraces and other in the Pacific. In 1988, the atoll was totaling less than 34 ha (85 ac). Midway Hawaiian archaeological features can be added to the National Wildlife Refuge Atoll is approximately 8 km (5 mi) in found on Nihoa (Cleghorn 1984; (NWR) system, and in 1996, the diameter and includes three islands: Department of Geography 1998; Service jurisdiction of Midway Atoll was Sand, Eastern, and Spit. Both Sand and 1986). transferred from the U.S. Navy to the Eastern Islands have been highly altered In 1892, a guano mining business Department of the Interior (Service by man. Kure Atoll is the northernmost began operation on Laysan and 2000). Despite this evidence of human exposed land in the Hawaiian flourished until 1904. During this time, use, these islands continue to support archipelago. Two islands, Green and rabbits were introduced to Laysan for a an assemblage of endemic plants and Sand, are found on the southern edge of rabbit canning industry, and the rabbits animals not found elsewhere in the the atoll and are included in the Hawaii were allowed to reproduce and roam archipelago (Department of Geography State Seabird Sanctuary System. Green freely (Morin and Conant 1998; Tomich 1998).
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Kure Atoll was discovered and named Discussion of Plant Taxa (aheahea), Eragrostis variabilis (kawelu), in 1827 by the captain of a Russian Ipomoea indica (koali awa), Ipomoea Species Endemic to the Northwestern vessel. Between 1876 and 1936, pes-caprae ssp. brasiliensis (pohuehue), Hawaiian Islands Australian Copra & Guano Ltd. mined Panicum torridum (kakonakona), guano from Green Island and Sand Amaranthus brownii (No Common Scaevola sericea (naupaka), Schiedea Island, the two islands that make up Name (NCN)) verticillata (NCN), Sicyos pachycarpus Kure Atoll. Military bases were built on Amaranthus brownii, a member of the (kupala), Sida fallax (ilima), and the islands during World War II, and a amaranth family (Amaranthaceae), is an Solanum nelsonii (akia) (Hawaii Natural Loran C station with two 158 m (518 ft) herbaceous annual with leafy upright or Heritage Program (HINHP) Database high masts was operated until 1998. The ascending stems, 30 to 90 centimeters 2000). The threats to Amaranthus brownii on towers are no longer on the islands. The (cm) (1 to 3 ft) in length. The slightly airstrip built on Green Island is no Nihoa include competition with the hairy, alternate leaves are long, narrow, longer usable, and landing is only nonnative plant Portulaca oleracea and more or less folded in half possible by boat (Service 1998a). (pigweed), alteration of substrate, fire, lengthwise. The species is monoecious, potential introduction of rats and mice, Hawaiian Islands National Wildlife with male and female flowers being human disturbances, a risk of extinction Refuge found on the same plant. Amaranthus from naturally occurring events (such as The reefs and islets of the brownii can be distinguished from other hurricanes), and reduced reproductive Northwestern Hawaiian chain from Hawaiian members of the genus by its vigor due to the small number of extant Nihoa Island through Pearl and Hermes spineless leaf axils (the points between individuals (Service 1998d). Atoll are protected as the Hawaiian the stem and a leaf branch), linear Islands National Wildlife Refuge leaves, and indehiscent (remaining Pritchardia remota (loulu) (HINWR). The HINWR was established closed at maturity) fruits (Wagner et al., Pritchardia remota, a member of the in 1909 to protect the large colonies of 1999). palm family (Arecaceae), is a tree 4 to seabirds, which were being slaughtered The growing season for Amaranthus 5 m (13 to 16 ft) tall with a ringed, wavy for the millinery trade, and a variety of brownii extends from December to June trunk about 15 cm (5.9 in) in diameter. other marine organisms, including sea or July. Conant (1985) reported finding The rather ruffled, fan-shaped leaves are turtles and the critically endangered plants in an early flowering stage in approximately 80 cm (31 in) in diameter Hawaiian monk seal (Monachus February and collected seed from dead and somewhat waxy to pale green with schauinslandi), as well as to address the plants during June. Phenology may vary a few tiny scales on the lower surface. commercial exploitation of wildlife somewhat from year to year, depending The flowering stalks, which can be up resources (Executive Order 1019). on rainfall and climatic factors. to 30 cm (12 in) in length, are branched, Within the refuge’s boundaries are eight Pollination vectors, seed dispersal and the flowers are arranged spirally islands and atolls: Nihoa, Necker, agents, specific environmental along the hairless stalks. Pritchardia French Frigate Shoals, Gardner requirements, and limiting factors for remota is the only species of Pritchardia Pinnacles, Maro Reef, Laysan, Lisianski, this species are unknown (Service on Nihoa and can be distinguished from and Pearl and Hermes Atoll. There is no 1998d). other species in the genus by its wavy public or recreational use allowed at Amaranthus brownii is currently the leaves; short, hairless inflorescences; HINWR. Access is strictly regulated rarest native plant on Nihoa (Conant and small, round fruits (Read and Hodel through a permit system because of the 1985). When it was first collected in 1999; 61 FR 43178). sensitivity of the organisms on these 1923, it was ‘‘most common on the ridge Pritchardia remota is a long-lived islands to human disturbance and the leading to Miller’s Peak, but abundant perennial, and populations on Nihoa high risk of importation of nonnative also on the ridges to the east’’ (Herbst have remained stable for several years. plant and invertebrate species. For those 1977). In 1983, the two known groups Conant (1985) reported finding plants who do access the refuge, strict of colonies were separated by a distance with fruit and flowers in the spring and quarantine procedures are in effect. of 0.4 km (0.25 mi) and contained a total summer. Phenology may vary somewhat Other than the refuge staff, only of approximately 35 plants: one from year to year, depending on rainfall individuals conducting scientific occurrence of about 23 plants near and climatic factors. Pollination vectors, research or undertaking natural history Miller’s Peak and a second occurrence seed dispersal agents, specific film recording have been granted official of approximately a dozen plants in three environmental requirements, and permission to visit the HINWR (E. Flint, small groups in Middle Valley. No limiting factors for this species are pers. comm., 2002). plants have been seen at either location unknown (Service 1998d). since 1983, even though Service staff Pritchardia remota occurs on Nihoa at Northwestern Hawaiian Islands Coral have surveyed for the species annually elevations between 15 and 151 m (50 Reef Ecosystem Reserve (Service 1998d). None of the surveys and 500 ft) and may have historically On December 4, 2000, President conducted since 1983 have been occurred on Laysan Island as well Clinton issued an Executive Order conducted in the winter months when (Beccari and Rock 1921). Currently, establishing the 33,993,594 ha (84 this annual species is easiest to find and Pritchardia remota is known from four million ac) Northwestern Hawaiian identify. Access to the island is colonies on Nihoa that are found along Islands Coral Reef Ecosystem Reserve. particularly limited during the winter 0.2 km (0.1 mi) of the length of two This reserve includes the marine waters due to difficult and dangerous landing valleys on opposite sides of the island, and submerged lands of the NWHI and conditions (Cindy Rehkemper, Service, approximately 0.6 km (0.4 mi) apart. covers an area approximately 2,222 km pers. comm., 2001). More than 680 plants, including (1,200 nautical mi) long and 185 km Amaranthus brownii typically grows seedlings, are found in West Palm (100 nautical mi) wide. The reserve is in shallow soil on rocky outcrops. It is Valley and at least 392 plants are found adjacent to State of Hawaii waters and found in fully exposed locations at in East Palm Valley (HINHP Database submerged lands and the Midway Atoll elevations between 30 and 242 m (100 2000). A few individuals are also found NWR and includes the HINWR outside and 800 ft). Associated native plant taxa at the bases of basalt cliffs on the steep of State waters. include Chenopodium oahuense outer slopes of each of the two valleys
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(HINHP Database 2000). Pritchardia this species are unknown (Service Little is known about the life history remota is also present in a shadehouse 1998d). of Cenchrus agrimonioides. It has been on Laysan Island as seedlings, from All but one of the historic colonies of observed to produce fruit year round seeds collected at Nihoa for outplanting Schiedea verticillata are known to be (Service 1999), but other information on Laysan as part of identified recovery extant on Nihoa. Colony locations and about its flowering, pollination vectors, efforts for this species (Service 1998d). plant numbers appear to shift, but total seed dispersal agents, longevity, specific Pritchardia remota is one of the few numbers islandwide have remained environmental requirements, and Hawaiian members of the genus that relatively stable for several years. Seven limiting factors is generally unknown. occurs in relatively dry climates like colonies, containing a total of 497 Historically, Cenchrus agrimonioides that found on Nihoa. Its distribution on individuals, were documented between var. agrimonioides was known from Nihoa, however, may be related to 1980 and 1983 (HINHP Database 2000). Oahu, Lanai, Maui, and (in an availability of water since many In 1992, Service staff counted between undocumented report) the island of individuals are found in valleys and 170 and 190 plants in 6 colonies. In Hawaii (61 FR 53108; 65 FR 79192). near freshwater seeps (Service 1998d). 1996, a total of 359 plants, distributed Cenchrus agrimonioides var. In the Pritchardia remota coastal forest in 10 colonies primarily on the western laysanensis was historically known community, this species assumes half of the island, were identified, with from Laysan and Midway Islands and complete dominance, creating a closed an occurrence of 13 plants on the east Kure Atoll in the NWHI but has not canopy and understory of thick layers of spur of the island near Tunnel Cave. been seen there since about 1980 fallen fronds (Gagne and Cuddihy 1999). Two previously unobserved colonies of (HINHP Database 2000; O’Connor 1999). Native plants which occur nearby 2 and 99 plants were located on the It occurred on coastal sandy substrate in include Chenopodium oahuense, north cliffs above Miller’s Valley. Other Scaevola sericea-Eragrostis variabilis Sesbania tomentosa (ohai), Sida fallax, colonies included 24 plants at Dog’s scrub at an elevation of 5 m (16 ft). and Solanum nelsonii, (Service 1998d). Head, 37 plants at Devil’s Slide, 10 Morin and Conant (1998) report that C. agrimonioides var. laysanensis The threats to Pritchardia remota on plants near Miller’s Peak, a previously disappeared from Laysan before 1923, Nihoa include competition with unknown occurrence of 62 plants on the from Midway Atoll sometime shortly nonnative plants, potential introduction ridge separating West and West Palm after 1902, and was last seen on Green of rats and mice, possible herbivory by valleys, 80 plants near lower West Island (Kure Atoll) in about 1980. nonnative insect species, fire, human Valley, 28 individuals near Pinnacle Cenchrus agrimonioides var. disturbances, a risk of extinction from Peak, and 4 plants northeast of Pinnacle laysanensis has not been relocated naturally occurring events (such as Peak (Service 1998). during periodic monitoring on Laysan landslides), and reduced reproductive Schiedea verticillata typically grows in rocky scree, soil pockets, and cracks for more than 20 years and has not been vigor due to the small number of extant seen on Midway during recent surveys individuals (Service 1998d). in coastal cliff faces and in Pritchardia remota coastal mesic forest at elevations in 1995 and 1999. It has not been seen Schiedea verticillata (NCN) between 30 and 242 m (100 and 800 ft). on Kure Atoll for over 20 years, in spite Associated native plant taxa include of DOFAW’s annual seabird surveys and Schiedea verticillata, a member of the a botanical survey conducted there as pink family (Caryophyllaceae), is a Eragrostis variabilis, Rumex albescens (huahuako), Tribulus cistoides (nohu), recently as 2001. In addition, no viable perennial herbaceous species, which genetic material of this variety is known dies back to an enlarged root during the and lichens (HINHP Database 2000). The threats to Schiedea verticillata on to exist. We believe that it is extremely dry season. Stems, which can reach 0.4 unlikely that individual plants will be to 0.6 m (1.3 to 2 ft) in length, are both Nihoa include competition with nonnative plant species, possible rediscovered on these three islands and upright or pendant (drooping). The atolls. stalkless leaves are fleshy, broad, and herbivory by nonnative insect species, pale green and are usually arranged in potential introduction of rats and mice, Mariscus pennatiformis (NCN) human disturbances, a risk of extinction threes. Schiedea verticillata, the only Mariscus pennatiformis is a member member of its genus to grow in the from naturally occurring events (such as of the sedge family (Cyperaceae). It is a NWHI, is distinguished from other rockslides), and reduced reproductive short-lived perennial with a woody root species in the genus by its exceptionally vigor due to the small number of system covered with brown scales. The large sepals and (usually) three leaves individuals (Conant 1985; Service stout, three-angled stems are between per node (Wagner et al., 1999). 1998d). 0.4 and 1.2 m (1.3 and 4 ft) tall. This Schiedea verticillata is a short-lived Multi-Island Species species differs from other members of perennial. Dr. Steve Weller, University the genus by its slightly concave, of California at Irvine, found that Cenchrus agrimonioides (kamanomano) smooth stems; the length and number of Schiedea verticillata produces more Cenchrus agrimonioides, a short-lived spikelets (elongated flower-clusters); seeds and more nectar than any other perennial member of the grass family leaf width; and the length and diameter species in its genus. It also has the (Poaceae), has leaf blades that are flat or of stems. The two subspecies, M. highest degree of genetic diversity folded and a prominent midrib. The pennatiformis ssp. bryanii and M. among individuals of any species in the species is distinguished from others in pennatiformis ssp. pennatiformis, are genus (Service 1998d). This species’ the genus by a cylindrical to lance- distinguished by the length and width reproductive cycle may not be seasonal, shaped bur and the arrangement and of the spikelets; shape and length of the since Conant (1985) has found many life position of the bristles on the bur fruit; and color, length, and width of the stages simultaneously throughout the (O’Connor 1999; Wagner et al., 1999). glumes (scaly floral bracts) (Koyama year. Her observations also indicate that The two varieties, C. agrimonioides var. 1990). individual plants flower, set seed, and laysanensis and C. agrimonioides var. At the time Mariscus pennatiformis disperse seed in a relatively short period agrimonioides, differ from each other in was listed in 1994 (59 FR 94559), we of time. Pollination vectors, seed that C. agrimonioides var. laysanensis followed the taxonomic treatments in dispersal agents, specific environmental has smaller burs, shorter stems, and the Manual of the Flowering Plants of requirements, and limiting factors for narrower leaves. Hawaii (Wagner et al. 1990). Subsequent
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to this, we became aware of a new with silky hairs. The flowers are amended (Act) (16 U.S.C. 1531 et seq.), taxonomic treatment for the species and salmon-colored tinged with yellow, which directed the Secretary of the plan to publish a notice of taxonomic orange-red, scarlet, or, rarely, pure Smithsonian Institution to prepare a change to formalize this change after yellow. Sesbania tomentosa is the only report on plants considered to be publication of this final rule. endemic Hawaiian species in the genus, endangered, threatened, or extinct in the Individuals of Mariscus pennatiformis differing from the naturalized Sesbania United States. This report, designated as on Laysan Island were closely sesban in flower color, petal and calyx House Document No. 94–51, was monitored for 10 years, but the only length, and the number of seeds per pod presented to Congress on January 9, flowering observed was of one (Geesink et al. 1999). 1975. In that document Pritchardia individual from November to December, The pollination biology of Sesbania remota and Sesbania tomentosa (as S. coinciding with record high rainfall tomentosa has been studied by Dr. hobdyi and S. tomentosa var. (Service 1999). Little else is known David Hopper as part of his dissertation tomentosa) were considered about this plant’s flowering cycles, research conducted at the University of endangered. On July 1, 1975, we pollination vectors, seed dispersal Hawaii. His findings suggest that published a notice in the Federal agents, longevity, specific although many insects visit Sesbania Register (40 FR 27823) of our environmental requirements, or limiting flowers, the majority of successful acceptance of the Smithsonian report as factors (Service 1999). pollination is accomplished by native Historically, Mariscus pennatiformis bees of the genus Hylaeus and that a petition within the context of section was found on Kauai, Oahu, Maui, colonies at Kaena Point on Oahu are 4(c)(2) (now section 4(b)(3)) of the Act, Hawaii, and Laysan Island. Currently, probably pollinator-limited. Flowering and we gave notice of our intention to M. pennatiformis ssp. pennatiformis is at Kaena Point is highest during the review the status of the plant taxa found on Maui while M. pennatiformis winter-spring rains and gradually named therein. As a result of that ssp. bryanii is known only from Laysan declines throughout the rest of the year. review, on June 16, 1976, we published Island. This subspecies, M. Other aspects of this plant’s life history a proposed rule in the Federal Register pennatiformis ssp. bryanii, was found are unknown (Service 1999). (41 FR 24523) to determine endangered until recently on the southeast end of Currently, Sesbania tomentosa occurs status pursuant to section 4 of the Act the central lagoon and the west and on six of the eight main Hawaiian for approximately 1,700 vascular plant northeast sides of Laysan (HINHP Islands (Kauai, Oahu, Molokai, taxa, including Amaranthus brownii, Database 2000; Koyama 1990). Numbers Kahoolawe, Maui, and Hawaii) and on Cenchrus agrimonioides var. have fluctuated from as many as 200 to Nihoa and Necker. Although once found laysanensis, and Sesbania tomentosa. only 1 individual over the past 10 years. on Niihau and Lanai, it is no longer The list of 1,700 plant taxa was Currently, a single occurrence of about extant on those islands (Geographic assembled on the basis of comments and 200 individuals of M. pennatiformis ssp. Decision Systems International (GDSI) data received by the Smithsonian bryanii remains on the southeast end of 2000; HINHP Database 2000; Service Institution and the Service in response the lagoon (Service 1999). 1999; 54 FR 56333). On Nihoa, this to House Document No. 94–51 and the Mariscus pennatiformis ssp. bryanii is species has been described as relatively July 1, 1975, Federal Register found on coastal sandy substrate at an common in some areas, with one publication (40 FR 27823). elevation of 5 m (16 ft). Associated population consisting of several General comments received in native species include Cyperus thousand plants. On Necker Island, S. response to the 1976 proposal were laevigatus (makaloa), Eragrostis tomentosa is known from the tops of all summarized in an April 26, 1978, variabilis, and Ipomoea sp. (HINHP hills of the main island. A few Federal Register publication (43 FR Database 2000; Koyama 1990). individuals are found on the Northwest The threats to Mariscus pennatiformis 17909). In 1978, amendments to the Act Cape as well (Service 1999). required that all proposals over 2 years ssp. bryanii on the island of Laysan Sesbania tomentosa is found in old be withdrawn. A 1-year grace period include seed predation by the shallow soil on sandy beaches and was given to proposals already over 2 endangered Laysan finch (Telespiza dunes in Chenopodium oahuense years old. On December 10, 1979, we cantans) and burrowing activities of coastal dry shrubland or mixed coastal published a notice in the Federal nesting seabirds. The native plant dry cliffs at elevations up to 84 m (276 Register (44 FR 70796) withdrawing the Ipomoea pes-caprae (beach morning ft) (HINHP Database 2000). Associated glory) is another possible threat since it plant species include Pritchardia portion of the June 16, 1976, proposal periodically overgrows Mariscus remota, Scaevola sericea, Sida fallax, that had not been made final, along with individuals (Service 1999). In addition, and Solanum nelsonii (Geesink et al. four other proposals that had expired. native Sicyos spp. (anunu) vines, 1999; HINHP Database 2000; Service The Service published updated Notices Eragrostis variabilis, and Boerhavia 1999). of Review for plants on December 15, repens (alena) appear to impede natural The primary threats to Sesbania 1980 (45 FR 82479), September 27, 1985 dispersal of M. pennatiformis ssp. tomentosa on Nihoa and Necker include (50 FR 39525), February 21, 1990 (55 FR bryanii into other suitable locations competition with various nonnative 6183), and September 30, 1993 (58 FR (Schultz 2000). plant species, lack of adequate 51144). We listed Amaranthus brownii, pollination, potential introduction of Cenchrus agrimonioides, Mariscus Sesbania tomentosa (ohai) rats and mice, predation by nonnative pennatiformis, Pritchardia remota, Sesbania tomentosa, a member of the insects, and fire (Service 1999). Schiedea verticillata, and Sesbania legume family (Fabaceae), is typically a tomentosa as endangered between 1994 sprawling short-lived perennial shrub to Previous Federal Action and 1996. A summary of the listing small tree. Each compound leaf consists Federal action on these plants began actions can be found in Table 2, and a of 18 to 38 oblong to elliptic leaflets that as a result of section 12 of the summary of the critical habitat actions are usually sparsely to densely covered Endangered Species Act of 1973, as can be found in Table 3.
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TABLE 2.—SUMMARY OF LISTING ACTIONS FOR SIX PLANT SPECIES FROM THE NWHI
Proposed rule Final rule Species Federal status Date Federal Register Date Federal Register
Amaranthus brownii ...... Endangered ...... 03/24/93 58 FR 15828 08/21/96 61 FR 43178 Cenchrus agrimonioides ...... Endangered ...... 10/2/95 60 FR 51417 10/10/96 61 FR 53108 Mariscus pennatiformis ...... Endangered ...... 09/14/93 58 FR 48012 11/10/94 59 FR 56333 Pritchardia remota ...... Endangered ...... 03/24/93 58 FR 15828 08/21/96 61 FR 43178 Schiedea verticillata ...... Endangered ...... 03/24/93 58 FR 15828 08/21/96 61 FR 43178 Sesbania tomentosa ...... Endangered ...... 09/14/93 58 FR 48012 11/10/94 59 FR 56333
TABLE 3.—SUMMARY OF CRITICAL HABITAT ACTIONS, TO DATE, FOR SIX PLANT SPECIES FROM THE NORTHWESTERN HAWAIIAN ISLANDS
Proposed critical habitat des- Final critical habitat Species ignations or nondesignations Date(s) Federal Register Date(s) Federal Register
Amaranthus brownii ...... 05/14/02 67 FR 34522 (1) This final rule. Cenchrus agrimonioides ...... 12/18/00 65 FR 79192 05/14/03 68 FR 25934. 04/03/02 67 FR 15856 03/04/02 67 FR 9806 Mariscus pennatiformis ...... 12/18/00 65 FR 79192 02/27/03 68 FR 9116. 01/28/02 67 FR 3940 05/15/03 68 FR 25934. 04/03/02 67 FR 15856 05/14/02 67 FR 34522 05/28/02 67 FR 15856 05/28/02 67 FR 36968 Pritchardia remota ...... 05/14/02 67 FR 34522 (1) This final rule. Schiedea verticillata ...... 05/14/02 67 FR 34522 (1) This final rule. Sesbania tomentosa ...... 11/07/00 65 FR 66808 02/27/03 68 FR 9116. 12/18/00 65 FR 79192 03/18/03 68 FR 12982. 12/29/00 65 FR 83158 05/14/03 68 FR 25934. 01/28/02 67 FR 3940 (1) This final rule. 04/03/02 67 FR 15856 03/04/02 67 FR 9806 04/05/02 67 FR 16492 05/14/02 67 FR 34522 05/28/02 67 FR 37108 05/28/02 67 FR 36968 1 See DATES section of this rule.
At the time each of the six plants were also held that we failed to balance any (DOFAW), and Federal agencies (U.S. listed, we determined that designation risks of designating critical habitat Department of Defense—Army, Navy, of critical habitat was not prudent against any benefits (id. at 1283–85). Air Force). Only a few responses offered because it would not benefit the plant On August 10, 1998, the court ordered information on the status of individual or would increase the degree of threat to us to publish proposed critical habitat plant species or on current management the species. The not prudent designations or nondesignations for at actions for one or more of the 245 determinations for these species, along least 100 species by November 30, 2000, Hawaiian plants. While some of the with others, were challenged in and to publish proposed designations or respondents expressed support for the Conservation Council for Hawaii v. nondesignations for the remaining 145 designation of critical habitat for 245 Babbitt, 2 F. Supp. 2d 1280 (D. Haw. species by April 30, 2002 (Conservation Hawaiian plants, more than 80 percent 1998). On March 9, 1998, the United Council for Hawaii v. Babbitt, 24 F. opposed the designation of critical States District Court for the District of Supp. 2d 1074 (D. Haw., 1998)). habitat for these plants. In general, these Hawaii directed us to review the On November 30, 1998, we published respondents opposed designation prudency determinations for 245 listed a notice in the Federal Register because they believed it would cause plant species in Hawaii, including requesting public comments on our economic hardship, chill cooperative Amaranthus brownii, Cenchrus reevaluation of whether designation of projects, polarize relationships with agrimonioides, Mariscus pennatiformis, critical habitat is prudent for the 245 hunters, or potentially increase trespass Pritchardia remota, Schiedea Hawaiian plants at issue (63 FR 65805). or vandalism on private lands. In verticillata, and Sesbania tomentosa. The comment period closed on March 1, addition, commenters also cited a lack Among other things, the court held that 1999, and was reopened from March 24, of information on the biological and in most cases we did not sufficiently 1999, to May 24, 1999 (64 FR 14209). ecological needs of these plants, which, demonstrate that the species are We received more than 100 responses they suggested, may lead to designation threatened by human activity or that from individuals, nonprofit based on guesswork. The respondents such threats would increase with the organizations, county governments, the who supported the designation of designation of critical habitat. The court State’s Division of Forestry and Wildlife critical habitat cited that designation
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would provide a uniform protection by April 30, 2002, as required by the The majority of commenters supported plan for the Hawaiian Islands, promote 1998 court order. the designation of critical habitat for the funding for management of these plants, In the May 14, 2002, proposal, critical NWHI, and no commenters were educate the public and State habitat was proposed for 493 ha (1,219 expressly opposed to the designation. government, and protect partnerships ac) on Nihoa, Necker, and Laysan with landowners and build trust. Islands. In that proposed rule, we Peer Review On November 7, 2000, we published indicated that critical habitat was In accordance with our policy the first of the court-ordered proposed prudent, and we proposed critical published on July 1, 1994 (59 FR critical habitat designations or habitat, for Amaranthus brownii, 34270), we solicited independent nondesignations for Kauai and Niihau Pritchardia remota, and Schiedea opinions from 13 knowledgeable plants (65 FR 66808). The proposed verticillata. We also proposed critical individuals with expertise in one or critical habitat designations or habitat for Mariscus pennatiformis and several fields, including familiarity with nondesignations for Maui and Sesbania tomentosa. Critical habitat was the species, the geographic region that Kahoolawe plants were published on not proposed for Cenchrus the species occurs in, and knowledge of December 18, 2000 (65 FR 79192), for agrimonioides in the NWHI because the the principles of island conservation Lanai plants on December 27, 2000 (65 only variety of that species that occurs biology. We received comments from FR 82086), and for Molokai plants on there, C. a var. laysanensis, has not been four of these individuals who generally December 29, 2000 (65 FR 83158). All seen in the wild for over 20 years and supported our methods and conclusion of these proposed rules had been sent to no genetic material of this variety is and who provided additional the Federal Register by, or on, known to exist. Publication of the information. Comments received from November 30, 2000, as required by the proposed rule opened a 60-day public court’s order. In those proposals, we comment period. peer reviewers are summarized in the proposed that critical habitat was On July 11, 2002, we submitted joint following section and were considered prudent for three of the NWHI species stipulations with Earthjustice to the U.S. in the development of the final rule. (Cenchrus agrimonioides, Mariscus District Court requesting extension of All comments received were reviewed pennatiformis, and Sesbania tomentosa) the court orders for the final rules to for substantive issues, notation of errors, that are reported from Kauai and/or designate critical habitat for plants from and new information regarding critical Niihau, as well as from Maui and Lanai (December 30, 2002), Kauai and habitat for Amaranthus brownii, Molokai. Critical habitat was proposed Niihau (January 31, 2003), Molokai Cenchrus agrimonioides, Mariscus for Cenchrus agrimonioides and (February 28, 2003), Maui and pennatiformis, Pritchardia remota, Mariscus pennatiformis on Maui, and Kahoolawe (April 18, 2003), the Schiedea verticillata, and Sesbania for Sesbania tomentosa on Kauai, Maui, Northwestern Hawaiian Islands (April tomentosa. Similar comments received and Molokai. 30, 2003), Oahu (April 30, 2003), and were grouped into four general issues On October 3, 2001, we submitted a the island of Hawaii (May 30, 2003), and are addressed in the following joint stipulation with Earthjustice to the citing the need to conduct additional summary. U.S. District Court requesting extension review of the proposals, address of the court order for the final rules to comments received during the public Issue 1: Biological Justification and designate critical habitat for plants from comment periods, and to conduct a Methodology Kauai and Niihau (July 30, 2002), Maui series of public workshops on the (1) Comment: One peer reviewer and Kahoolawe (August 23, 2002), Lanai proposals. The joint stipulations were questioned the Service for considering (September 16, 2002), and Molokai approved and ordered by the court on all three critical habitat units (Nihoa, (October 16, 2002), citing the need to July 12, 2002. Necker, and Laysan Islands) to be On September 12, 2002, we published revise the proposals to incorporate or critical habitat for Amaranthus brownii, a notice announcing the availability of address new information and comments Mariscus pennatiformis, Pritchardia received during the comment periods. the draft economic analysis on the remota, Schiedea verticillata, and The joint stipulation was approved and proposed critical habitat for NWHI (67 Sesbania tomentosa as there is no ordered by the court on October 5, 2001. FR 57784). We accepted comments on record that any of these species On January 28, 2002, we published the draft analysis until the comment occurred on all three islands and as at revised proposed critical habitat period closed on October 15, 2002. designations or nondesignations for least one species (i.e., Mariscus plant species from Kauai and Niihau (67 Summary of Comments and pennatiformis ssp. bryanii) is a single- FR 3940), for plant species from Lanai Recommendations island endemic. on March 4, 2002 (67 FR 9806), for plant In the proposed rule published on Our Response: All three islands are species from Maui and Kahoolawe on May 14, 2002 (67 FR 34522), we not considered to be critical habitat for April 3, 2002 (67 FR 15856), and for requested that all interested parties all five of the species. On Nihoa Island, plant species from Molokai on April 5, submit written comments on the critical habitat is designated for 2002 (67 FR 16492); these proposals proposed designation or nondesignation Amaranthus brownii, Pritchardia included critical habitat on one or more of critical habitat for six plant species remota, Schiedea verticillata, and islands for three of the NWHI species: from the NWHI. We also contacted all Sesbania tomentosa. On Necker Island, Cenchrus agrimonioides, Mariscus appropriate Federal, State, and local critical habitat is designated for pennatiformis, and Sesbania tomentosa. agencies, scientific organizations, and Sesbania tomentosa, and on Laysan On May 14, 2002, we published the other interested parties and invited Island critical habitat is designated for proposed critical habitat designations or them to comment. No request for a Mariscus pennatiformis and Pritchardia nondesignations for plant species from public hearing was received. We remota (as a recovery population). The the NWHI (67 FR 34522), for Hawaii received individually written letters critical habitat units on each island are Island plants on May 28, 2002 (67 FR from 13 parties, including 4 of the 13 designated for species within extant or 36968), and for Oahu plants on May 28, designated peer reviewers, 2 State historic range or within areas identified 2002 (67 FR 37108). These proposed agencies, 2 branches of the military, and in the recovery plans for conservation of rules were sent to the Federal Register 5 private organizations or individuals. the species.
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Issue 2: Effects of Critical Habitat that: (1) Contain the primary constituent are deleterious to habitat for listed Designation elements that are essential to the species or biota of the islands or that (2) Comment: One peer reviewer conservation of one or more of the could compromise human safety. noted that while the designation of species; (2) are within the historical Typically, access to Federal lands that critical habitat is unlikely to have a range or are identified in the recovery are designated as critical habitat is not major impact on the future of NWHI plans for conservation of one or more of restricted unless access is determined to plant species, it would increase the species; and (3) are sufficient to result in the destruction or adverse awareness of the unique biological meet our overall recovery goals for these modification of the critical habitat. attributes of these islands and species. For Mariscus pennatiformis, the However, Nihoa, Necker, and Laysan ultimately increase the likelihood that only subspecies known from the NWHI Islands, and their surrounding reefs, are is M. p. ssp. bryanii. Critical habitat also part of the HINWR, which we manage these species will persist. Another is designated for this taxon on Laysan in accordance with the National reviewer supported the designation of Island. Critical habitat also was Wildlife Refuge System Administration critical habitat stating that such designated for M. p. ssp. pennatiformis Act of 1966. There is no general public designation would provide an added, on Kauai and Maui (68 FR 9116, 68 FR or recreational use allowed at HINWR. and much needed, layer of protection 25934, May 14, 2003) and is proposed Access is strictly regulated through a for plant habitat insofar as: (1) The on Oahu (67 FR 37108). Critical habitat permit system because of the sensitivity Departments of the Interior and was designated on Nihoa and Necker for of the organisms on these islands to Commerce disagree on the seaward Sesbania tomentosa as well as Kauai, human disturbance and the high risk of boundaries of the HINWR; (2) the State Molokai, and Maui (68 FR 9116, 68 FR importation of nonnative plant and of Hawaii has overlapping jurisdiction 12982, 68 FR 25934, May 14, 2003) and invertebrate species. Other than the with the HINWR; (3) a public process is is proposed on Oahu and the island of refuge staff, only individuals conducting currently in motion to establish a Hawaii (67 FR 37108, 67 FR 36968). scientific research or undertaking National Marine Sanctuary in the We are not designating critical habitat natural history film recording have been NWHI, which could create an increased for Cenchrus agrimonioides at this time granted official permission to visit the commercial interest in eco-tourism in for the following reasons: C. a. var. HINWR, and these persons are required the area; and (4) the native Hawaiian laysanensis, the only variety of this to apply for a Special Use Permit and community has expressed a desire for species known from the NWHI, is abide by the terms and conditions set access to Nihoa and Necker Islands for historically known from Laysan, forth in this permit in order to ensure ceremonial purposes. A final reviewer Midway, and Kure Atoll. This plant has that the biological integrity, diversity, stated that, although the protection not been reported on Laysan and and environmental health of the refuge afforded by the designation of critical Midway for over 70 and 100 years, are maintained for the benefit of present habitat is unclear, such designation has respectively. A permanent year-round and future generations of Americans (E. advocacy value because the courts are camp on Laysan, staffed by paid Flint, pers. comm., 2002). Examples of more likely to find violations of the Act employees and volunteers, conducts preventative measures put in place by for listed species within such habitat. periodic monitoring of both native and the Special Use Permit program include Our Response: Critical habitat is one nonnative plant species, and C. a. var. quarantine protocols to prevent of a number of conservation tools laysanensis has not been seen during introduction of unwanted plants or established in the Act. these monitoring efforts. On Midway, C. insects, and a limitation on the number (3) Comment: One reviewer a. var. laysanensis was not seen during of people on the island(s) at any one commented that the Service should the most recent botanical surveys of time. In addition, through the Special consider unoccupied, historic habitat 1995 and 1999. Cenchrus agrimonioides Use Permit program, we are able to that falls outside of the HINWR (i.e., var. laysanensis has not been seen on protect the cultural artifacts present on Kure Atoll) for designation as critical Kure Atoll for over 20 years though the these islands. habitat as some plant species may need State DOFAW conducts annual seabird to be re-introduced into such habitat to surveys and a botanical survey was Issue 3: Species-Specific Biological avoid extinction. Another reviewer conducted there as recently as 2001. In Comments expressed concern that the Service was addition, no viable genetic material of (5) Comment: One peer reviewer restricting the designation of critical this variety is known to exist (see D. found it unlikely that the species of habitat to areas within the HINWR in Criteria Used to Identify Critical Pritchardia that once occurred on order to avoid public controversy. Habitat). The rediscovery of currently Laysan Island would have been Our Response: We recognize that the unknown individual plants on these Pritchardia remota. Species of this long-term conservation of the NWHI three islands and atolls is believed to be genus are single-island endemics, and species is dependent upon the extremely unlikely. no collections of Pritchardia remota are protection of existing populations and (4) Comment: The Office of Hawaiian known from Laysan Island. This the establishment and protection of Affairs, a State agency, commented that reviewer did feel that the introduction additional populations within the critical habitat must allow traditional of Pritchardia remota to Laysan Island historic range (i.e., unoccupied habitat) cultural gathering rights of Native was ecologically appropriate given that of each species or within areas Hawaiians as reflected in Article XII of there is suitable habitat for the species identified in the recovery plans for the State constitution and upheld by the and that the species of Pritchardia that conservation of the species. As such, we Hawaii Supreme Court in the Public once occurred on Laysan Island is no examined the current and historically Access Shoreline Hawaii and Ka Pa akai longer extant. occupied habitat, and areas identified in o Ka Aina decisions. Our Response: The now extinct the recovery plans for conservation of Our Response: We understand and species of Pritchardia that once the species. For Amaranthus brownii, support the cultural significance of occurred on Laysan Island was not Pritchardia remota, and Schiedea these islands to the Native Hawaiian clearly identified; however, the idea that verticillata, species known only from people, and it is our policy to permit P. remota did occur on Laysan was the islands within the NWHI, we were religious and ceremonial gatherings as suggested by Joseph Rock in 1921. We able to locate sites within the HINWR long as they do not result in effects that have revised the text in the final rule to
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reflect the uncertainty of the species Oahu, and Hawaii. As such, C. p. ssp. 1995 and 1999. Cenchrus agrimonioides that was once extant on Laysan. bryanii should be acknowledged as a var. laysanensis has not been seen on Pritchardia remota has been distinct genetic population, even if the Kure Atoll for over 20 years though the recommended as a replacement because subspecies are not separately listed State DOFAW conducts annual seabird it is believed to be closest to the species under the Act. surveys and a botanical survey was of Pritchardia that once was present on Our Response: We acknowledge that conducted there as recently as 2001. In the island. The recovery plan prepared the current accepted nomenclature for addition, no viable genetic material of for three plant species on Nihoa Island, this species has changed since the final this variety is known to exist. The including P. remota, proposes rule listing Mariscus pennatiformis as rediscovery of currently unknown establishing a population on Laysan endangered was published in 1994 (59 individual plants on these three islands Island as part of the recovery process for FR 94559). At that time, however, we and atolls is believed to be extremely this species. HINWR staff are working followed the accepted taxonomic unlikely (see D. Criteria Used to Identify with staff from our Ecological Services, treatment in The Manual of Flowering Critical Habitat). Pacific Islands Office, in this effort. At Plants of Hawaii (Wagner et al. 1990). In Issue 4: Nonnative Species one time, there were 11 palms the revised edition of the manual outplanted on Laysan from seeds (Wagner et al. 1999), the species has (9) Comment: One peer reviewer brought directly from Nihoa Island. been assigned to the genus Cyperus, and commented that the most important These survived until they were flooded its subspecies are now varieties (Strong factor in maintaining biota on these by high lake levels and died. HINWR & Wagner 1997; Wagner et al. 1999). We remote islands is to have a vigorous and staff now have approximately 400 plan to publish a notice revising the comprehensive quarantine system and a seedlings (from seed gathered at Nihoa name for this species; however, this method to eliminate and investigate Island) in a shade house on Laysan could not be accomplished prior to the unauthorized landings. Additionally, Island. These will be outplanted to completion of this final rule. The the reviewer stressed the crucial nature suitable habitat on Laysan (E. Flint, discussion of Mariscus pennatiformis in of both an active and proactive pers. comm., 2002). the section on Multi-Island Species eradication and management scheme for (6) Comment: One peer reviewer under ‘‘Discussion of Plant Taxa’’ states nonnative species. commented that it is essential that that M. p. ssp. bryanii occurs only on Our Response: We have in place surveys for Amaranthus brownii be Laysan Island. Listing as endangered at quarantine procedures for the HINWR, conducted on Nihoa Island in the winter the species level provides protection for which include very strict measures to to maximize its detection. This reviewer all varieties and subspecies of the prevent the introduction of invasive feels that it is inappropriate to species. Critical habitat is designated on invertebrate and vertebrate species. On recommend protective measures for a Laysan Island for M. p. ssp. bryanii. islands where invasive nonnative plant whose population has not been Critical habitat was designated for M. p. species have already been introduced, assessed in 20 years. ssp. pennatiformis on Kauai and Maui we are implementing measures targeted Our Response: Amaranthus brownii (68 FR 9116, 68 FR 25934, May 14, at their eradication. In those areas where was last seen on Nihoa Island in 1983 2003) and is proposed on Oahu (67 FR such eradication efforts have not yet as two colonies that totaled 35 plants. 37108). been initiated, we are gathering We have surveyed Nihoa for this species (8) Comment: One reviewer expressed information on methods by which we for over 20 years. While we agree that concern regarding the Service’s decision can best control and eliminate invasive the winter months are the optimal time not to designate critical habitat for taxa. Text was also provided in the to survey for this winter annual species, Cenchrus agrimonioides var. ‘‘Discussion of Plant Taxa’’ to make it as it is more easily detected during this laysanensis because the taxon had not clear that the presence of rats and mice period, access to the island during this been seen in the wild for over 20 years on Nihoa, Necker, and Laysan was a season is extremely limited. Landings and no viable genetic material is known potential threat as these nonnative during the winter months can be to exist. The reviewer asserts that there species are not currently present. difficult and dangerous due to sea have been no comprehensive botanical conditions that can change without surveys of all of the islands where the Summary of Changes From the warning, stranding visitors on an island taxon was known to exist, citing that the Proposed Rule with a limited source of fresh water and Service had made a similar decision for Based on a review of public no regular food supply. Because another plant species on Kauai, only to comments received on the critical Amaranthus brownii was detected on have it rediscovered. habitat proposal, we have included the Nihoa Island in 1983 and habitat Our Response: Critical habitat is not following several changes in this final conditions are the same, we consider designated for Cenchrus agrimonioides rule: the species to be extant (as a seedbank) var. laysanensis, the only variety of this (1) Based upon more refined GIS and have found it appropriate to species known from the NWHI, for the analysis, we corrected the total land designate critical habitat for this species following reasons: C. a. var. laysanensis area, 498 ha (1,232 ac) proposed as on Nihoa Island. is historically known from Laysan, critical habitat for Pritchardia remota (7) Comment: One peer reviewer Midway, and Kure Atoll. This plant has and Mariscus pennatiformis on Laysan requested that the Service use Cyperus not been reported on Laysan and Island to 493 ha (1,219 ac) designated as pennatiformis, the currently accepted Midway for over 70 and 100 years, critical habitat for Pritchardia remota name for Mariscus pennatiformis. respectively. A permanent year-round and Mariscus pennatiformis on Laysan Concern was expressed, as the current camp on Laysan, staffed by paid Island. nomenclature is what will be used in employees and volunteers, conducts (2) At the time we listed Mariscus scientific and grey literature, that there periodic monitoring of both native and pennatiformis (59 FR 94559), we could be confusion otherwise. The nonnative plant species, and C. a. var. followed the taxonomic treatment in the reviewer also noted that Cyperus laysanensis has not been seen during widely used and accepted Manual of the pennatiformis ssp. bryanii occurs only these monitoring efforts. On Midway, C. Flowering Plants of Hawaii (Wagner et on Laysan Island and that C. p. ssp. a. var. laysanensis was not seen during al., 1990). Since that time, the species pennatiformis occurs on Kauai, Maui, the most recent botanical surveys of has been assigned to the genus Cyperus
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(Wagner et al., 1999). We plan to species’ survival and its recovery has outside the geographic area occupied by publish a notice of name change for been a source of confusion to some in the species. Mariscus pennatiformis subsequent to the past. We believe that a species’ Our Policy on Information Standards publishing this final rule. ability to recover depends on its ability Under the Endangered Species Act, (3) We revised the text to reflect that to survive into the future when its published in the Federal Register on the species of Pritchardia historically recovery can be achieved; thus, the July 1, 1994 (59 FR 34271), provides extant on Laysan Island is uncertain but concepts of long-term survival and criteria, establishes procedures, and that it had been suggested that the recovery are intricately linked. provides guidance to ensure that our species may have been P. remota However, in the March 15, 2001, decisions represent the best scientific (Wagner et al., 1999). We have also decision of the United States Court of and commercial data available. It revised the primary constituent Appeals for the Fifth Circuit (Sierra requires our biologists, to the extent elements for P. remota on Laysan and Club v. U.S. Fish and Wildlife Service et consistent with the Act and with the use Nihoa. al., 245 F.3d 434) regarding a not of the best scientific and commercial (4) We revised the list of excluded, prudent finding, the court found our data available, to use primary and manmade features in the ‘‘Criteria Used definition of destruction or adverse original sources of information as the to Identify Critical Habitat’’ and section modification as currently contained in basis for recommendations to designate 17.99 ‘‘Critical Habitat-Plants’’ to delete 50 CFR 402.02 to be invalid. In response critical habitat. When determining from the final rule reference to roads, to this decision, we are reviewing the which areas are critical habitat, a aqueducts, radar, missile launch sites, regulatory definition of adverse primary source of information should be airports, paved areas, or rural modification in relation to the the listing package for the species. landscaping because these features conservation of the species. Additional information may be obtained either do not exist on these islands or In order to be included in a critical from recovery plans, articles in peer- do not contain primary constituent habitat designation, habitat in areas reviewed journals, conservation plans elements for these plants on these known to be occupied at the time of developed by States and counties, islands. listing must contain physical or scientific status surveys and studies, Critical Habitat biological features essential to the and biological assessments or other conservation of the species and which unpublished materials. Critical habitat is defined in section 3 It is important to clearly understand may require special management of the Act as—(i) the specific areas that critical habitat designations do not considerations or protection. Outside within the geographical area occupied signal that habitat outside the the areas known to have been occupied by a species, at the time it is listed in designation is unimportant or may not at the time of listing, an area must be accordance with the Act, on which are be required for recovery. Areas outside essential to the conservation of the found those physical or biological the critical habitat designation will species in order to qualify for features (I) essential to the conservation continue to be subject to conservation of the species and (II) that may require designation. Thus, critical habitat actions that may be implemented under special management considerations or designations identify, to the extent section 7(a)(1) and to the regulatory protection; and (ii) specific areas known, using the best scientific and protections afforded by the Act’s 7(a)(2) outside the geographical area occupied commercial data available, habitat areas jeopardy standard and section 9 by a species at the time it is listed, upon that provide essential life-cycle needs of prohibitions, as determined on the basis a determination that such areas are the species (i.e., areas on which are of the best available information at the essential for the conservation of the found the primary constituent elements, time of the action. We specifically species. ‘‘Conservation,’’ as defined by as defined at 50 CFR 424.12(b)). anticipate that federally funded or the Act, means the use of all methods Section 4 requires that we designate assisted projects affecting listed species and procedures that are necessary to critical habitat for a species, to the outside their designated critical habitat bring an endangered or threatened extent such habitat is determinable, at areas may still result in jeopardy species to the point at which listing the time of listing. When we designate findings in some cases. Similarly, under the Act is no longer necessary. critical habitat at the time of listing or critical habitat designations made on the Critical habitat receives protection under short court-ordered deadlines, we basis of the best available information at under section 7 of the Act through the may not have sufficient information to the time of designation will not control prohibition against destruction or identify all the areas essential for the the direction and substance of future adverse modification of critical habitat conservation of the species. recovery plans, habitat conservation with regard to actions carried out, Nevertheless, we are required to plans, or other species conservation funded, or authorized by a Federal designate those areas we believe to be planning efforts if new information agency. Section 7 also requires critical habitat, using the best available to these planning efforts calls conferences on Federal actions that are information available to us. for a different outcome. Furthermore, likely to result in the destruction or Our regulations state that ‘‘The we recognize that designation of critical adverse modification of proposed Secretary shall designate as critical habitat may not include all of the critical habitat. In our regulations at 50 habitat areas outside the geographical habitat areas that may eventually be CFR 402.02, we define destruction or area presently occupied by a species determined to be necessary for the adverse modification as ‘‘direct or only when a designation limited to its recovery of the species. indirect alteration that appreciably present range would be inadequate to diminishes the value of critical habitat ensure the conservation of the species’ A. Prudency for both the survival and recovery of a (50 CFR 424.12(e)). Accordingly, when The designation of critical habitat is listed species. Such alterations include, the best available scientific and not prudent when the species is but are not limited to, alterations commercial data do not indicate that the threatened by taking or other human adversely modifying any of those conservation needs of the species activity, and identification of critical physical or biological features that were require designation of critical habitat habitat can be expected to increase the the basis for determining the habitat to outside of occupied areas, we will not degree of such threat to the species (50 be critical.’’ The relationship between a designate critical habitat in areas CFR 424.12(a)(1)).
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To determine whether critical habitat are contained in the final rules Plants (Service 1999). The HPPRCC would be prudent for Amaranthus published on January 9, 2003, and expects that there will be subsequent brownii, Pritchardia remota, and February 27, 2003, respectively (68 FR efforts to further refine the locations of Schiedea verticillata, we analyzed the 1220 and 68 FR 9116). The reasons why important habitat areas and that new potential threats and benefits for each we believe designation of critical habitat survey information or research may also species in accordance with the court’s is prudent for Cenchrus agrimonioides lead to additional refinement of order. Due to low numbers of are contained in the final rule published identifying and mapping of habitat individuals and populations and their on January 9, 2003 (68 FR 1220). important for the recovery of these inherent immobility, the three plants Although critical habitat for Cenchrus species. may be vulnerable to unrestricted agrimonioides is not being designated The HPPRCC identified essential collection, vandalism, or disturbance, on the NWHI (as it has not been seen habitat areas for all listed, proposed, though this is unlikely given their there for over 20 years and no viable and candidate plants and evaluated inaccessibility. Recently, we received genetic material exists), we are species of concern to determine if information on the commercial trade in designating critical habitat for this essential habitat areas would provide for palms conducted through the Internet species on Maui (68 FR 25934, May 14, their habitat needs. However, the (Grant Canterbury, Service, in litt., 2003). HPPRCC’s mapping of habitat is distinct 2000). Several nurseries advertise and from the regulatory designation of B. Methods sell seedlings and young plants, critical habitat as defined by the Act. including 13 species of Hawaiian As required by the Act and More data have been collected since the Pritchardia. Seven of these species are regulations (section 4(b)(2) and 50 CFR recommendations made by the HPPRCC federally protected, including 424.12), we used the best scientific in 1998. Much of the area that was Pritchardia remota. While we have information available to determine areas identified by the HPPRCC as determined that designation of critical that contain the physical and biological inadequately surveyed has now been habitat is not prudent for other species features that are essential for the surveyed to some degree. New location of Pritchardia because the benefits of conservation of Amaranthus brownii, data for many species have been designating critical habitat do not Mariscus pennatiformis, Pritchardia gathered. Also, the HPPRCC identified outweigh the potential increased threats remota, Schiedea verticillata, and areas as essential based on species from vandalism or collection (65 FR Sesbania tomentosa. Using the best clusters (areas that included listed 66808, 65 FR 83158), we do not believe information available, we could not species, as well as candidate species this species is threatened by these same identify areas in the NWHI that are and species of concern) while we have activities because of its inaccessibility. essential for Cenchrus agrimonioides for only delineated areas that are essential Nihoa is more than 273 km (170 mi) the reasons described in section D. for the conservation of the specific from Lihue, Kauai, and more than 1,600 Criteria Used to Identify Critical listed species at issue. As a result, the km (1,000 mi) from Midway. It is a part Habitat. This information included the critical habitat designations in this rule of the HINWR, and a permit is required known locations and site-specific include not only some habitat that was for access to the island. Access to the species information from the HINHP identified as essential in the 1998 island is further limited due to difficult database and our own rare plant recommendations but also habitat that and dangerous landing conditions. database; species information from the was not identified as essential in those Passengers must be dropped off and the Center for Plant Conservation’s (CPC) recommendations. rare plant monitoring database housed boat sent back out to sea, as there are no C. Primary Constituent Elements mooring docks or beaches. The boat at the University of Hawaii’s Lyon must return later to pick up the Arboretum; islandwide Geographic In accordance with section 3(5)(A)(i) passengers, when conditions allow. Sea Information System (GIS) coverages of the Act and regulations at 50 CFR conditions are apt to change without (e.g., vegetation, soils, annual rainfall, 424.12, in determining which areas to warning, stranding visitors on this elevation contours, landownership); the propose as critical habitat, we are inhospitable island that has no fresh final listing rules for these species; the required to base critical habitat water and no regular food supply (C. May 14, 2002, proposal of critical determinations on the best scientific Rehkemper, pers. comm., 2001). habitat; information received during the and commercial data available and to We examined the evidence available public comment period; recent consider those physical and biological for Amaranthus brownii and Schiedea biological surveys and reports; recovery features (primary constituent elements) verticillata and have not, at this time, plans for these species; discussions with that are essential to the conservation of found specific evidence of taking, botanical experts; and recommendations the species and that may require special vandalism, collection, or trade of these from the Hawaii and Pacific Plant management considerations or taxa or of similar species. Therefore, Recovery Coordinating Committee protection. These features include, but consistent with applicable regulations (HPPRCC) (see also the discussion are not limited to: Space for individual (50 CFR 424.12(a)(1)(i)) and the court’s below) (CPC in litt. 1999; GDSI 2000; and population growth, and for normal discussion of these regulations, we do HINHP Database 2000; HPPRCC 1998; behavior; food, water, air, light, not believe that these three species are Service 1998d, 1999; 59 FR 56333; 61 minerals, or other nutritional or currently threatened by taking or other FR 43178; 61 FR 53108; 65 FR 83158; physiological requirements; cover or human activity, which would be 67 FR 16492; 67 FR 34522). shelter; sites for breeding, reproduction, exacerbated by the designation of In 1994, the HPPRCC initiated an or rearing of offspring, germination, or critical habitat. effort to identify and map habitat it seed dispersal; and habitats that are Therefore, we believe that designation believed to be important for the protected from disturbance or are of critical habitat is prudent for recovery of 282 endangered and representative of the historic Amaranthus brownii, Pritchardia threatened Hawaiian plant species. The geographical and ecological remota, and Schiedea verticillata. The HPPRCC identified these areas on most distributions of a species. reasons why we believe designation of of the islands in the Hawaiian chain, Much of what is known about the critical habitat is prudent for Sesbania and in 1999, we published them in our specific physical and biological tomentosa and Mariscus pennatiformis Recovery Plan for the Multi-Island requirements of Amaranthus brownii,
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Mariscus pennatiformis, Pritchardia existing population sites and potentially be considered when they have reached remota, Schiedea verticillata, and suitable unoccupied habitat within their a minimum of 100 mature individuals Sesbania tomentosa is described in the historic range. per colony for Pritchardia remota, a ‘‘Background’’ section of this final rule. The lack of detailed scientific data on minimum of 300 mature individuals per All areas designated as critical habitat the life history of these plant species colony for Schiedea verticillata, and a are within the historical range or have makes it impossible for us to develop a minimum of 500 mature individuals for been identified in the recovery plans for robust quantitative model (e.g., a Amaranthus brownii. Each colony these species as sites for conservation of population viability analysis) to identify should be stable or increasing for a one or more of the five species at issue, the optimal number, size, and location minimum of five consecutive years. If and contain one or more of the physical of critical habitat units needed to the establishment of additional colonies or biological features (primary achieve recovery (Beissinger and on an island other than Nihoa proves constituent elements) essential for the Westphal 1998; Burgman et al. 2001; infeasible for these taxa, they may be conservation of the species. Ginzburg et al. 1990; Karieva and considered recovered if five colonies of As described in the discussions for Wennergren 1995; Menges 1990; each species reach the population each of the five species for which we are Murphy et al. 1990; Taylor 1995). At targets described above (Service 1998d). designating critical habitat, we are this time, and consistent with the listing The critical habitat designations reflect defining the primary constituent of these species and their recovery these exceptions for these species. elements on the basis of the habitat plans, the best available information By adopting these specific recovery features of the areas from which the leads us to conclude that the current objectives, the adverse effects of genetic plant species are reported, as described size and distribution of the extant inbreeding and random environmental by the type of plant community (e.g., populations are not sufficient to expect events and catastrophes, such as Pritchardia remota mesic coastal forest), a reasonable probability of long-term landslides, hurricanes, or tsunamis, associated native plant species, locale survival and recovery of these plant which could destroy a large percentage information (e.g., steep rocky cliffs, species. We used the same information, of a species at any one time, may be talus slopes, gulches), and elevation. along with the opinions of scientists reduced (Menges 1990; Podolsky 2001). The habitat features provide the familiar with these species, to identify These recovery objectives were initially ecological components required by the potentially suitable habitat within the developed by the HPPRCC and are plant. The type of plant community and known historic range of each species. found in all of the recovery plans for associated native plant species indicate The recovery goals stated in the these species. While they are expected specific microclimate (localized recovery plans for these species include to be further refined as more climatic) conditions, retention and the following: Establishment of 8 to 10 information on the population biology availability of water in the soil, soil populations with a minimum of 300 of each species becomes available, the microorganism community, and mature, reproducing individuals per justification for these objectives is found nutrient cycling and availability. The population for Mariscus pennatiformis in the current conservation biology locale indicates information on soil and Sesbania tomentosa distributed literature addressing the conservation of type, elevation, rainfall regime, and among the islands of each species rare and endangered plants and animals temperature. Elevation indicates known historic range (Service 1999). For (Beissinger and Westphal 1998; information on daily and seasonal purposes of this discussion, a Burgman et al. 2001; Falk et al. 1996; temperature and sun intensity. population, as defined in the recovery Ginzburg et al. 1990; Hendrix and Kyhl Therefore, the descriptions of the plan for these species, is a unit in which 2000; Karieva and Wennergren 1995; physical elements of the locations of the individuals could be regularly cross- Luijten et al. 2000; Meffe and Carroll each of these species, including habitat pollinated and influenced by the same 1996; Menges 1990; Murphy et al. 1990; type, plant communities associated with small-scale events (such as landslides), Podolsky 2001; Quintana-Ascencio and the species, location, and elevation, as and which contains a minimum of 300 Menges 1996; Taylor 1995; Tear et al. described in the SUPPLEMENTARY mature, reproducing individuals for 1995; Wolf and Harrison 2001). The INFORMATION: Discussion of Plant Taxa these short-lived perennial species overall goal of recovery in the short- section above, constitute the primary (Service 1999). term is a successful population that can constituent elements for these species in Within the five species at issue, there carry on basic life history processes, the NWHI. are three exceptions to this general such as establishment, reproduction, recovery goal of 8 to 10 populations for D. Criteria Used To Identify Critical and dispersal, at a level where the species that are believed to be very probability of extinction is low. In the Habitat narrowly distributed. The recovery goals long-term, the species and its The Service considered a number of for Amaranthus brownii, Pritchardia populations should be at a reduced risk factors in the selection and proposal of remota, and Schiedea verticillata of extinction and be adaptable to specific boundaries for critical habitat. include one to three additional colonies environmental change through For each, the overall recovery strategy of each species on an island other than evolution and migration. outlined in the recovery plans includes: Nihoa (Service 1998d). In the case of Many aspects of species life history (1) Stabilization of existing wild Pritchardia remota, Laysan Island are considered to determine guidelines populations, (2) protection and should be considered, since a palm that for species’ interim stability and management of habitat, (3) enhancement may have been this species formerly recovery, including longevity, breeding of existing small populations and occurred there. For Amaranthus brownii system, growth form, fecundity, ramet (a reestablishment of new populations and Schiedea verticillata, Necker Island plant that is an independent member of within historic range or within areas should be considered since it is adjacent a clone) production, survivorship, seed identified in the recovery plans for to Nihoa, has similar habitat, and is longevity, environmental variation, and conservation of the species, and (4) protected as a U.S. Fish and Wildlife successional stage of the habitat. research on species biology and ecology Service refuge (Service 1998d). Should Hawaiian species are generally poorly (Service 1998d, 1999). Thus, the long- establishment of one to three colonies of studied, and the only one of these term recovery of these species is any or all of these taxa on an island characteristics that can be uniformly dependent upon the protection of other than Nihoa occur, delisting may determined for all Hawaiian plant
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species is longevity (i.e., long-lived critical habitat unit could result in an —The factors that led to the listing of perennial, short-lived perennial, and increase in the risk that the entire listed the species, as described in the final annual). In general, long-lived woody species may not survive and recover. rules for listing each of the species. perennial species would be expected to Similarly, actions that eliminate, or For all or nearly all endangered plants be viable at population levels of 50 to reduce the function of, a primary in the NWHI, the major threats 250 individuals per population, while constituent element could result in an include adverse impacts due to short-lived perennial species would be increase in the risk of adverse nonnative plants and invertebrates, viable at population levels of 1,500 to modification of critical habitat. seed or fruit predation by rats and 2,500 individuals or more per Due to the reduced size of suitable mice, and fire (USFWS 1998d, 1999; population. The HPPRCC revised these habitat areas for these Hawaiian plant 59 FR 56333; 61 FR 43178). population numbers for Hawaiian plant species, they are more susceptible to the —The recommendations from the species due to the restricted distribution variations and weather fluctuations HPPRCC in their 1998 report to the of suitable habitat and the likelihood of affecting quality and quantity of Service (‘‘Habitat Essential to the smaller genetic diversity of several available habitat, as well as direct Recovery of Hawaiian Plants’’). —The management actions needed for species that evolved from a single pressure from hundreds of species of introduction. For recovery of Hawaiian assurance of survival and ultimate nonnative plants and animals. plants, the HPPRCC recommended a recovery of Hawaii’s endangered Establishing and conserving the specific general recovery guideline of 100 plants. These actions are described in target number of populations or colonies mature, reproducing individuals per the Service’s recovery plans for these on one or more islands within the population for long-lived perennial five species (USFWS 1998d, 1999) historic range of the species will species, 300 mature, reproducing and in the 1998 HPPRCC report to the provide each species with a reasonable individuals per population for short- Service (HPPRCC 1998). These actions expectation of persistence and eventual lived perennial species, and 500 mature, include, but are not limited to, the recovery, even with the high potential reproducing individuals per population following: (1) Nonnative plant that one or more of these populations for annual species (HPPRCC 1994). control; (2) rodent control; (3) will be eliminated by normal or random invertebrate pest control; (4) fire The HPPRCC recommended the adverse events, such as the hurricanes conservation and establishment of 8 to control; (5) maintenance of genetic which occurred in 1982 and 1992 on the material of the endangered plants 10 populations of multi-island plant island of Kauai, fires, and nonnative species and establishment of additional species; (6) propagation, plant invasions (HPPRCC 1994; Luijten reintroduction, and/or augmentation colonies on other islands for Nihoa et al. 2000; Mangel and Tier 1994; Pimm plant species in order to address the of existing populations into areas et al. 1998; Stacey and Taper 1992). deemed essential for the recovery of numerous risks to the long-term survival Based upon this information, we and conservation of these species. these species; (7) ongoing conclude that designation of adequate management of the wild, outplanted Although absent the detailed suitable habitat to meet recovery goals information inherent to population (the planting of propagated plants for these five plant species is essential (material) into the wild)), and viability analysis models (Burgman et to give each of the species a reasonable al. 2001), this approach employs two augmented populations; (8) habitat likelihood of long-term survival and management and restoration in areas widely recognized and scientifically recovery. accepted goals for promoting viable deemed essential for the recovery of populations of listed species: (1) The All currently or historically occupied these species; and (9) monitoring of creation or maintenance of multiple sites or sites identified as conservation the wild, outplanted, and augmented populations so that a single or series of areas within the recovery plans for these populations. catastrophic events cannot destroy the species, containing one or more of the In general, taking all of the above entire listed species (Luijten et al. 2000; primary constituent elements recommended management actions into Menges 1990; Quintana-Ascencio and considered essential to the conservation account, the following management Menges 1996); and (2) increasing the of the five plant species were examined actions are ranked in order of size of each population in the respective to determine if special management importance. It should be noted, critical habitat units to a level where the considerations or protection are however, that, on a case-by-case basis, threats of genetic, demographic, and required. We reviewed all available some of these actions may rise to a normal environmental uncertainties are management information on these higher level of importance for a diminished (Hendrix and Kyhl 2000; plants at these sites including published particular species or area, depending on Luijten et al. 2000; Meffe and Carroll and unpublished reports, surveys, and the biological and physical 1996; Podolsky 2001; Service 1997; Tear plans; internal letters, memos, trip requirements of the species and the et al. 1995; Wolf and Harrison 2001). In reports; and, section 7 consultations. location(s) of the individual plants: (1) general, the larger the number of Additionally, we contacted staff of the Nonnative plant control; (2) Rodent populations (or colonies) and the larger HINWR to discuss their current control; (3) Invertebrate pest control; (4) the size of each population (or colony), management for these plants on national Fire control; (5) Maintenance of genetic the lower the probability of extinction wildlife refuge lands. material of the endangered plant (Meffe and Carroll 1996; Raup 1991). Pursuant to the definition of critical species; (6) Propagation, reintroduction, This basic conservation principle of habitat in section 3 of the Act, the and/or augmentation of existing redundancy when applied to Hawaiian primary constituent elements as found populations into areas deemed essential plant species reduces the threats in any area so designated must require for the recovery of the species; (7) represented by a fluctuating ‘‘special management considerations or Ongoing management of the wild, environment and offers the species a protections.’’ In determining and outplanted, and augmented populations; greater likelihood of achieving long- weighing the relative significance of the (8) Maintenance of natural pollinators term survival and recovery. Conversely, threats that would need to be addressed and pollinating systems, when known; loss of one or more of the plant in management plans or agreements, we (9) Habitat management and restoration populations (colonies) within any considered the following: in areas deemed essential for the
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recovery of the species; (10) Monitoring special management or protection for on which the species are found or were of the wild, outplanted, and augmented the five species for which we have historically found. populations; (11) Rare plant surveys; designated critical habitat. Critical habitat is not designated for and (12) Control of human activities/ In summary, the long-term Cenchrus agrimonioides in the NWHI access. conservation of Hawaiian plant species for the following reasons. In the NWHI, All five species of plants are known requires the designation of critical this taxon is historically known from from Federal lands within the HINWR. habitat units on one or more of the only Laysan and Midway Islands, and Management of the HINWR has been Hawaiian islands with suitable habitat Kure Atoll. It has not been reported on guided by the 1986 HINWR Master in accordance with species-specific Laysan and Midway for over 70 and 100 Plan/Environmental Impact Statement, recovery goals as outlined in adopted years, respectively. A permanent year- which places primary emphasis on recovery plans. Some of this designated round camp on Laysan, staffed by paid protecting and enhancing refuge critical habitat is currently unoccupied employees and volunteers, conducts wildlife resources, particularly by these species but in order to recover periodic monitoring of both native and threatened and endangered species the species, it is essential to conserve nonnative plant species, and Cenchrus (USFWS 1986). This plan does not suitable habitat in these unoccupied agrimonioides has not been seen during specifically document management units. This, in turn, will allow for the these monitoring efforts (Morin and actions that maintain or enhance establishment of additional populations Conant 1998). On Midway, Cenchrus populations of endangered plants or through natural recruitment or managed agrimonioides was not seen during the their habitat on the islands of the reintroduction. Establishment of these most recent botanical surveys HINWR. We are aware that current additional populations (colonies) will conducted in 1995 and 1999 (Chris management actions within HINWR for increase the likelihood that the species Swenson, Service, pers. comm., 2002). these species include monitoring of will survive and recover in the face of Cenchrus agrimonioides has not been populations and potential pests, and normal and stochastic events (Mangel seen on Kure Atoll for over 20 years control or eradication of some alien and Tier 1994; Pimm et al., 1998; Stacey even though DOFAW conducts annual plants (E. Flint, pers. comm., 2000; and Taper 1992). seabird surveys and a botanical survey Morin and Conant 1998; Shultz 2000; In this rule, we have defined the was conducted there as recently as 2001 USFWS 1998d). However, funding primary constituent elements based on (DOFAW 2001). In addition, no viable limitations and the difficulty of travel the general habitat features of the areas genetic material of this the specific logistics allow only a maximum of one from which the plants are reported, variety that occurs in the NWHI is short visit per year to Nihoa Island, and such as the type of plant community, known to exist. The rediscovery of less frequent visits to Necker. the associated native plant species, the currently unknown individual plants on Morin and Conant’s draft ‘‘Laysan physical location (e.g., steep rocky cliffs, these three islands and atolls is believed Island Ecosystem Restoration Plan’’ talus slopes), and elevation. The areas to be extremely unlikely because we (1998), a long-term planning document we are designating as critical habitat believe this perennial plant would have that was developed as an integrated provide some or all of the habitat been seen during these surveys. approach to managing the entire biota of components essential for the Although genetic material of the closely Laysan Island, outlines conservation conservation of the five plant species. related Cenchrus agrimonioides var. management actions for the endangered Our approach to delineating critical agrimonioides exists, this variety is plant species on Laysan. These habitat units was applied in the known only from mountainous habitat conservation management actions following manner: on Oahu, which is very different from include the prevention of new plant or (1) Critical habitat was proposed and the habitat on the NWHI where animal introductions to the island, will be designated on an island-by- Cenchrus agrimonioides var. restoration of the Laysan Island island basis for ease of understanding laysanensis occurred. We would not use ecosystem that was present prior to for landowners and the public, for ease var. agrimonioides for restoration major human-caused habitat of conducting the public hearing purposes in the NWHI because this modification, control/eradication of process, and for ease of conducting variety is not known from the NWHI nonnative species, reintroduction of public outreach. In Hawaii, landowners and its preferred habitat is not available native species which are currently and the public are most interested and in the NWHI. extinct on the island, and establishment affected by issues centered on the island Following publication of the proposed of periodic comprehensive ecosystem on which they reside. critical habitat rules for the 245 monitoring (Morin and Conant 1998). A (2) We focused on designating units Hawaiian plants (67 FR 3940, 67 FR permanent year-round camp on Laysan, representative of the known current and 9806, 67 FR 15856, 67 FR 16492, 67 FR staffed by paid employees and historical geographic and elevation 34522, 67 FR 36968, 67 FR 37108), some volunteers, has enabled some control of range of each species; and of which were revised, we reevaluated nonnative plant species, propagation (3) Critical habitat units were proposed critical habitat for Mariscus and outplanting of native plants for designed to allow for expansion of pennatiformis and Sesbania tomentosa, restoration efforts, and periodic existing wild populations and Statewide, using the recovery guidelines monitoring of both native and nonnative reestablishment of wild populations to determine if we had inadvertently plant species (E. Flint, pers. comm., within the historic range, or within sites proposed for designation too much or 2000; Morin and Conant 1998). In the identified as conservation areas in the not enough habitat to meet the essential future, the plan may serve as a guiding recovery plans for these species. recovery goals for these species document for endangered plant species For Amaranthus brownii, Mariscus distributed among the islands of its management on other NWHI as well. pennatiformis, Prichardia remota, known historic range (HINHP Database However, because the plan is not fully Schiedea verticillata, and Sesbania 2000, 2001; Wagner et al. 1990, 1999). funded or implemented yet, and tomentosa, currently and historically We then further evaluated areas of the because is has not yet been adopted for occupied habitat was examined in proposed critical habitat for all five the other islands on which these plants identifying and designating critical species for the existing quality of the occur, we know of no areas in the habitat. Critical habitat boundaries were primary constituent elements (i.e., intact HINWR at this time that do not require delineated to include the entire island native plant communities and
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predominance of associated native critical habitat. For Amaranthus constituent elements in adjacent critical plants versus nonnative plants), brownii, Pritchardia remota, and habitat. potential as a recovery area, and current Schiedea verticillata, taxa known only In summary, the critical habitat areas or expected management of known from the NWHI, we determined that described below constitute our best threats (e.g., weed control and critical habitat on the islands of Laysan assessment of the physical and nonnative insect, slug, and snail and Nihoa was essential for their biological features needed for the control). Areas that contain high quality conservation because it contains primary constituent elements, are zoned occupied habitat important for the conservation of Amaranthus brownii, or managed specifically for expansion of current colonies and the Mariscus pennatiformis, Pritchardia conservation, and have ongoing or establishment of additional colonies. In remota, Schiedea verticillata, and expected threat abatement actions were addition, these areas may require Sesbania tomentosa and the special considered the most essential within special management considerations or management needs of these species, and these areas, and we selected adequate protection in order to address the are based on the best scientific and area to meet recovery goals (e.g., 8 to 10 threats to each species. commercial information available and populations). Within the critical habitat boundaries, described above. We publish this final Of the proposed critical habitat for section 7 consultation is generally rule acknowledging that we have Mariscus pennatiformis and Sesbania necessary, and adverse modification incomplete information regarding many tomentosa, areas that did not contain could occur only if the primary of the primary biological and physical high quality constituent elements and constituent elements are affected. requirements for these species. that may provide habitat for populations Therefore, not all activities within However, both the Act and the relevant above the recovery goal of 8 to 10 critical habitat would trigger an adverse court orders require us to proceed with populations were determined not modification conclusion. In addition, designation at this time based on the essential for the conservation of the existing manmade features and best information available. As new species and excluded from final structures within boundaries of the information accrues, we may consider designation. However, all of the mapped unit do not contain one or more reevaluating the boundaries of areas that proposed critical habitat for Sesbania of the primary constituent elements and tomentosa on Nihoa and Necker and all would be excluded under the terms of warrant critical habitat designation. of the proposed critical habitat on this proposed regulation. Federal The approximate areas of the Laysan for Mariscus pennatiformis was actions limited to those areas would not designated critical habitat by considered essential for conservation of trigger a section 7 consultation unless landownership or jurisdiction are these species and is designated as they affect the species or primary shown in Table 4.
TABLE 4.—APPROXIMATE CRITICAL HABITAT DESIGNATED AREA BY UNIT AND LANDOWNERSHIP OR JURISDICTION, NORTHWESTERN HAWAIIAN ISLANDS, HAWAII
Unit name State/local Private Federal Total
Nihoa 1—Amaranthus brownii ...... none ...... none ...... 69 ha (171 ac) ...... 69 ha (171 ac) Nihoa 2—Pritchardia remota ...... none ...... none ...... 69 ha (171 ac) ...... 69 ha (171 ac) Nihoa 3—Scheidea verticillata ...... none ...... none ...... 69 ha (171 ac) ...... 69 ha (171 ac) Nihoa 4—Sesbania tomentosa ...... none ...... none ...... 69 ha (171 ac) ...... 69 ha (171 ac) Necker 1—Sesbania tomentosa ...... none ...... none ...... 19 ha (46 ac) ...... 19 ha (46 ac) Laysan 1—Mariscus pennatiformis ...... none ...... none ...... 405 ha (1,002 ac) ...... 405 ha (1,002 ac) Laysan 2—Pritchardia remota ...... none ...... none ...... 405 ha (1,002 ac) ...... 405 ha (1,002 ac)
Grand Total ...... none ...... none ...... 493 ha (1,219 ac) ...... 493 ha (1,219 ac)
Critical habitat includes habitat for area designated as critical habitat is Nihoa 2—Pritchardia remota these five species on the islands of considered to be the most likely to This unit is critical habitat for Nihoa, Necker, and Laysan. Lands contain a viable seed bank of Pritchardia remota and is 69 ha (171 ac) designated as critical habitat are under Amaranthus brownii. The habitat Federal ownership and managed by the on federally owned land. It includes the features contained in this unit that are entire island, which is part of the Department of the Interior (the Service). essential for this species include, but are The designated lands have been divided HINWR. This unit, which contains at not limited to, shallow soil and rocky least 4 colonies that consist of at least into seven units. A brief description of outcrops in fully exposed locations that each unit is presented below. 1,074 individuals (including seedlings) contain one or more of the following of P. remota, provides habitat that is Descriptions of Critical Habitat Units associated native plant species: essential to the conservation of 100 Chenopodium oahuense, Eragrostis Nihoa 1—Amaranthus brownii mature, reproducing individuals of this variabilis, Ipomoea indica, Ipomoea long-lived perennial species. The This unit is critical habitat for pes-caprae ssp. brasiliensis, Panicum habitat features contained in this unit Amaranthus brownii and is 69 ha (171 torridum, Scaevola sericea, Schiedea that are essential for this species ac) on federally owned land. It includes verticillata, Sicyos pachycarpus, Sida include, but are not limited to, a coastal the entire island, which is part of the fallax, and Solanum nelsonii. This forest community that contains one or HINWR. The unit is currently critical habitat unit is essential to the more of the following associated native unoccupied but provides habitat that is conservation of the species because it plant species: Chenopodium oahuense, essential to the conservation of up to supports habitat for the re-establishment Sesbania tomentosa, Solanum nelsonii, 500 reproducing individuals of this of populations of this endemic species. and Sida fallax. This unit is essential to annual species endemic to Nihoa. The the conservation of the species because
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it supports the only extant wild entire island, which is part of the long-lived perennial species. The occurrence of this species and is HINWR. The unit contains Annexation habitat features contained in this unit geographically separated from the and Summit Hills, is occupied by one that are essential for this species designated critical habitat unit on population of undetermined size, and include, but are not limited to, the Laysan Island to avoid destruction by provides habitat that is essential for the coastal strand community that contains one naturally occurring catastrophic conservation of up to one population of one or more of the following associated event. 300 mature, reproducing individuals of native plant species: Chenopodium this short-lived perennial species. The Nihoa 3—Schiedea verticillata oahuense and Solanum nelsonii. habitat features contained in this unit This unit is currently unoccupied but This unit is critical habitat for that are essential for this species is essential to the conservation of Schiedea verticillata and is 69 ha (171 include, but are not limited to, shallow Pritchardia remota because it provides ac) on federally owned land. It includes sandy soils on beaches and dunes in habitat for the establishment of a new the entire island, which is part of the Chenopodium oahuense coastal dry colony in order to achieve recovery HINWR. The unit provides habitat that shrubland that contain one or more of goals for the species. This unit is also is essential to the conservation of 300 the following associated native plant geographically separated from the mature, reproducing individuals of this species: Sida fallax, Scaevola sericea, occupied designated critical habitat unit short-lived perennial and, based on Solanum nelsonii, and Pritchardia on Nihoa, which serves to avoid the surveys conducted in 1996, contained at remota. This unit is essential to the destruction of both colonies by one least 11 colonies and a total of at least conservation of Sesbania tomentosa naturally occurring catastrophic event. 372 individuals. The habitat features because it supports the only extant contained in this unit that are essential colony of the species on Necker. This Effects of Critical Habitat Designation for this species include, but are not unit also includes habitat that is Section 7 Consultation limited to, rocky scree, soil pockets, and important for the expansion of the Section 7(a) of the Act requires cracks on coastal cliff faces and in present population, which is currently Federal agencies, including the Service, Pritchardia remota coastal mesic forest considered not viable. This unit is to ensure that actions they fund, that contain one or more of the located at the westernmost range of this following associated native species and multi-island species and is authorize, or carry out are not likely to lichens: Eragrostis variabilis, Rumex geographically separated from destroy or adversely modify critical albescens, and Tribulus cistoides. This designated critical habitat on other habitat. Destruction or adverse critical habitat unit is essential to the islands to avoid destruction by one modification of critical habitat occurs conservation of the species because it naturally occurring catastrophic event. when a Federal action directly or supports extant colonies of S. indirectly alters critical habitat to the verticillata and includes habitat that is Laysan 1—Mariscus pennatiformis extent that it appreciably diminishes the important to the expansion of the This unit is critical habitat for value of critical habitat for the present population on Nihoa. Mariscus pennatiformis and is conservation of the species. Individuals, approximately 405 ha (1,002 ac) in size, organizations, States, local governments, Nihoa 4—Sesbania tomentosa which includes a 52 ha (129 ac) and other non-Federal entities are This unit is critical habitat for hypersaline lagoon in its center. It is all directly affected by the designation of Sesbania tomentosa and is 69 ha (171 on Federal land and is part of the critical habitat when their actions occur ac) on federally owned land. It includes HINWR. The unit is occupied by one on Federal lands, require a Federal the entire island, which is part of the occurrence of approximately 200 permit, license, or other authorization, HINWR. The unit contains habitat individuals and provides habitat or involve Federal funding. essential to the conservation of 300 essential to the conservation of 300 Section 7(a) of the Act requires mature, reproducing individuals of this reproducing individuals. The habitat Federal agencies, including the Service, short-lived perennial and contains one features contained in this unit that are to evaluate their actions with respect to island-wide population of at least 1,000 essential for this species include, but are any species that is proposed or listed as individuals. The habitat features not limited to, coastal sandy substrate endangered or threatened, and with contained in this unit that are essential that contains one or more of the respect to its critical habitat, if any is for this species include, but are not following associated native plant designated or proposed. Regulations limited to, shallow sandy soils on species: Cyperus laevigatus, Eragrostis implementing this interagency beaches and dunes in Chenopodium variabilis, and Ipomoea sp. This critical cooperation provision of the Act are oahuense coastal dry shrubland that habitat unit is essential to the codified at 50 CFR part 402. Section contain one or more of the following conservation of Mariscus pennatiformis 7(a)(4) of the Act requires Federal associated native plant species: ssp. bryanii because it supports the only agencies (action agency) to confer with Pritchardia remota, Scaevola sericea, extant colony, which is currently us on any action that is likely to Sida fallax, and Solanum nelsonii. This considered not viable. It also contains jeopardize the continued existence of a critical habitat unit is essential to the habitat that is important to the species proposed for listing or result in conservation of the species because it expansion of this taxon. destruction or adverse modification of supports extant colonies of Sesbania proposed critical habitat. Laysan 2—Pritchardia remota tomentosa and is also geographically If a species is listed or critical habitat separated from designated critical This unit is critical habitat for is designated, section 7(a)(2) of the Act habitat on other islands to avoid Pritchardia remota and is approximately requires Federal agencies to ensure that destruction by one naturally occurring 405 ha (1,002 ac) in size, which actions they authorize, fund, or carry catastrophic event. includes a 52 ha (129 ac) hypersaline out are not likely to jeopardize the lagoon in its center. It is all on Federal continued existence of such a species or Necker 1—Sesbania tomentosa land and is part of the HINWR. The unit destroy or adversely modify its critical This unit is critical habitat for is currently unoccupied but provides habitat. If a Federal action may affect a Sesbania tomentosa and is 19 ha (46 ac) habitat essential to the conservation of listed species or its critical habitat, the on federally owned land. It includes the 100 reproducing individuals of this responsible Federal action agency must
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enter into consultation with us. Through (1) Activities that appreciably degrade Cir. 2001). The draft analysis was made this consultation, the action agency or destroy habitat defined in the available for review on September 12, would ensure that the permitted actions discussion of the primary constituent 2002 (67 FR 57784). We accepted do not destroy or adversely modify elements including, but not limited to: comments on the draft analysis until the critical habitat. Clearing or cutting of native live trees comment period closed on October 15, Regulations at 50 CFR 402.16 require and shrubs, whether by burning or 2002. Federal agencies to reinitiate formal mechanical, chemical, or other means No comments addressing the consultation on previously reviewed (e.g., woodcutting or herbicide economic analysis were received, and actions under certain circumstances, application); introducing or enabling the no information has come to light that including instances where critical spread of nonnative species; and taking might change the conclusions of the habitat is subsequently designated and actions that pose a risk of fire; draft economic analysis. Therefore, the the Federal agency has retained (2) Construction activities by the U.S. draft analyses constitutes the final discretionary involvement, or control Department of the Interior (the Service); economic analysis for this rule. The has been retained or is authorized by (3) Research activities funded by the economic analysis estimates that, over law. Consequently, some Federal U.S. Department of the Interior (the the next 10 years, the designation may agencies may request reinitiation of Service) or National Oceanic and result in potential economic effects of consultation or conferencing with us on Atmospheric Administration (National approximately $30,800, and that actions for which formal consultation Marine Sanctuaries Program, National economic benefits from the designation has been completed, if those actions Marine Fisheries Service); and of critical habitat would not be may affect designated critical habitat or (4) Activities not mentioned above significant. A more detailed discussion adversely modify or destroy proposed funded or authorized by the Department of our economic analysis is contained in critical habitat. of the Interior (U.S. Geological Survey, the draft economic analysis and the If we issue a biological opinion National Park Service), Department of addendum. Both documents are concluding that a project is likely to Commerce (National Oceanic and included in our administrative record result in the destruction or adverse Atmospheric Administration), Western and are available for inspection at the modification of critical habitat, we also Pacific Regional Fisheries Council, or Pacific Islands Fish and Wildlife Office provide ‘‘reasonable and prudent any other Federal Agency. (see ADDRESSES section). We do not alternatives’’ to the project, if any are If you have questions regarding believe the economic impacts of this identifiable. Reasonable and prudent whether specific activities will likely designation, which would result alternatives are defined at 50 CFR constitute adverse modification of primarily from section 7 consultations 402.02 as alternative actions identified critical habitat, contact the Field on FWS, NMS, and private research during consultation that can be Supervisor, Pacific Islands Ecological activities, would be significant. implemented in a manner consistent Services Field Office (see ADDRESSES Therefore, no critical habitat units in the with the intended purpose of the action, section). Requests for copies of the proposed rule were excluded or that are consistent with the scope of the regulations on listed wildlife and plants, modified due to economic impacts. Federal agency’s legal authority and and inquiries about prohibitions and As described above, section 4(b)(2) of jurisdiction, that are economically and permits, may be addressed to the U.S. the Act also requires us to consider technologically feasible, and that the Fish and Wildlife Service, Division of other relevant impacts, in addition to Director believes would avoid the Endangered Species, 911 N.E. 11th Ave., economic impacts, of designating likelihood of resulting in destruction or Portland, OR 97232–4181 (telephone critical habitat. No critical habitat units adverse modification of critical habitat. 503/231–2063; facsimile 503/231–6243). were excluded or modified due to non- Reasonable and prudent alternatives can Economic Analysis economic impacts. vary from slight project modifications to extensive redesign or relocation of the Exclusions Under Section 4(b)(2) Required Determinations project. Costs associated with Section 4(b)(2) of the Act requires us Regulatory Planning and Review implementing a reasonable and prudent to designate critical habitat on the basis alternative are similarly variable. of the best scientific and commercial In accordance with Executive Order Activities on Federal lands that may information available, and to consider 12866, the Office of Management and affect critical habitat of Amaranthus the economic and other relevant Budget (OMB) has determined that this brownii, Mariscus pennatiformis, impacts of designating a particular area critical habitat designation is not a Pritchardia remota, Schiedea as critical habitat. We may exclude areas significant regulatory action. This rule verticillata, or Sesbania tomentosa will from critical habitat upon a will not have an annual economic effect require section 7 consultation. determination that the benefits of such of $100 million or more or adversely Section 4(b)(8) of the Act requires us exclusions outweigh the benefits of affect any economic sector, to briefly describe and evaluate in any specifying such areas as critical habitat. productivity, competition, jobs, the proposed or final regulation that We cannot exclude areas from critical environment, or other units of designates critical habitat those habitat when the exclusion will result in government. This designation will not activities involving a Federal action that the extinction of the species concerned. create inconsistencies with other may adversely modify such habitat or agencies’ actions or otherwise interfere that may be affected by such Economic Impacts with an action taken or planned by designation. We note that such activities Following the publication of the another agency. It will not materially may also jeopardize the continued proposed critical habitat designation on affect entitlements, grants, user fees, existence of the species. May 14, 2002, a draft economic analysis loan programs, or the rights and Activities that, when carried out, was conducted to estimate the potential obligations of their recipients. Finally, funded, or authorized by a Federal economic impact of the designation, in this designation will not raise novel agency, may directly or indirectly accordance with recent decisions in the legal or policy issues. Accordingly, destroy or adversely modify critical N.M. Cattlegrowers Ass’n v. U.S. Fish OMB has not reviewed this final critical habitat include, but are not limited to: and Wildlife Serv., 248 F.3d 1277 (10th habitat designation.
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Regulatory Flexibility Act (5 U.S.C. 601 50,000 residents, as well as small productivity, innovation, or the ability et seq.) businesses. Small businesses include of U.S.-based enterprises to compete Under the Regulatory Flexibility Act manufacturing and mining concerns with foreign-based enterprises. Refer to (RFA) (as amended by the Small with fewer than 500 employees, the economic analysis for a discussion Business Regulatory Enforcement Act wholesale trade entities with fewer than of the effects of this determination. 100 employees, retail and service (SBREFA) of 1996), whenever an agency Executive Order 13211 is required to publish a notice of businesses with less than $5 million in annual sales, general and heavy On May 18, 2001, the President issued rulemaking for any proposed or final Executive Order 13211, on regulations rule, it must prepare and make available construction businesses with less than $27.5 million in annual business, that significantly affect energy supply, for public comment a regulatory special trade contractors doing less than distribution, and use. Executive Order flexibility analysis that describes the $11.5 million in annual business, and 13211 requires agencies to prepare effects of the rule on small entities (i.e., agricultural businesses with annual Statements of Energy Effects when small businesses, small organizations, sales less than $750,000. The RFA/ undertaking certain actions. According and small government jurisdictions). SBREFA defines ‘‘small organization’’ as to OMB, this rule is not a significant However, no regulatory flexibility any not-for-profit enterprise that is regulatory action under Executive Order analysis is required if the head of the independently owned and operated and 12866, and we do not expect it to agency certifies the rule will not have a is not dominant in its field (5 U.S.C. significantly affect energy production significant economic impact on a 601). supply and distribution facilities substantial number of small entities. For the purposes of the RFA/SBREFA, because no energy production, supply, SBREFA amended the RFA to require Federal agencies (e.g., the Service, U.S. and distribution facilities are included Federal agencies to provide a statement Geological Survey, National Park within designated critical habitat. of the factual basis for certifying that a Service, National Oceanic and Further, for the reasons described in the rule will not have a significant Atmospheric Administration, National economic analysis, we do not believe economic impact on a substantial Marine Fisheries Service, and Western the designation of critical habitat for the number of small entities. Pacific Regional Fisheries Council) are five NWHI plants will affect future SBREFA does not explicitly define not considered small governments and energy production. Therefore, this either ‘‘substantial number’’ or thus are not small entities. State action is not a significant energy action, ‘‘significant economic impact.’’ governments are not considered small and no Statement of Energy Effects is Consequently, to assess whether a governmental entities and thus DLNR is required. ‘‘substantial number’’ of small entities is not considered a small entity. The affected by this designation, this University of Hawaii is a large State Unfunded Mandates Reform Act (2 analysis considers the relative number university system, so it is also not a U.S.C. 1501 et seq.) of small entities likely to be impacted in small entity. The Bishop Museum, In accordance with the Unfunded the area. Similarly, this analysis which may sponsor research, is not Mandates Reform Act (2 U.S.C. 1501 et considers the relative cost of likely to be considered a small seq.): compliance on the revenues/profit organization because it is the largest (a) This rule will not ‘‘significantly or margins of small entities in determining museum in the State and thus is uniquely’’ affect small governments. A whether or not entities incur a dominant in its field. Small Government Agency Plan is not ‘‘significant economic impact.’’ Only Thus, none of the entities potentially required. All of the land being small entities that are expected to be impacted by the designation of critical designated as critical habitat in this rule directly affected by the designation are habitat are likely to be considered a is owned by the Federal government considered in this portion of the small entity under the RFA/SBREFA. and is managed as a National Wildlife analysis. This approach is consistent For these reasons, we are certifying that Refuge by the Service. Small with several judicial opinions related to the designation of critical habitat for governments will not be affected unless the scope of the RFA. (Mid-Tex Electric Amaranthus brownii, Mariscus they propose an action affecting the Co-Op, Inc. v. F.E.R.C. and America pennatiformis, Pritchardia remota, refuge and requiring Federal funds, Trucking Associations, Inc. v. EPA.) Schiedea verticillata, and Sesbania permits, or other authorizations. Any In today’s rule, we are certifying that tomentosa will not have a significant such activities will require that the the designation of critical habitat for the economic impact on a substantial Federal agency ensure that the action five plant species on the NWHI will not number of small entities. Therefore, a will not adversely modify or destroy have a significant effect on a substantial regulatory flexibility analysis is not designated critical habitat. number of small entities. The following required. (b) This rule will not produce a discussion explains our rationale. Federal mandate on State or local Small Business Regulatory Enforcement Federal courts and Congress have governments or the private sector of Fairness Act (5 U.S.C. 804(2)) indicated that an RFA/SBREFA analysis $100 million or greater in any year; that is appropriately limited to impacts to Under the Small Business Regulatory is, it is not a ‘‘significant regulatory entities directly regulated by the Enforcement Fairness Act (5 U.S.C. 801 action’’ under the Unfunded Mandates requirements of the regulation (Service et seq.), this rule is not a major rule. Our Reform Act. For the reasons described 2002). As such, entities not directly assessment of the economic effects of above, the designation of critical habitat regulated by the critical habitat this designation are described in the imposes no obligations on State or local designation are not considered in this economic analysis. Based on the effects governments. section of the analysis. identified in this analysis, we believe Small entities include small that this rule will not have an effect on Takings organizations, such as independent the economy of $100 million or more, In accordance with Executive Order nonprofit organizations and small will not cause a major increase in costs 12630 (‘‘Government Actions and governmental jurisdictions, including or prices for consumers, and will not Interference with Constitutionally school boards and city and town have significant adverse effects on Protected Private Property Rights’’), we governments that serve fewer than competition, employment, investment, have analyzed the potential takings
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implications of designating critical Paperwork Reduction Act of 1995 (44 five species does not involve any Tribal habitat for the five species from the U.S.C. 3501 et seq.) lands. NWHI in a takings implication This rule does not contain any References Cited assessment. The takings implications information collection requirements that assessment concludes that this final rule require OMB approval under the A complete list of all references cited does not pose significant takings Paperwork Reduction Act. An agency in this final rule is available upon implications. may not conduct or sponsor, and a request from the Pacific Islands Fish person is not required to respond to, a and Wildlife Office (see ADDRESSES Federalism collection of information unless it section). In accordance with Executive Order displays a valid OMB control number. Authors 13132, this final rule does not have National Environmental Policy Act The primary authors of this final rule significant Federalism effects. A We have determined that we do not are staff of the Pacific Islands Fish and Federalism assessment is not required. need to prepare an Environmental Wildlife Office (see ADDRESSES section). In keeping with Department of Interior Assessment and/or an Environmental List of Subjects in 50 CFR Part 17 policy, we requested information from Impact Statement as defined by the appropriate State agencies in Hawaii. National Environmental Policy Act of Endangered and threatened species, Because all of the designated critical 1969 in connection with regulations Exports, Imports, Reporting and habitat, including the unoccupied unit, adopted pursuant to section 4(a) of the recordkeeping requirements, is on Federal land, there should be no Endangered Species Act. We published Transportation. impact on State and local governments a notice outlining our reason for this Regulation Promulgation and their activities as a result of the determination in the Federal Register ■ designation of critical habitat in on October 25, 1983 (48 FR 49244). This Accordingly, we hereby amend part 17, subchapter B of chapter I, title 50 of currently unoccupied areas of the determination does not constitute a the Code of Federal Regulations as set NWHI. major Federal action significantly affecting the quality of the human forth below: Civil Justice Reform environment. PART 17—[AMENDED] In accordance with Executive Order Government-to-Government ■ 12988, the Department of the Interior’s Relationship With Tribes 1. The authority citation for part 17 continues to read as follows: Office of the Solicitor has determined In accordance with the President’s that this rule does not unduly burden memorandum of April 29, 1994, Authority: 16 U.S.C. 1361–1407; 16 U.S.C. the judicial system and does meet the ‘‘Government-to-Government Relations 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. requirements of sections 3(a) and 3(b)(2) with Native American Tribal of the Order. We have designated Governments’’ (59 FR 22951), Executive ■ 2. Amend § 17.12(h) by revising the critical habitat in accordance with the Order 13175, and the Department of the entries for Amaranthus brownii, provisions of the Endangered Species Interior’s manual at 512 DM 2, we Mariscus pennatiformis, Pritchardia Act. The rule uses standard property readily acknowledge our responsibility remota, Schiedea verticillata, and descriptions and identifies the primary to communicate meaningfully with Sesbania tomentosa under FLOWERING constituent elements within the recognized Federal Tribes on a PLANTS in the List of Endangered and designated areas to assist the public in government-to-government basis. We Threatened Plants to read as follows: have determined that there are no Tribal understanding the habitat needs of the § 17.12 Endangered and threatened plants. five plant species from the NWHI. lands essential for the conservation of these five plant species. Therefore, * * * * * designation of critical habitat for these (h) * * *
Species Historic range Family Status When Critical habitat Special Scientific name Common name listed rules
FLOWERING PLANTS Amaranthus None ...... U.S.A. (HI) ...... Amaranthaceae .... E 587 17.99(g) ...... NA brownii. Mariscus None ...... U.S.A. (HI) ...... Cyperaceae ...... E 559 17.99(a)(1), (e)(1), NA pentiformis. (g). Pritchardia remota Loulu ...... U.S.A. (HI)...... Arecaceae ...... E 587 17.99(g) ...... NA Schiedea None ...... U.S.A. (HI) ...... Caryophyllaceae ... E 587 17.99(g) ...... NA verticillata. Sesbania Ohai ...... U.S.A. (HI) ...... Fabaceae ...... E 559 17.99(a)(1), (c), NA tomentosa. (e)(1), (g). *******
■ 3. Amend § 17.99 as set forth below: § 17.99 Critical habitat; plants on the (g) Maps and critical habitat unit ■ (1) By revising the section heading to islands of Kauai, Niihau, and Molokai, HI, descriptions for the Northwestern read as follows; and and on the Northwestern Hawaiian Islands. Hawaiian Islands. The following ■ (2) By adding new paragraphs (g) and * * * * * paragraphs contain the legal (h) to read as follows: descriptions of the critical habitat units
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designated for the Northwestern shrines) and other archaeological sites Map 1 for the the general locations of Hawaiian Islands. Existing manmade do not contain one or more of the the seven critical habitat units features within boundaries of the primary constituent elements described designated for the islands of Laysan, mapped areas, such as water features, for each species in paragraphs (h) of this Nihoa, and Necker. telecommunications equipment, section and therefore are not included (1) Index map—Map 1—follows: arboreta and gardens, and heiau in the critical habitat designations. (indigenous places of worship or Coordinates are in WGS84 datum. See
(2) Nihoa 1—Amaranthus brownii— (i) Nihoa Island is located between entire island (approximately 69 ha; 171 23°3′ N. and 23°4′ N. and between ac). 161°54′ W. and 161°56′ W. (i) Nihoa Island is located between (ii) Note: Map 3 follows: 23°3′ N. and 23°4′ N. and between 161°54′ W. and 161°56′ W. (ii) Note: Map 2 follows:
(5) Nihoa 4—Sesbania tomentosa— entire island (approximately 69 ha; 171 ac). (i) Nihoa Island is located between 23°3′ N. and 23°4′ N. and between (4) Nihoa 3—Schiedea verticillata— 161°54′ W. and 161°56′ W. entire island (approximately 69 ha; 171 ac). (ii) Note: Map 5 follows: (3) Nihoa 2—Pritchardia remota— (i) Nihoa Island is located between entire island (approximately 69 ha; 171 23°3′ N. and 23°4′ N. and between ac). 161°54′ W. and 161°56′ W. (ii) Note: Map 4 follows:
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(7) Laysan 1—Mariscus pennatiformis—entire island (approximately 405 ha; 1,219 ac). (i) Laysan Island is located between 25°45′ N. and 25°47′ N. and between 171°43′ W. and 171°45′ W. (ii) Note: Map 7 follows:
(6) Necker 1—Sesbania tomentosa— entire island (approximately 18 ha; 46 ac). (i) Necker Island is located between 23°34′ N. and 23°35′ N. and between 164°41′ W. and 164°43′ W. (ii) Note: Map 6 follows:
(9) Table of protected species within each critical habitat unit for the Northwestern Hawaiian Islands.
(8) Laysan 2—Pritchardia remota— entire island (approximately 405 ha; 1,219 ac). (i) Laysan Island is located between 25°45′ N. and 25°47′ N. and between 171°43′ W. and 171°45′ W. (ii) Note: Map 8 follows:
Island Species—Occupied Species—Unoccupied
Laysan ...... Mariscus pennatiformis ...... Pritchardia remota Necker ...... Sesbania tomentosa. Nihoa ...... Pritchardia remota, Schiedea verticillata, Sesbania Amaranthus brownii tomentosa.
(h) Plants on the Northwestern critical habitat for Amaranthus brownii. associated native plant species: Hawaiian Islands; Constituent elements. On Nihoa, the currently known primary Chenopodium oahuense, Eragrostis constituent elements of critical habitat Family Amaranthaceae: Amaranthus variabilis, Ipomoea indica, Ipomoea include, but are not limited to, the brownii (NCN) pes-caprae ssp. brasiliensis, Panicum habitat components provided by: torridum, Scaevola sericea, Schiedea Nihoa 1—Amaranthus brownii, (1) Shallow soil in fully exposed verticillata, Sicyos pachycarpus, Sida identified in the legal description in locations on rocky outcrops and fallax, or Solanum nelsonii; and (2) paragraph (g) of this section, constitutes containing one or more of the following
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Elevations between 30 and 242 m (100 Family Caryophyllaceae: Schiedea (1) Coastal sandy substrate containing and 800 ft). verticillata (NCN) one or more of the following associated native plant species: Cyperus laevigatus, Family Arecaceae: Pritchardia Nihoa 3—Schiedea verticillata, Eragrostis variabilis, or Ipomoea sp.; remota (loulu) identified in the legal description in and paragraph (g) of this section, constitutes (2) Elevation of 5 m (16 ft). Nihoa 2—Pritchardia remota, and critical habitat for Schiedea verticillata. Laysan 2— Pritchardia remota, On Nihoa, the currently known primary Family Fabaceae: Sesbania identified in the legal descriptions in constituent elements of critical habitat tomentosa (ohai) paragraph (g) of this section, consitute for Schiedea verticillata include, but are Nihoa 4—Sesbania tomentosa, and critical habitat for Pritchardia remota. not limited to, the habitat components Necker 1—Sesbania tomentosa, (1) On Nihoa, the currently known provided by: identified in the legal descriptions in primary constituent elements of critical (1) Rocky scree, soil pockets, and paragraph (g) of this section, constitute habitat include, but are not limited to, cracks on coastal cliff faces and in critical habitat for Sesbania tomentosa. the habitat components provided by: Pritchardia remota coastal mesic forest On Nihoa and Necker, the currently (i) Pritchardia remota coastal forest and containing one or more of the known primary constituent elements of community and containing one or more following associated native plant critical habitat for Sesbania tomentosa include, but are not limited to, habitat of the following associated native plant species: Eragrostis variabilis, Rumex components provided by: species: Chenopodium oahuense, albescens, Tribulus cistoides, or lichens; and (1) Shallow soil on sandy beaches and Sesbania tomentosa, Sida fallax, or dunes in Chenopodium oahuense Solanum nelsonii; and (2) Elevations between 30 and 242 m (100 and 800 ft). coastal dry shrubland or mixed coastal (ii) Elevations between sea level and dry cliffs and containing one or more of 151 m (500 ft). Family Cyperaceae: Mariscus the following associated native plant (2) On Laysan Island, the currently pennatiformis (NCN) species: Pritchardia remota, Scaevola known primary constituent elements of sericea, Sida fallax, or Solanum Laysan 1—Mariscus pennatiformis, nelsonii; and critical habitat include, but are not identified in the legal description in limited to, the habitat components (2) Elevations between sea level and paragraph (g) of this section, constitutes 84 m (0 and 276 ft). provided by: critical habitat for Mariscus (i) Coastal strand habitat with pennatiformis. On Laysan Island, the Dated: April 30, 2003. Chenopodium oahuensee and Solanum currently known primary constituent Craig Manson, nelsonii; and elements of critical habitat for Mariscus Assistant Secretary for Fish and Wildlife and pennatiformis include, but are not Parks. (ii) Elevations between sea level to 12 limited to, habitat components provided [FR Doc. 03–11157 Filed 5–21–03; 8:45 am] m (0 to 40 ft). by: BILLING CODE 6560–50–P
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Part III
Department of Defense General Services Administration National Aeronautics and Space Administration 48 CFR Chapter I, et al. Federal Acquistion Circular 2001–14; Final Rules
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DEPARTMENT OF DEFENSE ACTION: Summary presentation of final DATES: For effective dates and comment rules and technical amendments. dates, see separate documents which GENERAL SERVICES follow. ADMINISTRATION SUMMARY: This document summarizes FOR FURTHER INFORMATION CONTACT: the Federal Acquisition Regulation The NATIONAL AERONAUTICS AND (FAR) rules agreed to by the Civilian FAR Secretariat, Room 4035, GS SPACE ADMINISTRATION Agency Acquisition Council and the Building, Washington, DC 20405, (202) Defense Acquisition Regulations 501–4755, for information pertaining to 48 CFR Chapter 1 Council in this Federal Acquisition status or publication schedules. For Circular (FAC) 2001–14. A companion clarification of content, contact the Federal Acquisition Circular 2001–14; analyst whose name appears in the table Introduction document, the Small Entity Compliance Guide (SECG), follows this FAC. The below in relation to each FAR case or subject area. Please cite FAC 2001–14 AGENCIES: Department of Defense (DoD), FAC, including the SECG, is available and specific FAR case number(s). General Services Administration (GSA), via the Internet at http://www.arnet.gov/ Interested parties may also visit our and National Aeronautics and Space far. Administration (NASA). Web site at http://www.arnet.gov/far.
Item Subject FAR case Analyst
I ...... Geographic Use of the Term ‘‘United States’’ ...... 1999–400 Davis. II ...... Miscellaneous Cost Principles ...... 2001–029 Loeb. III ...... Prompt Payment Under Cost-Reimbursement Contracts for Services ...... 2000–308 Loeb. IV ...... Electronic Signatures ...... 2000–304 Smith. V ...... Increased Federal Prison Industries, Inc. Waiver Threshold (Interim) ...... 2003–001 Nelson. VI ...... Past Performance Evaluation of Federal Prison Industries Contracts ...... 2001–035 Smith. VII ...... Contract Terms and Conditions Required to Implement Statute or Executive Orders—Commercial 2000–009 Moss. Items. VIII ...... Technical Amendments.
SUPPLEMENTARY INFORMATION: 31.205–48, Deferred research and on, or after December 15, 2000. Section Summaries for each FAR rule follow. development costs. The rule will only 1007 retains the prohibition against For the actual revisions and/or affect contracting officers that are payment of late payment interest amendments to these FAR cases, refer to required by a contract clause to use cost penalty for any period prior to the specific item number and subject set principles for the determination, December 15, 2000. forth in the documents following these negotiation, or allowance of contract item summaries. costs. Item IV—Electronic Signatures (FAR FAC 2001–14 amends the FAR as Case 2000–304) Item III—Prompt Payment Under Cost- specified below: Reimbursement Contracts for Services Recent laws eliminate legal barriers to Item I—Geographic Use of the Term (FAR Case 2000–308) using electronic technology in business ‘‘United States’’ (FAR Case 1999–400) The interim rule published in the transactions, such as the formation and This final rule amends the FAR to Federal Register at 66 FR 53485, signing of contracts. This final rule clarify the use of the term ‘‘United October 22, 2001, is converted to a final furthers Government participation in States,’’ when used in a geographic rule, without change, to implement electronic commerce when conducting sense. The term ‘‘United States’’ is statutory and regulatory changes related Government procurements by adding a defined in FAR 2.101 to include the 50 to late payment of an interim payment statement at FAR Subpart 4.5, Electronic States and the District of Columbia. under a cost-reimbursement contract for Commerce in Contracting, clarifying Where a wider area of applicability is services. The rule is of special interest that agencies are permitted to accept intended, the term is redefined in the to contracting officers that award or electronic signatures and records in appropriate part or subpart of the FAR, administer these type of contracts. connection with Government contracts. or supplemented by listing the The Federal Register notice published Item V—Increased Federal Prison additional areas of applicability each in conjunction with the FAR interim time the term is used. This rule corrects rule stated that ‘‘The policy and clause Industries, Inc. Waiver Threshold (FAR and updates references to the United apply to all covered contracts awarded Case 2003–001) States throughout the FAR, including a on or after December 15, 2000 * * * This interim rule revises the Federal agencies may apply the FAR changes new definition of ‘‘outlying areas’’ of the Acquisition Regulation to increase the made by this rule to contracts awarded United States, a term that encompasses Federal Prison Industries, Inc.’s (FPI) the named outlying commonwealths, prior to December 15, 2000, at their clearance exception threshold at territories, and minor outlying islands. discretion * * *.’’ This was consistent with OMB regulations. Subsequently, as 8.606(e) from $25 to $2,500 and Item II—Miscellaneous Cost Principles a result of enactment of the National eliminates the criterion that delivery is (FAR Case 2001–029) Defense Authorization Act for Fiscal required within 10 days. Federal This final rule amends the FAR by Year 2002 (Pub. L. 107–107) on agencies will not be required to make deleting the cost principle at FAR December 28, 2001, agencies no longer purchases from FPI of products on FPI’s 31.205–45, Transportation costs, and have this discretion. Section 1007 of Schedule that are at or below this streamlining the cost principles at FAR Public Law 107–107 states that this threshold. 31.205–10, Cost of money; FAR 31.205– policy applies to cost-reimbursement 28, Other business expenses; and FAR contracts for services awarded before,
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Item VI—Past Performance Evaluation Dated: May 5, 2003. or subpart of the FAR, or supplemented of Federal Prison Industries Contracts David A. Drabkin, by listing the additional areas of (FAR Case 2001–035) Deputy of Acquisition Policy, General applicability each time the term is used. Services Administration. This final rule requires agencies to This rule corrects and updates Dated: May 5, 2003. evaluate Federal Prison Industries (FPI) references to the United States contract performance. This change will Tom Luedtke, throughout the FAR, including a new permit Federal customers to rate FPI Assistant Administrator for Procurement, definition of ‘‘outlying areas’’ of the performance, compare FPI to private National Aeronautics and Space United States, a term that encompasses Administration. sector providers, and give FPI important all outlying commonwealths, territories, feedback on previously awarded [FR Doc. 03–12300 Filed 5–21–03; 8:45 am] and minor outlying islands. contracts. It is expected that this change BILLING CODE 6820–EP–P DoD, GSA, and NASA published a will give FPI the same opportunity that proposed rule in the Federal Register at we give private sector providers, to 66 FR 39230, July 27, 2001. No public improve their customer satisfaction, in DEPARTMENT OF DEFENSE comments were received. The Councils have agreed to convert the proposed general, and their performance on GENERAL SERVICES delivery, price, and quality, specifically. rule to a final rule with only minor ADMINISTRATION editorial changes. Item VII—Contract Terms and Conditions Required to Implement NATIONAL AERONAUTICS AND This is not a significant regulatory Statute or Executive Orders— SPACE ADMINISTRATION action and, therefore, was not subject to Commercial Items (FAR Case 2000–009) review under section 6(b) of Executive 48 CFR Parts 2, 3, 4, 5, 6, 8, 9, 14, 19, Order 12866, Regulatory Planning and This final rule amends the clause at 22, 23, 25, 26, 28, 29, 31, 35, 36, 42, 45, Review, dated September 30, 1993. This 52.212–5, Contract Terms and 47, 52, and 53 rule is not a major rule under 5 U.S.C. Conditions Required to Implement 804. Statute or Executive Orders— [FAC 2001–14; FAR Case 1999–400; Item Commercial Items, to ensure that I] B. Regulatory Flexibility Act required statutes enacted subsequent to RIN 9000–AI99 The Department of Defense, the FASA that contain civil or criminal General Services Administration, and penalties or specifically cite their Federal Acquisition Regulation; the National Aeronautics and Space applicability to commercial items are Geographic Use of the Term ‘‘United Administration certify that this final included on the list, and to ensure that States’’ rule will not have a significant any post-FASA items that did not meet economic impact on a substantial this criteria are deleted from the list. In AGENCIES: Department of Defense (DoD), number of small entities within the addition, the pre-FASA clauses and General Services Administration (GSA), meaning of the Regulatory Flexibility alternates that were inadvertently left and National Aeronautics and Space Act, 5 U.S.C. 601, et seq., because the off the list are added. The date of each Administration (NASA). rule simply standardizes terminology clause is added to the list to identify ACTION: Final rule. and clarifies existing meaning. This rule what revision of the listed clause SUMMARY: The Civilian Agency is not intended to make policy changes. applies when this clause is added to a Acquisition Council and the Defense contract. Acquisition Regulations Council C. Paperwork Reduction Act Item VIII—Technical Amendments (Councils) have agreed on a final rule The Paperwork Reduction Act does amending the Federal Acquisition These amendments update references not apply because the changes to the Regulation (FAR) to clarify the use of and make editorial changes at FAR FAR do not impose information the term ‘‘United States’’ in the FAR, in 52.213–4(a)(2)(vi), 52.244–6 section and collection requirements that require the accordance with the FAR Drafting clause headings, and 52.247–64(a). approval of the Office of Management Guide. and Budget under 44 U.S.C. 3501, et Dated: May 13, 2003. DATES: Effective Date: June 23, 2003. seq. Laura G. Smith, FOR FURTHER INFORMATION CONTACT: The Director, Acquisition Policy Division. List of Subjects in 48 CFR Parts 2, 3, 4, FAR Secretariat, Room 4035, GS 5, 6, 8, 9, 14, 19, 22, 23, 25, 26, 28, 29, Federal Acquisition Circular Building, Washington, DC 20405, (202) 31, 35, 36, 42, 45, 47, 52, and 53 501–4755, for information pertaining to Federal Acquisition Circular (FAC) status or publication schedules. For 2001–14 is issued under the authority of Government procurement. clarification of content, contact Ms. the Secretary of Defense, the Dated: May 13, 2003. Cecelia Davis, Procurement Analyst, at Administrator of General Services, and (202) 219–0202. Please cite FAC 2001– Laura G. Smith, the Administrator for the National 14, FAR case 1999–400. Director, Acquisition Policy Division. Aeronautics and Space Administration. SUPPLEMENTARY INFORMATION: Unless otherwise specified, all ■ Therefore, DoD, GSA, and NASA Federal Acquisition Regulation (FAR) A. Background amend 48 CFR parts 2, 3, 4, 5, 6, 8, 9, 14, and other directive material contained 19, 22, 23, 25, 26, 28, 29, 31, 35, 36, 42, This rule amends the FAR to clarify 45, 47, 52, and 53 as set forth below: in FAC 2001–14 are effective June 23, the use of the term ‘‘United States,’’ 2003, except for Items III, V and VIII when used in a geographic sense. The ■ 1. The authority citation for 48 CFR which are effective May 22, 2003. term ‘‘United States’’ is defined in FAR parts 2, 3, 4, 5, 6, 8, 9, 14, 19, 22, 23, 25, Dated: May 9, 2003. 2.101 to include the 50 States and the 26, 28, 29, 31, 35, 36, 42, 45, 47, 52, and 53 is revised to read as follows: Deidre A. Lee, District of Columbia. Where a wider Director, Defense Procurement and area of applicability is intended, the Authority: 40 U.S.C. 121(c); 10 U.S.C. Acquisition Policy. term is redefined in the appropriate part chapter 137; and 42 U.S.C. 2473(c).
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PART 2—DEFINITIONS OF WORDS PART 4—ADMINISTRATIVE MATTERS ‘‘, its possessions, or Puerto Rico’’ and AND TERMS adding ‘‘and its outlying areas’’ in its ■ 5. Amend section 4.603 in paragraph place. ■ 2. Amend section 2.101 by adding, in (a)(1) by removing ‘‘The contracting alphabetical order, the definitions officer shall insert’’ and adding ‘‘Insert’’ PART 8—REQUIRED SOURCES OF ‘‘Contiguous United States (CONUS)’’, in its place; and by revising paragraph (b) SUPPLIES AND SERVICES to read as follows: ‘‘Customs territory of the United States’’, ■ and ‘‘Outlying areas’’; by removing the 10. Amend section 8.1100 by revising 4.603 Solicitation provisions. definition ‘‘Possessions’’; and by the last sentence to read as follows: revising the definition ‘‘State and local * * * * * 8.1100 Scope of subpart. (b) Insert the provision at 52.204–5, taxes’’. The added and revised text reads * * * It does not apply to motor as follows: Women-Owned Business (Other Than Small Business), in solicitations that— vehicles leased outside the United 2.101 Definitions. (1) Are not set aside for small States and its outlying areas. * * * * * business concerns; 8.1104 [Amended] (2) Exceed the simplified acquisition Contiguous United States (CONUS) ■ threshold; and 11. Amend section 8.1104 in the means the 48 contiguous States and the introductory text by removing ‘‘The District of Columbia. (3) Are for contracts that will be performed in the United States or its contracting officer shall insert’’ and * * * * * outlying areas. adding ‘‘Insert’’ in its place; and in Customs territory of the United States paragraph (d) by removing ‘‘(see 41 CFR means the 50 States, the District of PART 5—PUBLICIZING CONTRACT 101–38.6)’’ and adding ‘‘(see subpart B of Columbia, and Puerto Rico. ACTIONS 41 CFR 102–34)’’ in its place. * * * * * Outlying areas means— ■ 6. Amend section 5.202 by revising the PART 9—CONTRACTOR (1) Commonwealths. (i) Puerto Rico. first sentence of paragraph (a)(12) to read QUALIFICATIONS (ii) The Northern Mariana Islands; as follows: 9.102 [Amended] (2) Territories. (i) American Samoa. 5.202 Exceptions. ■ 12. Amend section 9.102 in paragraph (ii) Guam. * * * * * (a)(1) by removing ‘‘, its possessions, or (iii) U.S. Virgin Islands; and (a) * * * Puerto Rico’’ and adding ‘‘or its outlying (3) Minor outlying islands. (i) Baker (12) The proposed contract action is areas’’ in its place. Island. by a Defense agency and the proposed ■ 13. Amend section 9.406–2 by adding (ii) Howland Island. contract action will be made and an introductory paragraph; revising the (iii) Jarvis Island. performed outside the United States and introductory text of paragraph (a), and (iv) Johnston Atoll. its outlying areas, and only local sources paragraphs (a)(4), (b)(1) introductory (v) Kingman Reef. will be solicited. * * * text, (b)(1)(iii), the first sentence in (b)(2), (vi) Midway Islands. * * * * * and (c) to read as follows: (vii) Navassa Island. (viii) Palmyra Atoll. 5.303 [Amended] 9.406–2 Causes for debarment. (ix) Wake Atoll. ■ 7. Amend section 5.303 in paragraph The debarring official may debar— * * * * * (a)(2) by removing ‘‘or its possessions’’ (a) A contractor for a conviction of or State and local taxes means taxes and adding ‘‘and its outlying areas’’ in its civil judgment for— levied by the States, the District of place. * * * * * Columbia, outlying areas of the United (4) Intentionally affixing a label States, or their political subdivisions. PART 6—COMPETITION bearing a ‘‘Made in America’’ REQUIREMENTS inscription (or any inscription having * * * * * the same meaning) to a product sold in ■ 8. Amend section 6.302–3 by revising PART 3—IMPROPER BUSINESS or shipped to the United States or its paragraph (b)(1)(v) to read as follows: PRACTICES AND PERSONAL outlying areas, when the product was CONFLICTS OF INTEREST 6.302–3 Industrial mobilization; not made in the United States or its engineering, developmental, or research outlying areas (see Section 202 of the 3.303 [Amended] capability; or expert services. Defense Production Act (Public Law ■ 3. Amend section 3.303 in paragraph * * * * * 102–558)); or (e) by removing the comma after the (b) * * * * * * * * word ‘‘States’’ and adding ‘‘and its (1) * * * (b)(1) A contractor, based upon a outlying areas,’’ in its place. (v) Create or maintain the required preponderance of the evidence for— ■ 4. Amend section 3.801 by revising the domestic capability for production of * * * * * definition ‘‘State’’ to read as follows: critical supplies by limiting competition (iii) Intentionally affixing a label to items manufactured in— bearing a ‘‘Made in America’’ 3.801 Definitions. (A) The United States or its outlying inscription (or any inscription having * * * * * areas; or the same meaning) to a product sold in State, as used in this section, means (B) The United States, its outlying or shipped to the United States or its a State of the United States, the District areas, or Canada. outlying areas, when the product was of Columbia, an outlying area of the * * * * * not made in the United States or its United States, an agency or outlying areas (see Section 202 of the instrumentality of a State, and multi- 6.401 [Amended] Defense Production Act (Public Law State, regional, or interstate entity ■ 9. Amend section 6.401 in the first 102–558)). having governmental duties and powers. sentence of paragraph (b)(2) by removing * * * * *
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(2) A contractor, based on a and that makes a significant (i) The procurement of a determination by the Attorney General contribution to the U.S. economy manufactured end product processed of the United States, or designee, that through payment of taxes and/or use of under the procedures set forth in part the contractor is not in compliance with American products, material and/or 13— Immigration and Nationality Act labor, etc. ‘‘Concern’’ includes but is not (A) Is set aside for small business; and employment provisions (see Executive limited to an individual, partnership, (B) Is not anticipated to exceed Order 12989). * * * corporation, joint venture, association, $25,000; and (c) A contractor or subcontractor or cooperative. For the purpose of (ii) The offeror supplies an end based on any other cause of so serious making affiliation findings (see 19.101), product that is manufactured or or compelling a nature that it affects the include any business entity, whether produced in the United States or its present responsibility of the contractor organized for profit or not, and any outlying areas. or subcontractor. foreign business entity, i.e., any entity * * * * * ■ 14. Amend section 9.407–2 by revising located outside the United States and its ■ paragraph (a)(5) to read as follows: outlying areas. 20. Amend section 19.307 by revising paragraphs (a)(1) and (c) to read as * * * * * 9.407–2 Causes for suspension. follows: 19.101 [Amended] (a) * * * 19.307 Solicitation provisions. (5) Intentionally affixing a label ■ bearing a ‘‘Made in America’’ 18. In section 19.101, amend the last (a)(1) Insert the provision at 52.219– inscription (or any inscription having sentence of the definition ‘‘Affiliates’’ by 1, Small Business Program the same meaning) to a product sold in removing ‘‘inside the United States’’ and Representations, in solicitations or shipped to the United States or its adding ‘‘in the United States or its exceeding the micro-purchase threshold outlying areas, when the product was outlying areas’’ in its place. when the contract will be performed in not made in the United States or its ■ 19. Amend section 19.102 by revising the United States or its outlying areas. outlying areas (see Section 202 of the the introductory text of paragraph (f), * * * * * Defense Production Act (Public Law (f)(1), and (f)(7) to read as follows: (c) When contracting by sealed 102–558)); bidding, insert the provision at 52.219– 19.102 Size standards. * * * * * 2, Equal Low Bids, in solicitations when * * * * * the contract will be performed in the PART 14—SEALED BIDDING (f) Any concern submitting a bid or United States or its outlying areas. offer in its own name, other than on a ■ 15. Revise section 14.203–1 to read as construction or service contract, that ■ 21. Amend section 19.702 by revising follows: proposes to furnish an end product it paragraph (b)(3) to read as follows: 14.203–1 Transmittal to prospective did not manufacture (a 19.702 Statutory requirements. ‘‘nonmanufacturer’’), is a small business bidders. * * * * * Invitations for bids or presolicitation if it has no more than 500 employees, and— (b) * * * notices must be transmitted as specified (3) For contracts or contract (1) Except as provided in paragraphs in 14.205 and shall be provided to modifications that will be performed (f)(4) through (f)(7) of this section, in the others in accordance with 5.102. When entirely outside of the United States and case of Government acquisitions set- a contracting office is located in the its outlying areas; or aside for small businesses, furnishes in United States, any solicitation sent to a * * * * * prospective bidder located outside the the performance of the contract, the ■ United States shall be sent by electronic product of a small business 22. Amend section 19.708 by— data interchange or air mail if security manufacturer or producer. The end ■ a. Revising the introductory text of classification permits. product furnished must be paragraph (a) and (a)(2); manufactured or produced in the United ■ b. Removing from the first sentence of PART 19—SMALL BUSINESS States or its outlying areas. The term paragraph (b)(1) the words ‘‘The PROGRAMS ‘‘nonmanufacturer’’ includes a concern contracting officer shall, when that can, but elects not to, manufacture contracting by negotiation, insert’’ and ■ 16. Amend section 19.000 by revising or produce the end product for the adding ‘‘Insert’’ in its place; and paragraph (b) to read as follows: specific acquisition. For size ■ c. Removing from paragraph (b)(2) 19.000 Scope of part. determination purposes, there can be ‘‘The contracting officer shall insert’’ and only one manufacturer of the end adding ‘‘Insert’’ in its place. The revised * * * * * product being acquired. The (b) This part, except for subpart 19.6, text reads as follows: manufacturer of the end product being applies only in the United States or its acquired is the concern that, with its 19.708 Contract clauses. outlying areas. Subpart 19.6 applies own forces, transforms inorganic or (a) Insert the clause at 52.219–8, worldwide. organic substances including raw Utilization of Small Business Concerns, ■ 17. Amend section 19.001 by revising materials and/or miscellaneous parts or in solicitations and contracts when the the definition ‘‘Concern’’ to read as components into the end product. contract amount is expected to exceed follows: However, see the limitations on the simplified acquisition threshold 19.001 Definitions. subcontracting at 52.219–14 that apply unless— * * * * * to any small business offeror other than * * * * * Concern means any business entity a nonmanufacturer for purposes of set- (2) The contract, together with all of organized for profit (even if its asides and 8(a) awards. its subcontracts, will be performed ownership is in the hands of a nonprofit * * * * * entirely outside of the United States and entity) with a place of business located (7) The SBA provides for an exception its outlying areas. in the United States or its outlying areas to the nonmanufacturer rule if— * * * * *
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■ 23. Amend section 19.1202–2 by the Outer Continental Shelf Lands Act ■ 32. Amend section 22.1408 by revising revising paragraph (b)(4) to read as (43 U.S.C. 1331) (29 CFR 5.15); the introductory text of paragraph (a) and follows: (e) For work to be done solely in (a)(1) to read as follows: accordance with the Walsh-Healey 19.1202–2 Applicability. Public Contracts Act (see subpart 22.6); 22.1408 Contract clause. * * * * * (f) For supplies that include (a) Insert the clause at 52.222–36, (b) * * * incidental services that do not require Affirmative Action for Workers with (4) Contract actions that will be substantial employment of laborers or Disabilities, in solicitations and performed entirely outside of the United mechanics; or contracts that exceed or are expected to States and its outlying areas. (g) Exempt under regulations of the exceed $10,000, except when— Secretary of Labor (29 CFR 5.15). (1) Both the performance of the work PART 22—APPLICATION OF LABOR ■ 28. Revise section 22.603 to read as and the recruitment of workers will LAWS TO GOVERNMENT follows: occur outside the United States, Puerto ACQUISITIONS Rico, the Northern Mariana Islands, 22.603 Applicability. American Samoa, Guam, the U.S. Virgin 22.102–2 [Amended] The requirements in 22.602 apply to Islands, and Wake Island; or ■ 24. Amend section 22.102–2 in the first contracts (including for this purpose, * * * * * sentence of paragraph (b) by adding indefinite-delivery contracts, basic ‘‘U.S.’’ before the word ‘‘Virgin’’. ordering agreements, and blanket PART 23—ENVIRONMENT, ENERGY ■ 25. Amend section 22.103–1 by purchase agreements) and subcontracts AND WATER EFFICIENCY, revising the introductory text of the under Section 8(a) of the Small Business RENEWABLE ENERGY definition ‘‘Normal workweek’’ to read Act, for the manufacture or furnishing of TECHNOLOGIES, OCCUPATIONAL as follows: supplies that— SAFETY, AND DRUG-FREE (a) Will be performed in the United WORKPLACE 22.103–1 Definition. States, Puerto Rico, or the U.S. Virgin ■ Normal workweek, as used in this Islands; 33. Amend section 23.200 by revising subpart, means, generally, a workweek (b) Exceed or may exceed $10,000; paragraph (b) to read as follows: of 40 hours. Outside the United States and 23.200 Scope. and its outlying areas, a workweek (c) Are not exempt under 22.604. * * * * * longer than 40 hours is considered ■ 29. Amend section 22.604–2 by (b) This subpart applies to normal if— revising paragraph (a)(2) to read as acquisitions in the United States and its * * * * * follows: outlying areas. Agencies conducting ■ 26. Amend section 22.202 by revising 22.604–2 Regulatory exemptions. acquisitions outside of these areas must the introductory paragraph to read as use their best efforts to comply with this follows: (a) * * * (2) Supplies manufactured outside the subpart. ■ 22.202 Contract clause. United States, Puerto Rico, and the U.S. 34. Amend section 23.501 by revising the introductory paragraph and Insert the clause at 52.222–3, Convict Virgin Islands. paragraphs (a), (b), and (c); and in Labor, in solicitations and contracts * * * * * paragraph (d) by removing ‘‘Contracts above the micro-purchase threshold, ■ 30. Amend section 22.801 by revising by’’ and adding ‘‘By’’ in its place. The when the contract will be performed in the definition ‘‘United States’’ to read as revised text reads as follows: the United States, Puerto Rico, the follows: Northern Mariana Islands, American 23.501 Applicability. 22.801 Definitions. Samoa, Guam, or the U.S. Virgin This subpart applies to contracts, Islands; unless— * * * * * including contracts with 8(a) contractors * * * * * United States means the 50 States, the under FAR subpart 19.8 and District of Columbia, Puerto Rico, the ■ 27. Revise section 22.305 to read as modifications that require a justification Northern Mariana Islands, American follows: and approval (see subpart 6.3), except Samoa, Guam, the U.S. Virgin Islands, contracts— 22.305 Contract clause. and Wake Island. (a) At or below the simplified Insert the clause at 52.222–4, Contract ■ 31. Amend section 22.1001 by revising acquisition threshold; however, the Work Hours and Safety Standards Act— the definition ‘‘United States’’ to read as requirements of this subpart apply to all Overtime Compensation, in solicitations follows: contracts of any value awarded to an individual; and contracts (including, for this 22.1001 Definitions. purpose, basic ordering agreements) (b) For the acquisition of commercial when the contract may require or * * * * * items (see part 12); involve the employment of laborers or United States means the 50 States, the (c) Performed outside the United mechanics. However, do not include the District of Columbia, Puerto Rico, the States and its outlying areas or any part clause in solicitations and contracts— Northern Mariana Islands, American of a contract performed outside the (a) Valued at or below the simplified Samoa, Guam, the U.S. Virgin Islands, United States and its outlying areas; acquisition threshold; Johnston Island, Wake Island, and Outer * * * * * Continental Shelf lands as defined in (b) For commercial items; ■ 35. Revise section 23.505 to read as the Outer Continental Shelf Lands Act (c) For transportation or the follows: transmission of intelligence; (43 U.S.C. 1331, et seq.,) but does not (d) To be performed outside the include any other place subject to U.S. 23.505 Contract clause. United States, Puerto Rico, American jurisdiction or any U.S. base or Except as provided in 23.501, insert Samoa, Guam, the U.S. Virgin Islands, possession in a foreign country (29 CFR the clause at 52.223-6, Drug-Free Johnston Island, Wake Island, and Outer 4.112). Workplace, in solicitations and Continental Shelf lands as defined in * * * * * contracts.
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■ 36. Amend section 23.804 by revising ■ 43. Amend section 28.203–2 by ■ 47. Revise section 29.401–1 to read as the introductory paragraph to reads as revising the first sentence of paragraph follows: follows: (b)(4) and paragraph (c)(3)(i) to read as follows: 29.401–1 Indefinite-delivery contracts for 23.804 Contract clauses. leased equipment. Except for contracts that will be 28.203–2 Acceptability of assets. Insert the clause at 52.229–1, State performed outside the United States and * * * * * and Local Taxes, in solicitations and its outlying areas, insert the clause at: (b) * * * contracts for leased equipment when— (a) A fixed-price indefinite-delivery * * * * * (4) Real property owned in fee simple by the surety without any form of contract is contemplated; ■ 37. Amend section 23.903 by revising (b) The contract will be performed paragraph (b)(2) to read as follows: concurrent ownership, except as provided in paragraph (c)(3)(iii) of this wholly or partly in the United States or 23.903 Applicability. subsection, and located in the United its outlying areas; and States or its outlying areas. * * * (c) The place or places of delivery are * * * * * not known at the time of contracting. (b) * * * * * * * * ■ 48. Amend section 29.401–3 by (2) Contractor facilities located (c) * * * revising paragraph (a)(1) to read as outside the United States and its (3) * * * follows: outlying areas. (i) Real property located outside the ■ 38. Amend section 23.906 by revising United States and its outlying areas. 29.401–3 Federal, State, and local taxes. paragraph (a)(2)(v) to read as follows: * * * * * (a) * * * (1) The contract is to be performed 23.906 Requirements. 28.301 [Amended] wholly or partly in the United States or (a) * * * ■ 44. Amend section 28.301 in the its outlying areas; (2) * * * introductory text by removing ‘‘be * * * * * (v) Are not located in the United required to’’; and in the third sentence of States and its outlying areas. paragraph (b) by removing ‘‘, its PART 31—CONTRACT COST * * * * * possessions, and Puerto Rico’’ and PRINCIPLES AND PROCEDURES ■ adding ‘‘and its outlying areas’’ in its 39. Revise section 23.1002 to read as 31.205–46 [Amended] follows: place. ■ 45. Amend section 28.310 by revising ■ 49. Amend section 31.205–46 in 23.1002 Applicability. the introductory text of paragraph (a) and paragraph (a)(2)(i) by removing The requirements of this subpart paragraph (a)(2) to read as follows: ‘‘conterminous 48’’ and adding apply to facilities owned or operated by ‘‘contiguous’’ in its place; and in an agency in the customs territory of the 28.310 Contract clause for work on a paragraph (a)(2)(ii) by removing ‘‘The United States. Government installation. Commonwealth of Puerto Rico, and (a) Insert the clause at 52.228–5, territories and possessions’’ and adding PART 25—FOREIGN ACQUISITION Insurance—Work on a Government ‘‘and outlying areas’’ in its place. Installation, in solicitations and ■ 40. Amend section 25.003 by removing contracts if a fixed-price contract is PART 35—RESEARCH AND the definition ‘‘Customs territory of the contemplated, the contract amount is DEVELOPMENT CONTRACTING United States’’; and revising the expected to exceed the simplified 35.014 [Amended] definition ‘‘United States’’ to read as acquisition threshold, and the contract follows: will require work on a Government ■ 50. Amend section 35.014 in paragraph (d)(1) by removing from the quoted text 25.003 Definitions. installation, unless— * * * * * ‘‘States’’ and adding ‘‘States or its * * * * * outlying areas’’ in its place. United States means the 50 States, the (2) All work on the Government District of Columbia, and outlying areas. installation will be performed outside PART 36—CONSTRUCTION AND the United States and its outlying areas. * * * * * ARCHITECT–ENGINEER CONTRACTS * * * * * PART 26—OTHER SOCIOECONOMIC ■ 51. Amend section 36.103 by revising PROGRAMS PART 29—TAXES paragraph (a) to read as follows: ■ 36.103 Methods of contracting. ■ 41. Amend section 26.300 by revising 46. Amend section 29.202 by revising paragraph (b) to read as follows: paragraph (b) to read as follows: (a) The contracting officer shall use sealed bid procedures for a construction 26.300 Scope of subpart. 29.202 General exemptions. contract if the conditions in 6.401(a) * * * * * * * * * * apply, unless the contract will be (b) This subpart does not pertain to (b) Shipment for export to a foreign performed outside the United States and contracts performed entirely outside the country or an outlying area of the its outlying areas. (See 6.401(b)(2).) United States and its outlying areas. United States. Shipment must occur * * * * * within 6 months of the time title passes ■ 52. Revise section 36.609–4 to read as PART 28—BONDS AND INSURANCE to the Government. When the exemption is claimed, the words ‘‘for follows: 28.202 [Amended] export’’ must appear on the contract or 36.609–4 Requirements for registration of ■ 42. Amend section 28.202 in paragraph purchase document, and the contracting designers. (a)(1) by removing ‘‘, its possessions, or officer must furnish the seller proof of Insert the clause at 52.236–25, Puerto Rico’’ and adding ‘‘or its outlying export (see 26 CFR 48.4221–3). Requirements for Registration of areas’’ in its place. * * * * * Designers, in architect-engineer
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contracts, except that it may be omitted PART 47—TRANSPORTATION agency or instrumentality of a State, and when the design will be performed— multi-State, regional, or interstate entity (a) Outside the United States and its 47.001 [Amended] having governmental duties and powers. outlying areas; or ■ 57. Amend section 47.001 by removing * * * * * (b) In a State or outlying area of the the definition ‘‘CONUS’’ or ‘‘Continental ■ 64. Amend section 52.212–3 by United States that does not have United States’’. registration requirements for the revising the date of provision, the particular field involved. 47.302 [Amended] introductory text of paragraph (c), (f)(1), and (g)(1)(i) to read as follows: ■ 53. Amend section 36.702 by revising ■ 58. Amend section 47.302 in the first paragraph (a) to read as follows: sentence of paragraph (a) by removing 52.212–3 Offeror Representations and ‘‘Continental’’ and adding ‘‘Contiguous’’ Certifications—Commercial Items. 36.702 Forms for use in contracting for architect-engineer services. in its place. * * * * * (a) Contracting officers must use 47.304–1 [Amended] Offeror Representations and Certifications— Commercial Items (June 2003) Standard Form 252, Architect-Engineer ■ 59. Amend section 47.304–1 in Contract, to award fixed-price contracts paragraphs (g)(1) and (g)(2) by removing * * * * * for architect-engineer services when the (c) Offerors must complete the following ‘‘the continental United States’’ and representations when the resulting contract services will be performed in the United adding ‘‘CONUS’’ in their place. States or its outlying areas. will be performed in the United States or its outlying areas. Check all that apply. * * * * * 47.304–3 [Amended] * * * * * ■ 60. Amend section 47.304–3 in the PART 42—CONTRACT (f) * * * introductory text of paragraph (a) by (1) The offeror certifies that each end ADMINISTRATION AND AUDIT removing ‘‘the United States’’ and SERVICES product, except those listed in paragraph adding ‘‘CONUS’’ in its place. (f)(2) of this provision, is a domestic end 42.1402 Volume movements within the ■ 61. Amend section 47.401 by revising product and that the offeror has considered contiguous United States. the definitions ‘‘United States’’ and components of unknown origin to have been ‘‘U.S.-flag air carrier’’ to read as follows: mined, produced, or manufactured outside ■ 54. Revise the heading of section the United States. The offeror shall list as 42.1402 to read as set forth above. 47.401 Definitions. foreign end products those end products ■ manufactured in the United States that do 55. Amend section 42.1404–1 by * * * * * revising paragraph (c) to read as follows: not qualify as domestic end products. The United States means the 50 States, the terms ‘‘component,’’ ‘‘domestic end 42.1404–1 Parcel post eligible shipments. District of Columbia, and outlying areas product,’’ ‘‘end product,’’ ‘‘foreign end * * * * * of the United States. product,’’ and ‘‘United States’’ are defined in (c)(1) When a contractor uses its own U.S.-flag air carrier means an air the clause of this solicitation entitled ‘‘Buy label to ship to a post office servicing carrier holding a certificate under American Act—Supplies.’’ military and other agency consignees section 401 of the Federal Aviation Act * * * * * outside the customs territory of the of 1958 (49 U.S.C. 41102). (g)(1) * * * United States, the contractor shall stamp ■ 62. Revise section 47.402 to read as (i) The offeror certifies that each end follows: product, except those listed in paragraph or imprint the parcel immediately above (g)(1)(ii) or (g)(1)(iii) of this provision, is a 1 the label in ⁄4-inch block letters with 47.402 Policy. domestic end product and that the offeror has the— considered components of unknown origin to (i) Name of the agency; and Federal employees and their dependents, consultants, contractors, have been mined, produced, or manufactured (ii) Words ‘‘Official Mail—Contents outside the United States. The terms for Official Use— Exempt from Customs grantees, and others must use U.S.-flag ‘‘component,’’ ‘‘domestic end product,’’ ‘‘end Requirements.’’ air carriers for U.S. Government- product,’’ ‘‘foreign end product,’’ and (2) This marking permits financed international air travel and ‘‘United States’’ are defined in the clause of identification and expedites handling transportation of their personal effects this solicitation entitled ‘‘Buy American within the postal system, but the or property, if available (section 5 of the Act—North American Free Trade contractor must pay postage if— International Air Transportation Fair Agreement—Israeli Trade Act.’’ (i) Required by the contract; or Competitive Practices Act of 1974 (49 * * * * * (ii) The contract provides for U.S.C. 40118) (Fly America Act)). ■ 65. Amend section 52.213–4 by reimbursement for the cost of postage. PART 52—SOLICITATION PROVISIONS revising the date of clause and * * * * * AND CONTRACT CLAUSES paragraphs (a)(1)(i), (a)(1)(iv) and the PART 45—GOVERNMENT PROPERTY introductory text of paragraph (b)(1)(viii) ■ 63. Amend section 52.203–12 by to read as follows: ■ 56. Amend section 45.601 by revising revising the date of the clause; and in paragraph (a) by revising the definition 52.213–4 Terms and Conditions— the definition ‘‘Public body’’ to read as Simplified Acquisitions (Other Than follows: ‘‘State’’ to read as follows: Commercial Items). 45.601 Definitions. 52.203–12 Limitation on Payments to * * * * * Influence Certain Federal Transactions. * * * * * Terms and Conditions—Simplified Public body means any State, any * * * * * Acquisitions (Other Than Commercial Items) outlying area of the United States, any Limitation on Payments to Influence Certain (June 2003) political subdivision thereof, the District Federal Transactions (June 2003) (a) * * * of Columbia, any agency or (a) * * * (1) * * * instrumentality of any of the foregoing, State, as used in this clause, means a State (i) 52.222–3, Convict Labor (June 2003) any Indian tribe, or any agency of the of the United States, the District of Columbia, (E.O. 11755). Federal Government. or an outlying area of the United States, an * * * * *
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(iv) 52.225–13, Restrictions on Certain 52.219–7 Notice of Partial Small Business Alternate I (June 2003). As prescribed in foreign Purchases (June 2003) (E.O.’s 12722, Set-Aside. 19.1104, substitute the following paragraph 12724, 13059, 13067, 13121, 13129). * * * * * (d)(2) for paragraph (d)(2) of the basic clause: * * * * * (2) A small disadvantaged business Notice of Partial Small Business Set-Aside (b) * * * concern submitting an offer in its own name (June 2003) (1) * * * shall furnish in performing this contract only (viii) 52.225–1, Buy American Act— * * * * * end items manufactured or produced by Supplies (June 2003) (41 U.S.C. 10a–10d) (c) Agreement. For the set-aside portion of small business concerns in the United States (Applies to contracts for supplies, and to the acquisition, a small business concern or its outlying areas. This paragraph does not contracts for services involving the submitting an offer in its own name shall apply to construction or service contracts. furnishing of supplies, for use in the United furnish, in performing the contract, only end * * * * * items manufactured or produced by small States or its outlying areas, if the value of the ■ supply contract or supply portion of a service business concerns in the United States or its 71. Revise section 52.222–3 to read as contract exceeds the micro-purchase outlying areas. If this procurement is follows: processed under simplified acquisition threshold and the acquisition— 52.222–3 Convict Labor. * * * * * procedures and the total amount of this contract does not exceed $25,000, a small As prescribed in 22.202, insert the ■ business concern may furnish the product of following clause: 66. Amend section 52.219–5 by any domestic firm. This paragraph does not Convict Labor (June 2003) revising the date of the clause, paragraph apply to construction or service contracts. (c), and Alternate II to read as follows: (End of clause) (a) Except as provided in paragraph (b) of this clause, the Contractor shall not employ 52.219–5 Very Small Business Set-Aside. * * * * * in the performance of this contract any person undergoing a sentence of * * * * * ■ 69. Amend section 52.219–18 by imprisonment imposed by any court of a Very Small Business Set-Aside (June 2003) revising the date of clause and paragraph State, the District of Columbia, Puerto Rico, * * * * * (d)(1) to read as follows: the Northern Mariana Islands, American (c) Agreement. A very small business Samoa, Guam, or the U.S. Virgin Islands. concern submitting an offer in its own name 52.219–18 Notification of Competition (b) The Contractor is not prohibited from shall furnish, in performing the contract, Limited to Eligible 8(a) Concerns. employing persons— only end items manufactured or produced by * * * * * (1) On parole or probation to work at paid small business concerns in the United States employment during the term of their Notification of Competition Limited to or its outlying areas. sentence; Eligible 8(a) Concerns (June 2003) (End of clause) (2) Who have been pardoned or who have * * * * * served their terms; or * * * * * (d)(1) Agreement. A small business (3) Confined for violation of the laws of Alternate II (June 2003). As prescribed in concern submitting an offer in its own name any of the States, the District of Columbia, 19.905(b), substitute the following paragraph shall furnish, in performing the contract, Puerto Rico, the Northern Mariana Islands, (c) for paragraph (c) of the basic clause: only end items manufactured or produced by American Samoa, Guam, or the U.S. Virgin (c) Agreement. A very small business small business concerns in the United States Islands who are authorized to work at paid concern submitting an offer in its own name or its outlying areas. If this procurement is employment in the community under the shall furnish, in performing the contract, processed under simplified acquisition laws of such jurisdiction, if— only end items manufactured or produced by procedures and the total amount of this (i) The worker is paid or is in an approved domestic firms in the United States or its contract does not exceed $25,000, a small work training program on a voluntary basis; outlying areas. business concern may furnish the product of (ii) Representatives of local union central any domestic firm. This paragraph does not bodies or similar labor union organizations ■ 67. Amend section 52.219–6 by apply to construction or service contracts. have been consulted; revising the date of the clause and * * * * * (iii) Such paid employment will not result paragraph (c) to read as follows: in the displacement of employed workers, or ■ 70. Amend section 52.219–23 by be applied in skills, crafts, or trades in which 52.219–6 Notice of Total Small Business revising the date of clause; removing there is a surplus of available gainful labor Set-Aside. from paragraph (a) the definition in the locality, or impair existing contracts * * * * * for services; ‘‘United States’’; and by revising (iv) The rates of pay and other conditions Notice of Total Small Business Set-Aside paragraph (d)(2) and Alternate I to read of employment will not be less than those (June 2003) as follows: paid or provided for work of a similar nature in the locality in which the work is being * * * * * 52.219–23 Notice of Price Evaluation (c) Agreement. A small business concern performed; and Adjustment for Small Disadvantaged (v) The Attorney General of the United submitting an offer in its own name shall Business Concerns. furnish, in performing the contract, only end States has certified that the work-release laws items manufactured or produced by small * * * * * or regulations of the jurisdiction involved are in conformity with the requirements of business concerns in the United States or its Notice of Price Evaluation Adjustment for Executive Order 11755, as amended by outlying areas. If this procurement is Small Disadvantaged Business Concerns Executive Orders 12608 and 12943. processed under simplified acquisition (June 2003) procedures and the total amount of this (End of clause) contract does not exceed $25,000, a small * * * * * business concern may furnish the product of (d) * * * ■ 72. Revise section 52.222–29 to read as any domestic firm. This paragraph does not (2) A small disadvantaged business follows: apply to construction or service contracts. concern submitting an offer in its own name shall furnish in performing this contract only 52.222–29 Notification of Visa Denial. (End of clause) end items manufactured or produced by As prescribed in 22.810(g), insert the * * * * * small disadvantaged business concerns in the following clause: United States or its outlying areas. This ■ 68. Amend section 52.219–7 by paragraph does not apply to construction or Notification of Visa Denial (June 2003) revising the date of clause and paragraph service contracts. It is a violation of Executive Order 11246 (c) to read as follows: (End of clause) for a Contractor to refuse to employ any
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applicant or not to assign any person hired ■ 76. Amend section 52.225–2 by 52.225–5 Trade Agreements. in the United States, Puerto Rico, the revising the date of the provision and * * * * * Northern Mariana Islands, American Samoa, paragraph (a) to read as follows: Guam, the U.S. Virgin Islands, or Wake Trade Agreements (June 2003) Island, on the basis that the individual’s race, 52.225–2 Buy American Act Certificate. (a) * * * color, religion, sex, or national origin is not * * * * * United States means the 50 States, the compatible with the policies of the country District of Columbia, and outlying areas. where or for whom the work will be Buy American Act Certificate (June 2003) * * * * * performed (41 CFR 60–1.10). The Contractor (a) The offeror certifies that each end shall notify the U.S. Department of State, product, except those listed in paragraph (b) ■ 80. Amend section 52.225–9 by Assistant Secretary, Bureau of Political- of this provision, is a domestic end product Military Affairs (PM), 2201 C Street NW., revising the date of the clause; and in and that the offeror has considered Room 6212, Washington, DC 20520, and the paragraph (a) by revising the definition components of unknown origin to have been U.S. Department of Labor, Deputy Assistant ‘‘United States’’ to read as follows: mined, produced, or manufactured outside Secretary for Federal Contract Compliance, the United States. The offeror shall list as when it has knowledge of any employee or 52.225–9 Buy American Act—Construction foreign end products those end products potential employee being denied an entry Materials. manufactured in the United States that do visa to a country where this contract will be not qualify as domestic end products. The * * * * * performed, and it believes the denial is terms ‘‘component,’’ ‘‘domestic end attributable to the race, color, religion, sex, or Buy American Act—Construction Materials product,’’ ‘‘end product,’’ ‘‘foreign end national origin of the employee or potential (June 2003) employee. product,’’ and ‘‘United States’’ are defined in (a) * * * (End of clause) the clause of this solicitation entitled ‘‘Buy United States means the 50 States, the American Act—Supplies.’’ District of Columbia, and outlying areas. ■ 73. Amend section 52.223–13 by * * * * * revising the date of the provision and * * * * * ■ paragraph (b)(2)(v) to read as follows: 77. Amend section 52.225–3 by ■ 81. Amend section 52.225–11 by revising the date of the clause; and in 52.223–13 Certification of Toxic Chemical revising the date of the clause; and in paragraph (a) by revising the definition paragraph (a) by revising the definition Release Reporting. ‘‘United States’’ to read as follows: * * * * * ‘‘United States’’ to read as follows: 52.225–3 Buy American Act—North 52.225–11 Buy American Act— Certification of Toxic Chemical Release American Free Trade Agreement—Israeli Reporting (June 2003) Construction Materials under Trade Trade Act. Agreements. * * * * * * * * * * (b) * * * * * * * * (2) * * * Buy American Act—North American Free Buy American Act—Construction Materials [ ] (v) The facility is not located in the Trade Agreement—Israeli Trade Act (June Under Trade Agreements (June 2003) United States or its outlying areas. 2003) (a) * * * (End of provision) (a) * * * United States means the 50 States, the United States means the 50 States, the ■ District of Columbia, and outlying areas. 74. Amend section 52.223–14 by District of Columbia, and outlying areas. revising the date of the clause, and the * * * * * * * * * * introductory text of paragraph (b) and 52.225–13 [Amended] paragraph (b)(5) to read as follows: ■ 78. Amend section 52.225–4 by ■ 82. Amend section 52.225–13 by 52.223–14 Toxic Chemical Release revising the date of the provision and Reporting. paragraph (a) to read as follows: revising the date of the clause to read ‘‘(June 2003)’’; and in the first sentence * * * * * 52.225–4 Buy American Act—North of paragraph (a) by removing ‘‘States’’ Toxic Chemical Release Reporting (June American Free Trade Agreement—Israeli and adding ‘‘States and its outlying Trade Act Certificate. 2003) areas’’ in its place. * * * * * * * * * * ■ 83. Amend section 52.228–3 by (b) A Contractor-owned or -operated Buy American Act—North American Free revising the introductory paragraph to facility used in the performance of this Trade Agreement—Israeli Trade Act read as follows: contract is exempt from the requirement to Certificate (June 2003) file an annual Form R if— (a) The offeror certifies that each end 52.228–3 Workers’ Compensation * * * * * product, except those listed in paragraph (b) Insurance (Defense Base Act). (5) The facility is not located in the United or (c) of this provision, is a domestic end As prescribed in 28.309(a), insert the States or its outlying areas. product and that the offeror has considered following clause: * * * * * components of unknown origin to have been mined, produced, or manufactured outside * * * * * ■ 75. Amend section 52.225–1 by the United States. The terms ‘‘component,’’ ■ 84. Amend section 52.228–4 by revising the date of the clause; and in ‘‘domestic end product,’’ ‘‘end product,’’ revising the introductory paragraph to paragraph (a) by revising the definition ‘‘foreign end product,’’ and ‘‘United States’’ read as follows: ‘‘United States’’ to read as follows: are defined in the clause of this solicitation entitled ‘‘Buy American Act—North 52.228–4 Workers’ Compensation and 52.225–1 Buy American Act—Supplies. American Free Trade Agreement—Israeli War-Hazard Insurance Overseas. * * * * * Trade Act.’’ As prescribed in 28.309(b), insert the * * * * * Buy American Act—Supplies (June 2003) following clause: (a) * * * ■ 79. Amend section 52.225–5 by * * * * * United States means the 50 States, the revising the date of the clause; and in ■ 85. Amend section 52.229–1 by District of Columbia, and outlying areas. paragraph (a) by revising the definition revising the introductory text to read as * * * * * ‘‘United States’’ to read as follows: follows:
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52.229–1 State and Local Taxes. (2) If shipment originates in Alaska or construed as ‘‘United States Government’’ As prescribed in 29.401–1, insert the Hawaii, a destination in Alaska or Hawaii, and ‘‘United States Government-furnished,’’ following clause: respectively. respectively. (b) Unless otherwise directed by the (End of clause) * * * * * Contracting Officer, the Contractor shall— ■ 86. Amend section 52.229–6 by— (1) Send a prepaid notice of shipment to * * * * * ■ a. Revising the date of the clause; the consignee transportation officer— Alternate II (June 2003) *** ■ b. Revising paragraph (a); (i) For all shipments of— * * * * * ■ (A) Classified material, protected sensitive, c. Removing the designation of ■ paragraph (b); and protected controlled material; 90. Amend section 52.245–4 by ■ d. Adding a new paragraph (b) (B) Explosives and poisons, classes A and revising the date of the clause and introductory text; and B; paragraph (e) to read as follows: ■ e. Removing ‘‘, as used in this clause,’’ (C) Radioactive materials requiring the use of a III bar label; or 52.245–4 Government-Furnished Property from the definition ‘‘Contract date’’; (ii) When a truckload/carload shipment of (Short Form). revising the definition ‘‘Country supplies weighing 20,000 pounds or more, or * * * * * concerned’’; and removing ‘‘, as used in a shipment of less weight that occupies the this clause,’’ from the definitions ‘‘Tax’’ full visible capacity of a railway car or motor Government-Furnished Property (Short and ‘‘taxes’’, ‘‘All applicable taxes and vehicle, is given to any carrier (common, Form) (June 2003) duties’’, ‘‘After-imposed tax’’, ‘‘After- contract or private) for transportation to a * * * * * relieved tax’’, and ‘‘Excepted tax’’. The domestic destination (other than a port for (e) If this contract is to be performed added and revised text reads as follows: export); outside the Untied States and its outlying (2) Transmit the notice by rapid means to areas, the words ‘‘Government’’ and 52.229–6 Taxes—Foreign Fixed-Price be received by the consignee transportation ‘‘Government-furnished’’ (wherever they Contracts. officer at least 24 hours before the arrival of appear in this clause) shall be construed as the shipment; and * * * * * ‘‘United States Government’’ and ‘‘United (3) Send, to the receiving transportation States Governmen-furnished,’’ respectively. Taxes—Foreign Fixed-Price Contracts (June officer, the Government bill of lading, (End of clause) 2003) commercial bill of lading or letter or other document containing the following ■ (a) To the extent that this contract provides 91. Amend section 52.245–5 by information and prominently identified as a for furnishing supplies or performing revising the date of the clause; amending ‘‘Report of Shipment’’ or ‘‘REPSHIP FOR paragraph (1) by removing ‘‘of America, services outside the United States and its T.O.’’ outlying areas, this clause applies in lieu of its territories, or possessions’’ and any Federal, State, and local taxes clause of Message Example: adding ‘‘and its outlying areas’’ in its the contract. REPSHIP FOR T.O. 81 JUN 01 place; by revising the date of Alternate I; (b) Definitions. As used in this clause— TRANSPORTATION OFFICER and amending paragraph (c)(5) of * * * * * DEFENSE DEPOT, MEMPHIS, TENN. SHIPPED YOUR DEPOT 1981 JUN 1 540 Alternate I by removing ‘‘States’’ and Country concerned means any country, CTNS MENS COTTON TROUSERS, 30,240 adding ‘‘States or its outlying areas’’ in other than the United States and its outlying LB, 1782 CUBE, VIA XX–YY* its place. The revised text reads as areas, in which expenditures under this IN CAR NO. XX 123456**–GBL***– follows: contract are made. C98000031**** CONTRACT DLA lll * * * * * ETA*****–JUNE 5 JONES & CO., JERSEY 52.245–5 Government Property (Cost- CITY, N.J. Reimbursement, Time-and-Material, or ■ 87. Revise section 52.236–25 to read as Labor-Hour Contracts). follows: * Name of rail carrier, trucker, or other carrier. * * * * * ** Vehicle identification. 52.236–25 Requirements for Registration Government Property (Cost-Reimbursement, *** Government bill of lading. of Designers. Time-and-Material, or Labor-Hour **** If not shipped by GBL, identify lading Contracts) (June 2003) As prescribed in 36.609–4, insert the document and state whether paid by following clause: contractor. * * * * * Requirements for Registration of Designers ***** Estimated time of arrival. (End of clause) (June 2003) (End of clause) Alternate I (June 2003) Architects or engineers registered to ■ 89. Amend section 52.245–2 by * * * * * practice in the particular professional field revising the date and paragraph (1) of the 52.245–11 [Amended] involved in a State, the District of Columbia, clause; revising the date of Alternate II or an outlying area of the United States shall and amending paragraph (c)(5) of ■ 92. Amend section 52.245–11 by prepare or review and approve the design of revising the date of Alternate I to read architectural, structural, mechanical, Alternate II by removing ‘‘States’’ and electrical, civil, or other engineering features adding ‘‘States or its outlying areas’’ in ‘‘(June 2003)’’; and amending paragraph of the work. its place. The revised text reads as (c)(6) of Alternate I by removing ‘‘States’’ (End of clause) follows: and adding ‘‘States or its outlying areas’’ in its place. ■ 88. Revise section 52.242–12 to read as 52.245–2 Government Property (Fixed- follows: Price Contracts). 52.245–15 [Amended] * * * * * ■ 93. Amend section 52.245–15 by 52.242–12 Report of Shipment (REPSHIP). revising the date of the clause to read As prescribed in 42.1406–2, insert the Government Property (Fixed-Price Contracts) (June 2003) ‘‘(June 2003)’’; and amending paragraph following clause: (b) by removing ‘‘States’’ and adding * * * * * Report of Shipment (REPSHIP) (June 2003) (l) Overseas contracts. If this contract is to ‘‘States or its outlying areas’’ in its place. (a) Definition. Domestic destination, as be performed outside of the United States 52.246–17 [Amended] used in this clause, means— and its outlying areas, the words (1) A destination within the contiguous ‘‘Government’’ and ‘‘Government-furnished’’ ■ 94. Amend section 52.246–17 by United States; or (wherever they appear in this clause) shall be revising the date of the clause to read
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‘‘(June 2003)’’; and amending paragraph 52.247–55 F.o.b. Point for Delivery of 52.247–63 Preference for U.S.—Flag Air (c)(3)(ii)(C) by removing ‘‘continental’’ Government-Furnished Property. Carriers. and adding ‘‘contiguous’’ in its place. As prescribed in 47.305–12(a)(2), * * * * * ■ 95. Revise section 52.247–47 to read as insert the following clause: Preference for U.S.—Flag Air Carriers (June follows: F.o.b. Point for Delivery of Government- 2003) Furnished Property (June 2003) 52.247–47 Evaluation—F.o.b. Origin. (a) Definitions. As used in this clause— As prescribed in 47.305–3(f)(2), insert (a) Unless otherwise specified in this International air transportation means solicitation, the Government will deliver any transportation by air between a place in the the following provision. When it is Government-furnished property for use appropriate to use methods other than within the contiguous United States or United States and a place outside the United land transportation in evaluating offers; Canada to a point specified by the Contractor States or between two places both of which e.g., air, pipeline, barge, or ocean tanker, in the offer. If the Government makes are outside the United States. modify the provision accordingly. delivery by railroad, the f.o.b. point will be United States means the 50 States, the private siding, Contractor’s plant. If the District of Columbia, and outlying areas. Evaluation—F.o.b. Origin (June 2003) Contractor’s plant is not served by rail, the U.S.-flag air carrier means an air carrier (a) The Government normally uses land f.o.b. point will be railroad cars in the same holding a certificate under 49 U.S.C. Chapter methods of transportation by regulated or nearest city having rail service. The 411. common carrier for shipment within the Government may choose the mode of contiguous United States. transportation and the carriers and will bear * * * * * (b) To evaluate offers, the Government will the cost of all line-haul transportation to the (c) If available, the Contractor, in consider only these methods to establish the specified destination. performing work under this contract, shall cost of transportation between offeror’s (b) If the destination of the Government- use U.S.-flag carriers for international air shipping point and destination (tentative or furnished property is a Contractor’s plant transportation of personnel (and their firm, whichever is applicable) in the located outside the contiguous United States personal effects) or property. contiguous United States. or Canada, the f.o.b. point for Government (c) This transportation cost will be added delivery of Government-furnished property * * * * * to the offer price to determine the will be a Contractor-specified location in the Government’s overall cost. contiguous United States. If the Contractor PART 53—FORMS (d) When tentative destinations are fails to name a point, the Government will 53.228 [Amended] indicated, the Government will use them select as the f.o.b. point the port city in the only for evaluation purposes. The contiguous United States nearest to the ■ 98. Amend section 53.228 in paragraph Government has the right to use any other Government-furnished property that has means of transportation or any other regular commercial water transportation (e) by removing ‘‘(Rev. 6/96)’’ and adding destination at the time of shipment. services to the offshore port nearest the ‘‘(Rev. 6/03)’’ in its place. (End of provision) Contractor’s plant. ■ 99. Revise section 53.301–28 to read as ■ 96. Amend section 52.247–55 by * * * * * follows: revising the introductory text, the date of ■ 97. Amend section 52.247–63 by the clause, and paragraphs (a) and (b) of revising the date of the clause and 53.301–28 Affidavit of Individual Surety. the clause to read as follows: paragraphs (a) and (c) to read as follows: BILLING CODE 6820–EP–P
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[FR Doc. 03–12301 Filed 5–21–03; 8:45 am] BILLING CODE 6820–EP–C
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DEPARTMENT OF DEFENSE discussion of the comments is provided Administration certify that this final below: rule will not have a significant GENERAL SERVICES Comment: Respondent recommends economic impact on a substantial ADMINISTRATION that paragraph (a)(2) of FAR 31.205–10 number of small entities within the be revised to state that cost of money meaning of the Regulatory Flexibility NATIONAL AERONAUTICS AND ‘‘shall be treated like an incurred cost Act, 5 U.S.C. 601, et seq., because most SPACE ADMINISTRATION for cost-reimbursement purposes.’’ contracts awarded to small entities use Councils’ response: Do not concur. simplified acquisition procedures or are 48 CFR Parts 2, 31, 47, and 52 The Councils believe FAR 31.205– awarded on a competitive, fixed-price 10(a)(1) of the proposed rule clearly basis, and do not require application of [FAC 2001–14; FAR Case 2001–029; Item specifies that cost of money is an the cost principles discussed in this II] imputed cost (as opposed to an incurred rule. cost). Paragraph (a)(2) further states that, RIN 9000–AJ33 for cost-reimbursement purposes, this C. Paperwork Reduction Act Federal Acquisition Regulation; imputed cost is an ‘‘incurred cost.’’ The The Paperwork Reduction Act does Miscellaneous Cost Principles Councils do not believe this language not apply because the changes to the would permit a contractor to argue that FAR do not impose information AGENCIES: Department of Defense (DoD), cost of money is not an imputed cost. In collection requirements that require the General Services Administration (GSA), fact, the cost principle at FAR 31.205– approval of the Office of Management and National Aeronautics and Space 10 has referred to cost of money as and Budget under 44 U.S.C. 3501, et Administration (NASA). being, for cost-reimbursement purposes, seq. an ‘‘incurred cost’’ since at least as early ACTION: Final rule. List of Subjects in 48 CFR Parts 2, 31, as 1984, but has also always specifically 47, and 52 SUMMARY: The Civilian Agency stated that it is actually an ‘‘imputed Acquisition Council and the Defense cost.’’ Government procurement. Acquisition Regulations Council Comment: Respondent recommends Dated: May 13, 2003. (Councils) have agreed on a final rule revising the language in the proposed Laura G. Smith, amending the Federal Acquisition rule at FAR 31.205–10(b)(1) for cost of Director, Acquisition Policy Division. Regulation (FAR) to delete the cost money that states ‘‘it is measured, ■ Therefore, DoD, GSA, and NASA principle concerning transportation assigned, and allocated to contracts in amend 48 CFR parts 2, 31, 47, and 52 as costs and to revise the cost principles accordance with 48 CFR 9904.414 or 48 set forth below: concerning cost of money, other CFR 9904.417, as applicable.’’ ■ 1. The authority citation for 48 CFR business expenses, and deferred Respondent notes that 48 CFR parts 2, 31, 47, and 52 is revised to read research and development costs. 9904.417—Cost of Money as an Element as follows: DATES: Effective Date: June 23, 2003. of the Cost of Capital Assets under Construction (CAS 417), addresses the Authority: 40 U.S.C. 121(c); 10 U.S.C. FOR FURTHER INFORMATION CONTACT: The chapter 137; and 42 U.S.C. 2473(c). FAR Secretariat, Room 4035, GS measurement of cost of money Building, Washington, DC 20405, (202) attributable to assets being constructed PART 2—DEFINITIONS OF WORDS 501–4755, for information pertaining to rather than contract costs. AND TERMS Councils’ response: Concur. The status or publication schedules. For Councils revised the rule at paragraph ■ clarification of content, contact Mr. 2. In section 2.101, add the definition (b)(1) to state that cost of money ‘‘is Edward Loeb at (202) 501–1224. Please ‘‘Facilities capital cost of money’’, in measured, assigned, and allocated to cite FAC 2001–14, FAR case 2001–029. alphabetical order, to read as follows: contracts in accordance with 48 CFR SUPPLEMENTARY INFORMATION: 9904.414 or measured and added to the 2.101 Definitions. A. Background cost of capital assets under construction * * * * * in accordance with 48 CFR 9904.417, as Facilities capital cost of money means DoD, GSA, and NASA published a applicable.’’ ‘‘cost of money as an element of the cost proposed rule in the Federal Register at Comment: Respondent recommends of facilities capital’’ as used at 48 CFR 67 FR 13072, March 20, 2002, with revising FAR 31.205–10(b)(1) by 9904.414—Cost Accounting Standard— request for comments. Two respondents changing the word ‘‘cost’’ to ‘‘imputed Cost of Money as an Element of the Cost submitted public comments. The cost’’ or ‘‘cost of money,’’ to make it of Facilities Capital. Councils considered all comments and consistent with the other language in * * * * * concluded that the proposed rule the cost principle. should be converted to a final rule with Councils’ response: Concur. The PART 31—CONTRACT COST the following changes to the proposed Councils changed the word ‘‘cost’’ in PRINCIPLES AND PROCEDURES rule: paragraph (b)(3) to ‘‘cost of money.’’ 1. Revise the language at FAR 31.205– This is not a significant regulatory 31.001 [Amended] 10(b)(1) to state that cost of money ‘‘is action and, therefore, was not subject to ■ 3. In section 31.001, remove the measured, assigned, and allocated to review under Section 6(b) of Executive definitions ‘‘Cost of capital committed to contracts in accordance with 48 CFR Order 12866, Regulatory Planning and facilities’’ and ‘‘Facilities capital.’’ 9904.414 or measured and added to the Review, dated September 30, 1993. This ■ 4. Revise section 31.205–10 to read as cost of capital assets under construction rule is not a major rule under 5 U.S.C. follows: in accordance with 48 CFR 9904.417, as 804. applicable.’’ 31.205–10 Cost of money. 2. Change the word ‘‘cost’’ in B. Regulatory Flexibility Act (a) General. Cost of money— paragraph 31.205–10(b)(3) to ‘‘cost of The Department of Defense, the (1) Is an imputed cost that is not a money’’ to maintain clarity and General Services Administration, and form of interest on borrowings (see consistency at FAR 31.205–10. A the National Aeronautics and Space 31.205–20);
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(2) Is an ‘‘incurred cost’’ for cost- contract, if the criteria for allowability in A. Background FAR 31.205–10(b) are met. One of the reimbursement purposes under DoD, GSA, and NASA published an applicable cost-reimbursement contracts allowability criteria requires the prospective Contractor to propose facilities capital cost of interim rule in the Federal Register at and for progress payment purposes 66 FR 53485, October 22, 2001, with under fixed-price contracts; and money in its offer. * * * * * request for comments. This FAR (3) Refers to— amendment eliminated the prior policy (i) Facilities capital cost of money (48 [FR Doc. 03–12302 Filed 5–22–03; 8:45 am] and contract clause prohibition on CFR 9904.414); and BILLING CODE 6820–EP–P (ii) Cost of money as an element of the payment of late payment penalty cost of capital assets under construction interest for late interim finance payments under cost-reimbursement (48 CFR 9904.417). DEPARTMENT OF DEFENSE (b) Cost of money is allowable, contracts for services. It added new policy and a contract clause, Alternate provided— GENERAL SERVICES I to the FAR clause at 52.232–25, to (1) It is measured, assigned, and ADMINISTRATION allocated to contracts in accordance provide for those penalty payments. The interim FAR rule implemented with 48 CFR 9904.414 or measured and NATIONAL AERONAUTICS AND section 1010 of the Floyd D. Spence added to the cost of capital assets under SPACE ADMINISTRATION construction in accordance with 48 CFR National Defense Authorization Act for Fiscal Year 2001 (Pub. L. 106–398). 9904.417, as applicable; 48 CFR Parts 2, 32, and 52 (2) The requirements of 31.205–52, Section 1010 requires an agency to pay which limit the allowability of cost of an interest penalty, in accordance with money, are followed; and [FAC 2001–14; FAR Case 2000–308; Item regulations issued by the Office of (3) The estimated facilities capital III] Management and Budget (OMB), cost of money is specifically identified whenever an interim payment under a and proposed in cost proposals relating RIN 9000–AJ17 cost reimbursement contract for services to the contract under which the cost is is paid more than 30 days after the to be claimed. Federal Acquisition Regulation; agency receives a proper invoice from (c) Actual interest cost in lieu of the Prompt Payment Under Cost- the contractor. The Act does not permit calculated imputed cost of money is Reimbursement Contracts for Services payment of late payment interest unallowable. AGENCIES: Department of Defense (DoD), penalty for any period prior to ■ 5. In section 31.205–28, revise the General Services Administration (GSA), December 15, 2000. OMB published an introductory text to read as follows: and National Aeronautics and Space interim rule in the Federal Register at Administration (NASA). 65 FR 78403, December 15, 2000, and a 31.205–28 Other business expenses. final rule at 67 FR 79515, December 30, ACTION: The following types of recurring costs Final rule. 2002. OMB’s rule revised the prompt are allowable: SUMMARY: The Civilian Agency payment regulations at 5 CFR part 1315 * * * * * Acquisition Council and the Defense to implement section 1010 of Public Acquisition Regulations Council Law 106–398. 31.205–45 [Reserved] The Councils received no public ■ (Councils) have agreed on a final rule 6. Remove and reserve section 31.205– amending the Federal Acquisition comments to the interim FAR rule and 45. Regulation (FAR) to adopt, as final, the have agreed to convert the interim rule to a final rule without change. The 31.205–48 Research and development interim rule published at 66 FR 53485, costs. October 22, 2001. This rule requires an applicability date, however, has changed as explained below. The ■ 7. Amend section 31.205–48 by agency to pay an interest penalty whenever it makes an interim payment Federal Register notice published in revising the section heading to read as set conjunction with the FAR interim rule forth above; and in the first sentence by under a cost reimbursement contract for services more than 30 days after the stated that ‘‘The policy and clause apply removing the word ‘‘section’’ and adding to all covered contracts awarded on or ‘‘subsection’’ in its place. agency receives a proper invoice from the contractor. after December 15, 2000 * * * agencies may apply the FAR changes made by PART 47—TRANSPORTATION DATES: Effective Date: May 23, 2003. this rule to contracts awarded prior to Applicability Date: This final rule 47.300 [Amended] December 15, 2000, at their discretion applies to cost-reimbursement contracts ■ 8. Amend section 47.300 in the ***.’’ (66 FR 53485, October 22, for services, irrespective of award date, 2001.) This was consistent with OMB introductory text of paragraph (b) by if interim payments requests under such removing ‘‘(see 31.205–45)’’. regulations. Subsequently, as a result of contracts are due on or after December enactment of the National Defense 15, 2000. In no event may agencies pay PART 52—SOLICITATION PROVISIONS Authorization Act for Fiscal Year 2002 late payment penalty interest for any AND CONTRACT CLAUSES (Pub. L. 107–107) on December 28, delay in payment that occurred prior to 2001, agencies no longer have this ■ 9. Amend section 52.215–16 by December 15, 2000. discretion. Section 1007 of Public Law revising the date of the provision and FOR FURTHER INFORMATION CONTACT: The 107–107 states that this policy applies paragraph (a) to read as follows: FAR Secretariat, Room 4035, GS to cost-reimbursement contracts for Building, Washington, DC, 20405, (202) services awarded before, on, or after 52.215–16 Facilities Capital Cost of 501–4755, for information pertaining to Money. December 15, 2000. Section 1007 retains status or publication schedules. For the prohibition against payment of late * * * * * clarification of content, contact Mr. payment interest penalty for any period Facilities Capital Cost of Money (June 2003) Edward Loeb at (202) 501–0650. Please prior to December 15, 2000. For this (a) Facilities capital cost of money will be cite FAC 2001–14, FAR case 2000–308. reason, the applicability of the rule has an allowable cost under the contemplated SUPPLEMENTARY INFORMATION: been revised to reflect this change.
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This is not a significant regulatory DEPARTMENT OF DEFENSE This final rule furthers Government action and, therefore, was not subject to participation in electronic commerce review under Section 6(b) of Executive GENERAL SERVICES when conducting Government Order 12866, Regulatory Planning and ADMINISTRATION procurements by adding a statement at Review, dated September 30, 1993. This FAR Subpart 4.5, Electronic Commerce rule is not a major rule under 5 U.S.C. NATIONAL AERONAUTICS AND in Contracting, clarifying that agencies 804. SPACE ADMINISTRATION are permitted to accept electronic signatures and records in connection B. Regulatory Flexibility Act 48 CFR Part 4 with Government contracts. DoD, GSA, and NASA published a The Department of Defense, the [FAC 2001–14; FAR Case 2000–304; Item IV] proposed rule in the Federal Register at General Services Administration, and 65 FR 65698, November 1, 2000. In the National Aeronautics and Space RIN 9000–AI94 addition to proposing a policy statement Administration certify that this final recognizing the use of electronic rule will not have a significant Federal Acquisition Regulation; signatures, the proposed rule would economic impact on a substantial Electronic Signatures have revised the current FAR number of small entities within the AGENCIES: Department of Defense (DoD), definitions of ‘‘in writing’’ and meaning of the Regulatory Flexibility General Services Administration (GSA), ‘‘signature’’ at FAR 2.101 to clarify that Act, 5 U.S.C. 601, et seq., because the and National Aeronautics and Space these terms include electronic, in rule only applies to the very limited Administration (NASA). addition to paper, transactions. It also would have made minor changes to the number of contractors that are awarded ACTION: Final rule. cost-reimbursement service contracts definition of electronic commerce. and that are paid more than 30 days SUMMARY: The Civilian Agency Twenty-five sources submitted after the agency receives a proper Acquisition Council and the Defense comments in response to the proposed invoice. Acquisition Regulations Council rule. All comments were considered in (Councils) have agreed on a final rule the development of the final rule. C. Paperwork Reduction Act amending the Federal Acquisition Several surety companies expressed Regulation (FAR) to clarify that agencies support for greater use of electronic The Paperwork Reduction Act does are permitted to accept electronic technologies for the filing of bid, not apply because the changes to the signatures and records in connection performance, and payment bonds and FAR do not impose information with Government contracts. associated powers of attorney. They collection requirements that require the noted that such technologies will DATES: Effective Date: June 23, 2003. approval of the Office of Management ‘‘streamline the procurement process, FOR FURTHER INFORMATION CONTACT: and Budget under 44 U.S.C. 3501, et The reduce costs, and increase efficiency for FAR Secretariat, Room 4035, GS seq. all trading partners.’’ However, they Building, Washington, DC, 20405, (202) cautioned that FAR coverage should not List of Subjects in 48 CFR Parts 2, 32, 501–4755, for information pertaining to result in reliance on a single proprietary and 52 status or publication schedules. For system for electronic signatures for the clarification of content, contact Ms. Government procurement. entire Federal government. They further Laura Smith, Procurement Analyst, at recommended a phase-in period so Dated: May 13, 2003. (202) 501–7279. Please cite FAC 2001– sureties that are not yet automated have Laura G. Smith, 14, FAR case 2000–304. alternative means of transacting with Director, Acquisition Policy Division. SUPPLEMENTARY INFORMATION: the Government in the near term. A. Background With respect to the choice of Interim Rule Adopted as Final Without technology, the final rule simply states, Change On October 21, 1998, the Government ‘‘agencies may accept electronic Paperwork Elimination Act (Title XVII signatures and records in connection ■ Accordingly, DoD, GSA, and NASA of Division C of Public Law 105–277) with Government contracts.’’ The choice adopt the interim rule amending 48 CFR was enacted. On June 30, 2000, the of technology for implementing parts 2, 32, and 52 which was published Electronic Signatures in Global and electronic signatures is left to each in the Federal Register at 66 FR 53485, National Commerce Act (E–SIGN) (Pub. agency. As for the execution of bonds October 22, 2001, as a final rule without L. 106–229) was enacted. These laws and powers of attorney, the rule does change. eliminate legal barriers to using not require that these documents be electronic technology in business submitted electronically, which will Authority: 40 U.S.C. 121(c); 10 U.S.C. transactions, such as the formation and chapter 137; and 42 U.S.C. 2473(c). allow time for parties to effectively signing of contracts. The Office of transition to electronic transactions. [FR Doc. 03–12303 Filed 5–22–03; 8:45 am] Management and Budget (OMB) has One commenter made several BILLING CODE 6820–EP–P issued guidance on both of these laws. recommendations regarding the See Memorandum M–00–15, ‘‘OMB definitions. In particular, the Guidance on Implementing the commenter asserted that— Electronic Signatures in Global and • A definition for ‘‘electronic National Commerce Act,’’ dated commerce’’ is unnecessary and should September 25, 2000, and Memorandum be removed from the FAR; M–00–10, ‘‘OMB Procedures and • The current FAR definition of Guidance on Implementing the ‘‘signature’’ should be replaced by the Government Paperwork Elimination E–SIGN definition of ‘‘electronic Act,’’ dated April 25, 2000. These signature’’; and memoranda are available on the OMB • The E–SIGN definition of electronic Homepage at http://www.omb.gov. record should be substituted for the
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current and proposed definitions of ‘‘in review under Section 6(b) of Executive DEPARTMENT OF DEFENSE writing,’’ ‘‘writing,’’ and ‘‘written,’’ Order 12866, Regulatory Planning and because the latter definitions are too Review, dated September 30, 1993. This GENERAL SERVICES narrow. The Councils disagree with the rule is not a major rule under 5 U.S.C. ADMINISTRATION recommended changes to the 804. definitions. NATIONAL AERONAUTICS AND The current FAR definition of B. Regulatory Flexibility Act SPACE ADMINISTRATION ‘‘electronic commerce’’ is consistent with that set forth in section 30 of the The Department of Defense, the 48 CFR Part 8 Office of Federal Procurement Policy General Services Administration, and the National Aeronautics and Space [FAC 2001–14; FAR Case 2003–001; Item Act. The Councils believe the statutory V] definition should be reflected in the Administration certify that this final FAR. At the same time, the Councils rule will not have a significant RIN 9000–AJ62 recognize the value in evaluating the economic impact on a substantial continued need for, and appropriateness number of small entities within the Federal Acquisition Regulation; of this definition as electronic meaning of the Regulatory Flexibility Increased Federal Prison Industries, commerce continues to become more Act, 5 U.S.C. 601, et seq., because the Inc. Waiver Threshold institutionalized in the Government. rule does not change the procedures for AGENCIES: Department of Defense (DoD), The commenter’s proposed definition award or administration of contracts, General Services Administration (GSA), of electronic signature does not reflect but rather, clarifies that the use of and National Aeronautics and Space intention to authenticate. This concept electronic signatures and electronic Administration (NASA). is important to contracting-related methods are permitted in Government ACTION: Interim rule with request for transactions, electronic or otherwise. As procurement. comments. noted in a September 12, 1951, Comptroller General decision (B– C. Paperwork Reduction Act SUMMARY: The Civilian Agency 104590), courts have held that ‘‘a Acquisition Council and the Defense The Paperwork Reduction Act does signature consists of the writing of one’s Acquisition Regulations Council name and of the intention that it not apply because the changes to the (Councils) have agreed on an interim authenticate the instrument, and, FAR do not impose information rule amending the Federal Acquisition therefore, any symbol adopted as one’s collection requirements that require the Regulation (FAR) to increase the blanket signature when affixed with his approval of the Office of Management waiver threshold for small dollar value knowledge and consent is a binding and and Budget under 44 U.S.C. 3501, et purchases from Federal Prison legal signature * * *’’ This was seq. Industries (FPI) by Federal agencies. By reiterated in a September 20, 1984, List of Subjects in 48 CFR Part 4 increasing this threshold to $2,500, Comptroller General decision (B– Federal agencies will not be required to 216035). Consistent with this reasoning, Government procurement. make purchases from FPI of products on FAR case 91–104 incorporated the FPI’s Schedule that are at or below this Dated: May 13, 2003. concept of authentication into the threshold. Federal agencies, however, definition of ‘‘signature.’’ That case Laura G. Smith, may continue to consider and purchase established the premise that either hand Director, Acquisition Policy Division. products from FPI that are at or below scribed or other format signatures $2,500. indicate an intent to authenticate (or be ■ Therefore, DoD, GSA, and NASA amend 48 CFR part 4 as set forth below: DATES: Effective Date: May 22, 2003. bound). Comment Date: Interested parties Similarly, the Councils believe that should submit comments to the FAR the proposed definition for ‘‘electronic PART 4—ADMINISTRATIVE MATTERS Secretariat at the address shown below record’’ is insufficient. The Councils ■ on or before June 23, 2003 to be maintain that the definition of ‘‘in 1. The authority citation for 48 CFR considered in the formulation of a final writing’’ should reflect the requirement part 4 is revised to read as follows: rule. to store because agencies ask for Authority: 40 U.S.C. 121(c); 10 U.S.C. ADDRESSES: Submit written comments information in writing when they intend chapter 137; and 42 U.S.C. 2473(c). to keep it as a record. Therefore, storage, to—General Services Administration, reproduction, and later retrieval are all ■ 2. Amend section 4.502 by adding FAR Secretariat (MVA), 1800 F Street, salient characteristics of a record. After paragraph (d) to read as follows: NW., Room 4035, Attn: Ms. Laurie further deliberation and consideration Duarte, Washington, DC 20405. 4.502 Policy. of the public comments regarding the Submit electronic comments via the proposed changes to the definitions, the * * * * * Internet to—farcase.2003–[email protected]. Please submit comments only and cite Councils have determined that the (d) Agencies may accept electronic current FAR definitions are sufficient FAC 2001–14, FAR case 2003–001, in signatures and records in connection all correspondence related to this case. and appropriately capture the necessary with Government contracts. salient characteristics required of a FOR FURTHER INFORMATION CONTACT: The ‘‘writing’’ and a ‘‘signature.’’ Likewise, [FR Doc. 03–12304 Filed 5–22–03; 8:45 am] FAR Secretariat, Room 4035, GS the Councils concluded that there was BILLING CODE 6820–EP–P Building, Washington, DC 20405, (202) no significant value achieved through 501–4755, for information pertaining to the proposed change to the definition of status or publication schedules. For ‘‘electronic commerce.’’ clarification of content, contact Ms. Therefore, this final rule makes no Linda Nelson, Procurement Analyst, at changes to the current FAR definitions. (202) 501–1900. Please cite FAC 2001– This is not a significant regulatory 14, FAR case 2003–001. action and, therefore, was not subject to SUPPLEMENTARY INFORMATION:
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A. Background Prison Industries, part of the DEPARTMENT OF DEFENSE The Federal Prison Industries (FPI) Department of Justice, another Federal GENERAL SERVICES Board of Directors recently adopted a executive agency. FPI will continue to resolution increasing the blanket waiver be a source, but optional rather than ADMINISTRATION threshold for small dollar-value mandatory, for these very-small-dollar purchases from Federal Prison purchases. This change does not NATIONAL AERONAUTICS AND Industries by Federal agencies. The originate from the FAR regulation, but is SPACE ADMINISTRATION resolution adopted by the FPI Board only an update to show a change in 48 CFR Parts 8 and 42 increases the FPI clearance exception policy made by the Federal Prison threshold at 8.606(e) from $25 to $2,500 Industries itself. No public comments [FAC 2001–14; FAR Case 2001–035; Item and eliminates the criterion that are required under 41 U.S.C. 418b(a), VI] delivery is required within 10 days. The and under (a) and (d) therefore no RIN 9000–AJ45 objective of the rule is to increase the determination either for compelling dollar threshold necessary to obtain a circumstances, or for urgent and Federal Acquisition Regulation; Past clearance from FPI. By increasing this compelling circumstances needs to be Performance Evaluation of Federal threshold to $2,500, Federal agencies made in order for the case to go into Prison Industries Contracts will not be required to make purchases effect immediately. Even though not from FPI of products on FPI’s Schedule AGENCIES: Department of Defense (DoD), required to do so, the Councils would, that are at or below this threshold. General Services Administration (GSA), Federal agencies, however, may nevertheless, like to obtain public and National Aeronautics and Space continue to consider and purchase comments. No determination of urgent Administration (NASA). products from FPI that are at or below and compelling circumstances is ACTION: Final rule. $2,500. FPI is a mandatory acquisition necessary under the statute to obtain program established under 18 U.S.C. optional public comments. SUMMARY: The Civilian Agency 4124. Agencies would still be required However, pursuant to Public Law 98– Acquisition Council and the Defense to purchase products on FPI’s Schedule 577 and FAR 1.501, the Councils will Acquisition Regulations Council from FPI above the $2,500 threshold consider public comments received in (Councils) have agreed on a final rule unless a clearance is obtained pursuant response to this interim rule in the amending the Federal Acquisition Regulation (FAR) to require evaluation to FAR 8.605. formation of the final rule. This is not a significant regulatory of Federal Prison Industries (FPI) action and, therefore, was not subject to List of Subjects in 48 CFR Part 8 contract performance. review under Section 6(b) of Executive DATES: Effective Date: June 23, 2003. Government procurement. Order 12866, Regulatory Planning and FOR FURTHER INFORMATION CONTACT: The Review, dated September 30, 1993. This Dated: May 13, 2003. FAR Secretariat, Room 4035, GS rule is not a major rule under 5 U.S.C. Laura G. Smith, Building, Washington, DC, 20405, (202) 804. Director, Acquisition Policy Division. 501–4755, for information pertaining to B. Regulatory Flexibility Act status or publication schedules. For ■ Therefore, DoD, GSA, and NASA clarification of content, contact Ms. The Regulatory Flexibility Act does amend 48 CFR part 8 as set forth below: Laura Smith, Procurement Analyst, at not apply to this rule. This interim rule (202) 208–7279. Please cite FAC 2001– does not constitute a significant FAR PART 8—REQUIRED SOURCES OF 14, FAR case 2001–035. revision within the meaning of FAR SUPPLIES AND SERVICES 1.501 and Public Law 98–577, and SUPPLEMENTARY INFORMATION: publication for public comments is not ■ 1. The authority citation for 48 CFR A. Background required. However, the Councils will part 8 is revised to read as follows: consider comments from small entities This final rule amends FAR Subparts concerning the affected FAR part 8, in Authority: 40 U.S.C. 121(c); 10 U.S.C. 8.6 and 42.15 to require agencies to accordance with 5 U.S.C. 610. Interested chapter 137; and 42 U.S.C. 2473(c). evaluate Federal Prison Industries (FPI) parties must submit such comments contract performance. This change will ■ separately and should cite 5 U.S.C. 601, 2. Amend section 8.606 by revising permit Federal customers to rate FPI et seq., (FAC 2001–14, FAR case 2003– paragraph (e) to read as follows: performance, compare FPI to private 001), in correspondence. sector providers, and give FPI important 8.606 Exceptions. feedback on previously awarded C. Paperwork Reduction Act * * * * * contracts. It is expected that this change The Paperwork Reduction Act does (e) Orders are for listed items totaling will give FPI the same opportunity that not apply because the changes to the $2,500 or less. we give private sector providers to FAR do not impose information improve their customer satisfaction, in collection requirements that require the [FR Doc. 03–12305 Filed 5–21–03; 8:45 am] general, and their performance on approval of the Office of Management BILLING CODE 6820–EP–P delivery, price, and quality, specifically. and Budget under 44 U.S.C. 3501, et While the change does not negate the seq. requirements of FAR 8.602 or 8.605, it will allow the information to be used to D. Determination To Issue an Interim support a clearance request per FAR Rule 8.605. There is no requirement to publish DoD, GSA, and NASA published a this rule for public comment, as it is not proposed rule in the Federal Register at a significant FAR revision. This rule 67 FR 55680, August 29, 2002. Ten only covers very-small-dollar supply respondents submitted public purchases now being made from Federal comments. The Councils considered the
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public comments before agreeing to B. Regulatory Flexibility Act 42.1503 Procedures. convert the proposed rule to a final rule The Department of Defense, the * * * * * with minor changes. A summary of the General Services Administration, and (b) * * * Evaluation of Federal Prison comments is provided below: the National Aeronautics and Space Industries (FPI) performance may be Comment: To avoid potential Administration certify that this final used to support a clearance request (see misinterpretation, the rule should more rule will not have a significant 8.605) when FPI is a mandatory source clearly call attention to the mandatory economic impact on a substantial in accordance with subpart 8.6. * * * source requirement for purchase of FPI number of small entities within the * * * * * products and more clearly point out that meaning of the Regulatory Flexibility [FR Doc. 03–12306 Filed 5–21–03; 8:45 am] a negative past performance evaluation Act, 5 U.S.C. 601, et seq., because BILLING CODE 6820–EP–P may be used as a basis for a waiver extending the collection of past request. performance data to include FPI Response: We agree. The intent of the contracts can be accomplished within DEPARTMENT OF DEFENSE rule is to ensure contracting officers our normal means of performing understand that the waiver process is business and further serves to promote GENERAL SERVICES still in effect and that performance competition among offerors. ADMINISTRATION evaluations may be used to support future award decisions. Therefore, the C. Paperwork Reduction Act NATIONAL AERONAUTICS AND final rule amends FAR 8.607 and The Paperwork Reduction Act does SPACE ADMINISTRATION 42.1503(b) to more clearly articulate that not apply because the changes to the the waiver requirement, referred to at FAR do not impose information 48 CFR Part 52 FAR 8.605 as a clearance, still applies collection requirements that require the [FAC 2001–14; FAR Case 2000–009; Item and that a negative performance approval of the Office of Management VII] evaluation can be used to support and Budget under 44 U.S.C. 3501, et RIN 9000–AJ34 clearance requests. seq. Comment: There is no basis for an Federal Acquisition Regulation; assessment of FPI’s past performance. List of Subjects in 48 CFR Parts 8 and Contract Terms and Conditions FPI’s past performance is irrelevant to 42 Required To Implement Statute or whether an agency is required to obtain Government procurement. Executive Orders—Commercial Items goods from FPI because of its mandatory Dated: May 13, 2003. source status. Therefore, the collection AGENCIES: Department of Defense (DoD), of data is a patent waste of Government Laura G. Smith, General Services Administration (GSA), resources since it cannot be used for Director, Acquisition Policy Division. and National Aeronautics and Space source selection purposes. ■ Therefore, DoD, GSA, and NASA Administration (NASA). Response: We believe that there is amend 48 CFR parts 8 and 42 as set forth ACTION: Final rule. benefit to assessing FPI’s performance. below: The May 2000 Office of Federal ■ 1. The authority citation for 48 CFR SUMMARY: The Civilian Agency Procurement Policy (OFPP) guide ‘‘Best parts 8 and 42 is revised to read as Acquisition Council and the Defense Practices for Collecting and Using follows: Acquisition Regulations Council Current and Past Performance (Councils) have agreed on a final rule Information’’ states that the active Authority: 40 U.S.C. 121(c); 10 U.S.C. amending the Federal Acquisition chapter 137; and 42 U.S.C. 2473(c). dialog that results from assessing a Regulation (FAR) to update the clause contractor’s current performance results PART 8—REQUIRED SOURCES OF regarding commercial items contract in better performance on the instant SUPPLIES AND SERVICES terms and conditions required to contract, and that such assessments are implement statute or Executive orders. a basic best practice for good contract ■ 2. Add section 8.607 to read as follows: DATES: Effective Date: June 23, 2003. administration. As previously stated, FOR FURTHER INFORMATION CONTACT: The this information can also be used to 8.607 Evaluating FPI performance. FAR Secretariat, Room 4035, GS support FPI clearance requests. Agencies shall evaluate FPI contract Building, Washington, DC 20405, (202) Comment: What is the relationship performance in accordance with subpart 501–4755, for information pertaining to between this rule and Section 811 of the 42.15. Performance evaluations do not status or publication schedules. For National Defense Authorization Act of negate the requirements of 8.602 and clarification of content, contact Ms. FY 2002? Section 811 does not apply to 8.605, but they may be used to support Victoria Moss, Procurement Analyst, at agencies outside of DoD. a clearance request in accordance with (202) 501–4764. Please cite FAC 2001– Response: This rule has no 8.605. 14, FAR case 2000–009. relationship to Section 811 of the FY SUPPLEMENTARY INFORMATION: 2002 National Defense Authorization PART 42—CONTRACT Act. The genesis of this case was a ADMINISTRATION AND AUDIT A. Background memorandum from FPI requesting past SERVICES Federal Acquisition Regulation Part performance evaluations on their 42.1502 [Amended] 12, Acquisition of Commercial Items, contracts. was developed to implement Title VIII This is not a significant regulatory ■ 3. Amend section 42.1502 in the first of the Federal Acquisition Streamlining action and, therefore, was not subject to sentence of paragraph (b) by removing Act of 1994 (FASA) (Pub. L. 103–355). review under Section 6(b) of Executive ‘‘subparts 8.6 and’’ and adding ‘‘subpart’’ The regulations became effective on Order 12866, Regulatory Planning and in its place. October 1, 1995. Several areas have been Review, dated September 30, 1993. This ■ 4. Amend section 42.1503 in paragraph identified that need updating and rule is not a major rule under 5 U.S.C. (b) by adding a new seventh sentence to clarification. This rule addresses some 804. read as follows: of those changes.
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The list of contract terms and Dated: May 13, 2003. l(iii) Alternate II (OCT 2001) of 52.219– conditions required to implement Laura G. Smith, 9. l statutes or Executive orders in the Director, Acquisition Policy Division. (9) 52.219–14, Limitations on Subcontracting (DEC 1996) (15 U.S.C. clause at FAR 52.212–5, Contract Terms ■ Therefore, DoD, GSA, and NASA and Conditions Required to Implement 637(a)(14)). amend 48 CFR part 52 as set forth below: l(10)(i) 52.219–23, Notice of Price Statutes or Executive Orders— Evaluation Adjustment for Small Commercial Items, is amended to ensure PART 52—SOLICITATION PROVISIONS Disadvantaged Business Concerns (JUNE that required statutes enacted AND CONTRACT CLAUSES 2003) (Pub. L. 103–355, section 7102, and 10 subsequent to FASA that contain civil ■ U.S.C. 2323) (if the offeror elects to waive the or criminal penalties or specifically cite 1. The authority citation for 48 CFR adjustment, it shall so indicate in its offer). their applicability to commercial items part 52 is revised to read as follows: l(ii) Alternate I (JUNE 2003) of 52.219–23. are included on the list, and to ensure Authority: 40 U.S.C. 121(c); 10 U.S.C. l(11) 52.219–25, Small Disadvantaged that any post-FASA items that did not chapter 137; and 42 U.S.C. 2473(c). Business Participation Program— meet this criteria are deleted from the ■ 2. Amend section 52.212–5 by revising Disadvantaged Status and Reporting (OCT list. In addition, the pre-FASA clauses 1999) (Pub. L. 103–355, section 7102, and 10 the date of the clause and paragraphs (a), U.S.C. 2323). and alternates that were inadvertently (b), (c), and (e) to read as follows: l(12) 52.219–26, Small Disadvantaged left off the list are added. The date of 52.212–5 Contract Terms and Conditions Business Participation Program—Incentive each clause is added to the list to Subcontracting (OCT 2000) (Pub. L. 103–355, identify what revision of the listed Required to Implement Statutes or Executive Orders—Commercial Items. section 7102, and 10 U.S.C. 2323). clause applies when this clause is added l(13) 52.222–3, Convict Labor (JUNE to a contract. * * * * * 2003) (E.O. 11755). DoD, GSA, and NASA published a l(14) 52.222–19, Child Labor— proposed rule in the Federal Register at Contract Terms and Conditions Required To Cooperation with Authorities and Remedies Implement Statutes or Executive Orders— (SEP 2002) (E.O. 13126). 67 FR 13076, March 20, 2002. The 60- Commercial Items (June 2003) day comment period ended May 20, l(15) 52.222–21, Prohibition of Segregated 2002. Two sources submitted comments (a) The Contractor shall comply with the Facilities (FEB 1999). following Federal Acquisition Regulation l(16) 52.222–26, Equal Opportunity (APR on the proposed rule. Both comments (FAR) clause, which is incorporated in this 2002) (E.O. 11246). suggested revisions to paragraph contract by reference, to implement l(17) 52.222–35, Equal Opportunity for 52.212–5(e) to clarify flow-down provisions of law or Executive orders Special Disabled Veterans, Veterans of the requirements. Accordingly, paragraph applicable to acquisitions of commercial Vietnam Era, and Other Eligible Veterans 52.212–5(e) is revised in the final rule items: 52.233–3, Protest after Award (AUG (DEC 2001) (38 U.S.C. 4212). to flow down clauses that are applicable 1996) (31 U.S.C. 3553). l(18) 52.222–36, Affirmative Action for to the subcontract and required to (b) The Contractor shall comply with the Workers with Disabilities (JUN 1998) (29 implement statute or Executive order. FAR clauses in this paragraph (b) that the U.S.C. 793). This is not a significant regulatory Contracting Officer has indicated as being l(19) 52.222–37, Employment Reports on incorporated in this contract by reference to Special Disabled Veterans, Veterans of the action and, therefore, was not subject to implement provisions of law or Executive review under Section 6(b) of Executive Vietnam Era, and Other Eligible Veterans orders applicable to acquisitions of (DEC 2001) (38 U.S.C. 4212). Order 12866, Regulatory Planning and commercial items: [Contracting Officer check l(20)(i) 52.223–9, Estimate of Percentage Review, dated September 30, 1993. This as appropriate.] of Recovered Material Content for EPA- rule is not a major rule under 5 U.S.C. l(1) 52.203–6, Restrictions on Designated Products (AUG 2000) (42 U.S.C. 804. Subcontractor Sales to the Government (JUL 6962(c)(3)(A)(ii)). 1995), with Alternate I (OCT 1995) (41 U.S.C. l B. Regulatory Flexibility Act (ii) Alternate I (AUG 2000) of 52.223–9 253g and 10 U.S.C. 2402). (42 U.S.C. 6962(i)(2)(C)). l(2) 52.219–3, Notice of Total HUBZone The Department of Defense, the l(21) 52.225–1, Buy American Act— Set-Aside (JAN 1999) (15 U.S.C. 657a). General Services Administration, and Supplies (JUNE 2003) (41 U.S.C. 10a–10d). l(3) 52.219–4, Notice of Price Evaluation l(22)(i) 52.225–3, Buy American Act— the National Aeronautics and Space Preference for HUBZone Small Business North American Free Trade Agreement— Administration certify that this final Concerns (JAN 1999) (if the offeror elects to Israeli Trade Act (JUNE 2003) (41 U.S.C. 10a– rule will not have a significant waive the preference, it shall so indicate in economic impact on a substantial its offer) (15 U.S.C. 657a). 10d, 19 U.S.C. 3301 note, 19 U.S.C. 2112 number of small entities within the l(4)(i) 52.219–5, Very Small Business Set- note). l(ii) Alternate I (MAY 2002) of 52.225–3. meaning of the Regulatory Flexibility Aside (JUNE 2003) (Pub. L. 103–403, section 304, Small Business Reauthorization and l(iii) Alternate II (MAY 2002) of 52.225– Act, 5 U.S.C. 601, et seq., because the 3. rule does not impose a new policy Amendments Act of 1994). l(ii) Alternate I (MAR 1999) of 52.219–5. l(23) 52.225–5, Trade Agreements (JUNE requirement on small entities. The l(iii) Alternate II (JUNE 2003) of 52.219– 2003) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 changes made by the rule update clause 5. note). references, clarify language, and do not l(5)(i) 52.219–6, Notice of Total Small l(24) 52.225–13, Restrictions on Certain change existing policy. Business Set-Aside (JUNE 2003) (15 U.S.C. Foreign Purchases (JUNE 2003) (E.O. 12722, 644). 12724, 13059, 13067, 13121, and 13129). C. Paperwork Reduction Act l(ii) Alternate I (OCT 1995) of 52.219–6. l(25) 52.225–15, Sanctioned European The Paperwork Reduction Act does l(6)(i) 52.219–7, Notice of Partial Small Union Country End Products (FEB 2000) not apply because the changes to the Business Set-Aside (JUNE 2003) (15 U.S.C. (E.O. 12849). l FAR do not impose information 644). (26) 52.225–16, Sanctioned European l Union Country Services (FEB 2000) (E.O. collection requirements that require the (ii) Alternate I (OCT 1995) of 52.219–7. l(7) 52.219–8, Utilization of Small 12849). approval of the Office of Management Business Concerns (OCT 2000) (15 U.S.C. 637 l(27) 52.232–29, Terms for Financing of and Budget under 44 U.S.C. 3501, et (d)(2) and (3)). Purchases of Commercial Items (FEB 2002) seq. l(8)(i) 52.219–9, Small Business (41 U.S.C. 255(f), 10 U.S.C. 2307(f)). Subcontracting Plan (JAN 2002) (15 U.S.C. l(28) 52.232–30, Installment Payments for List of Subjects in 48 CFR Part 52 637(d)(4)). Commercial Items (OCT 1995) (41 U.S.C. Government procurement. l(ii) Alternate I (OCT 2001) of 52.219–9. 255(f), 10 U.S.C. 2307(f)).
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l(29) 52.232–33, Payment by Electronic required for all subcontracts subject to the 52.213–4 [Amended] Funds Transfer—Central Contractor Service Contract Act of 1965 (41 U.S.C. 351, ■ 2. Amend section 52.213–4 in Registration (MAY 1999) (31 U.S.C. 3332). et seq.). l(30) 52.232–34, Payment by Electronic (vi) 52.247–64, Preference for Privately paragraph (a)(2)(vi) by removing ‘‘(Dec Funds Transfer—Other than Central Owned U.S.-Flag Commercial Vessels (April 2001)’’ and adding ‘‘(Apr 2003)’’ in its Contractor Registration (MAY 1999) (31 2003) (46 U.S.C. Appx 1241 and 10 U.S.C. place. U.S.C. 3332). 2631). Flow down required in accordance 52.244–6 Subcontracts for Commercial l(31) 52.232–36, Payment by Third Party with paragraph (d) of FAR clause 52.247–64. Items. (MAY 1999) (31 U.S.C. 3332). (2) While not required, the contractor May l(32) 52.239–1, Privacy or Security include in its subcontracts for commercial ■ 3. In section 52.244–6, revise the Safeguards (AUG 1996) (5 U.S.C. 552a). items a minimal number of additional section heading to read as set forth l (33)(i) 52.247–64, Preference for clauses necessary to satisfy its contractual above; and in the clause heading, remove Privately Owned U.S.-Flag Commercial obligations. Vessels (APR 2003) (46 U.S.C. Appx 1241 the words ‘‘and Commercial (End of clause) and 10 U.S.C. 2631). Components’’. l(ii) Alternate I (APR 1984) of 52.247–64. * * * * * 52.247–64 [Amended] (c) The Contractor shall comply with the [FR Doc. 03–12307 Filed 5–21–03; 8:45 am] FAR clauses in this paragraph (c), applicable BILLING CODE 6820–EP–P ■ 4. Amend section 52.247–64 in the first to commercial services, that the Contracting parenthetical in the introductory text of Officer has indicated as being incorporated in paragraph (a) by adding ‘‘Appx’’ after this contract by reference to implement DEPARTMENT OF DEFENSE provisions of law or Executive orders ‘‘U.S.C.’’. applicable to acquisitions of commercial GENERAL SERVICES [FR Doc. 03–12308 Filed 5–21–03; 8:45 am] items: [Contracting Officer check as BILLING CODE 6820–EP–P appropriate.] ADMINISTRATION l(1) 52.222–41, Service Contract Act of 1965, as Amended (MAY 1989) (41 U.S.C. NATIONAL AERONAUTICS AND 351, et seq.). SPACE ADMINISTRATION DEPARTMENT OF DEFENSE l(2) 52.222–42, Statement of Equivalent GENERAL SERVICES Rates for Federal Hires (MAY 1989) (29 48 CFR Part 52 U.S.C. 206 and 41 U.S.C. 351, et seq.). ADMINISTRATION l(3) 52.222–43, Fair Labor Standards Act and Service Contract Act—Price Adjustment [FAC 2001–14; Item VIII] NATIONAL AERONAUTICS AND (Multiple Year and Option Contracts) (MAY SPACE ADMINISTRATION 1989) (29 U.S.C. 206 and 41 U.S.C. 351, et Federal Acquisition Regulation; seq.). Technical Amendments 48 CFR Chapter 1 l(4) 52.222–44, Fair Labor Standards Act AGENCIES: and Service Contract Act—Price Adjustment Department of Defense (DoD), Federal Acquisition Regulation; Small (February 2002) (29 U.S.C. 206 and 41 U.S.C. General Services Administration (GSA), Entity Compliance Guide 351, et seq.). and National Aeronautics and Space l (5) 52.222–47, SCA Minimum Wages and Administration (NASA). AGENCIES: Department of Defense (DoD), Fringe Benefits Applicable to Successor General Services Administration (GSA), Contract Pursuant to PreDecemberessor ACTION: Final rule. Contractor Collective Bargaining Agreements and National Aeronautics and Space (CBA) (May 1989) (41 U.S.C. 351, et seq.). SUMMARY: This document makes Administration (NASA). * * * * * amendments to the Federal Acquisition ACTION: Small Entity Compliance Guide. (e)(1) Notwithstanding the requirements of Regulation (FAR) in order to update the clauses in paragraphs (a), (b), (c), and (d) references and make editorial changes. SUMMARY: This document is issued of this clause, the Contractor is not required DATES: Effective Date: June 23, 2003. under the joint authority of the to flow down any FAR clause, other than Secretary of Defense, the Administrator those in paragraphs (i) through (vi) of this FOR FURTHER INFORMATION CONTACT: The of General Services and the paragraph in a subcontract for commercial FAR Secretariat, Room 4035, GS Administrator for the National items. Unless otherwise indicated below, the Building, Washington, DC 20405, (202) Aeronautics and Space Administration. extent of the flow down shall be as required 501–4755, for information pertaining to This Small Entity Compliance Guide has by the clause— status or publication schedules. Please (i) 52.219–8, Utilization of Small Business been prepared in accordance with cite FAC 2001–14, Technical Section 212 of the Small Business Concerns (October 2000) (15 U.S.C. 637(d)(2) Amendments. and (3)), in all subcontracts that offer further Regulatory Enforcement Fairness Act of subcontracting opportunities. If the List of Subjects in 48 CFR Part 52 1996 (Pub. L. 104–121). It consists of a subcontract (except subcontracts to small summary of the rules appearing in business concerns) exceeds $500,000 Government procurement. Federal Acquisition Circular (FAC) ($1,000,000 for construction of any public Dated: May 13, 2003. 2001–14 which amends the FAR. An facility), the subcontractor must include Laura G. Smith, asterisk (*) next to a rule indicates that 52.219–8 in lower tier subcontracts that offer subcontracting opportunities. Director, Acquisition Policy Division. a regulatory flexibility analysis has been (ii) 52.222–26, Equal Opportunity (April ■ prepared in accordance with 5 U.S.C. Therefore, DoD, GSA, and NASA 604. Interested parties may obtain 2002) (E.O. 11246). amend 48 CFR part 52 as set forth below: (iii) 52.222–35, Equal Opportunity for further information regarding these Special Disabled Veterans, Veterans of the PART 52—SOLICITATION PROVISIONS rules by referring to FAC 2001–14 Vietnam Era, and Other Eligible Veterans AND CONTRACT CLAUSES which precedes this document. These (December 2001) (38 U.S.C. 4212). documents are also available via the (iv) 52.222–36, Affirmative Action for ■ 1. The authority citation for 48 CFR Internet at http://www.arnet.gov/far. Workers with Disabilities (June 1998) (29 U.S.C. 793). part 52 is revised to read as follows: FOR FURTHER INFORMATION CONTACT: (v) 52.222–41, Service Contract Act of Authority: 40 U.S.C. 121(c); 10 U.S.C. Laurie Duarte, FAR Secretariat, (202) 1965, as Amended (May 1989), flow down chapter 137; and 42 U.S.C. 2473(c). 501–4225. For clarification of content,
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contact the analyst whose name appears in the table below.
LIST OF RULES IN FAC 2001–14
Item Subject FAR case Analyst
I ...... Geographic Use of the Term ‘‘United States’’ ...... 1999–400 Davis II ...... Miscellaneous Cost Principles ...... 2001–029 Loeb III ...... Prompt Payment Under Cost-Reimbursement Contracts for Services ...... 2000–308 Loeb IV ...... Electronic Signatures ...... 2000–304 Smith V ...... Increased Federal Prison Industries, Inc. Waiver Threshold (Interim) ...... 2003–001 Nelson VI ...... Past Performance Evaluation of Federal Prison Industries Contracts ...... 2001–035 Smith VII ...... Contract Terms and Conditions Required to Implement Statute or Executive Orders—Commercial Items ...... 2000–009 Moss VIII ..... Technical Amendments ......
SUPPLEMENTARY INFORMATION: rule, without change, to implement 8.606(e) from $25 to $2,500 and Summaries for each FAR rule follow. statutory and regulatory changes related eliminates the criterion that delivery is For the actual revisions and/or to late payment of an interim payment required within 10 days. Federal amendments to these FAR cases, refer to under a cost-reimbursement contract for agencies will not be required to make the specific item number and subject set services. The rule is of special interest purchases from FPI of products on FPI’s forth in the documents following these to contracting officers that award or Schedule that are at or below this item summaries. administer these type of contracts. threshold. FAC 2001–14 amends the FAR as The Federal Register notice published specified below: in conjunction with the FAR interim Item VI—Past Performance Evaluation rule stated that ‘‘The policy and clause of Federal Prison Industries Contracts Item I—Geographic Use of the Term apply to all covered contracts awarded (FAR Case 2001–035) ‘‘United States’’ (FAR Case 1999–400) on or after December 15, 2000 * * * This final rule requires agencies to This final rule amends the FAR to agencies may apply the FAR changes evaluate Federal Prison Industries (FPI) clarify the use of the term ‘‘United made by this rule to contracts awarded contract performance. This change will States,’’ when used in a geographic prior to December 15, 2000, at their permit Federal customers to rate FPI sense. The term ‘‘United States’’ is discretion * * * .’’ This was consistent performance, compare FPI to private defined in FAR 2.101 to include the 50 with OMB regulations. Subsequently, as sector providers, and give FPI important States and the District of Columbia. a result of enactment of the National feedback on previously awarded Where a wider area of applicability is Defense Authorization Act for Fiscal contracts. It is expected that this change intended, the term is redefined in the Year 2002 (Pub. L. 107–107) on will give FPI the same opportunity that appropriate part or subpart of the FAR, December 28, 2001, agencies no longer we give private sector providers, to or supplemented by listing the have this discretion. Section 1007 of improve their customer satisfaction, in additional areas of applicability each Public Law 107–107 states that this general, and their performance on time the term is used. This rule corrects policy applies to cost-reimbursement delivery, price, and quality, specifically. and updates references to the United contracts for services awarded before, States throughout the FAR, including a on, or after December 15, 2000. Section Item VII—Contract Terms and new definition of ‘‘outlying areas’’ of the 1007 retains the prohibition against Conditions Required To Implement United States, a term that encompasses payment of late payment interest Statute or Executive Orders— the named outlying commonwealths, penalty for any period prior to Commercial Items (FAR Case 2000–009) territories, and minor outlying islands. December 15, 2000. This final rule amends the clause at Item II—Miscellaneous Cost Principles Item IV—Electronic Signatures (FAR 52.212–5, Contract Terms and (FAR Case 2001–029) Case 2000–304) Conditions Required to Implement This final rule amends the FAR by Recent laws eliminate legal barriers to Statute or Executive Orders— deleting the cost principle at FAR using electronic technology in business Commercial Items, to ensure that 31.205–45, Transportation costs, and transactions, such as the formation and required statutes enacted subsequent to streamlining the cost principles at FAR signing of contracts. This final rule FASA that contain civil or criminal 31.205–10, Cost of money; FAR 31.205– furthers Government participation in penalties or specifically cite their 28, Other business expenses; and FAR electronic commerce when conducting applicability to commercial items are 31.205–48, Deferred research and Government procurements by adding a included on the list, and to ensure that development costs. The rule will only statement at FAR subpart 4.5, Electronic any post-FASA items that did not meet affect contracting officers that are Commerce in Contracting, clarifying this criteria are deleted from the list. In required by a contract clause to use cost that agencies are permitted to accept addition, the pre-FASA clauses and principles for the determination, electronic signatures and records in alternates that were inadvertently left negotiation, or allowance of contract connection with Government contracts. off the list are added. The date of each costs. clause is added to the list to identify Item V—Increased Federal Prison what revision of the listed clause Item III—Prompt Payment Under Cost- Industries, Inc. Waiver Threshold (FAR applies when this clause is added to a Reimbursement Contracts for Services Case 2003–001) contract. (FAR Case 2000–308) This interim rule revises the Federal Item VIII—Technical Amendments The interim rule published in the Acquisition Regulation to increase the Federal Register at 66 FR 53485, Federal Prison Industries, Inc.’s (FPI) These amendments update references October 22, 2001, is converted to a final clearance exception threshold at and make editorial changes at FAR
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52.213–4(a)(2)(vi), 52.244–6 section and Dated: May 13, 2003. clause headings, and 52.247–64(a). Laura G. Smith, Director, Acquisition Policy Division. [FR Doc. 03–12309 Filed 5–21–03; 8:45 am] BILLING CODE 6820–EP–P
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Part IV
Department of Housing and Urban Development 24 CFR Part 5 Open Competition and Government Neutrality Towards Government Contractors’ Labor Relations on Federal and Federally Funded Construction Projects; Interim Rule
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DEPARTMENT OF HOUSING AND 20410–8000; telephone (202) 708–3055 or prohibit bidders, offerors, contractors, URBAN DEVELOPMENT (this is not a toll-free number). Hearing- or subcontractors from entering into or or speech-impaired individuals may adhering to agreements with one or 24 CFR Part 5 access this number via TTY by calling more labor organizations. The Executive the toll-free Federal Information Relay Order also permits agency heads to [Docket No. FR–4695–I–01] Service at (800) 877–8339. exempt a project from its requirements RIN 2501–AC98 SUPPLEMENTARY INFORMATION: under special circumstances, but the exemption may not be related to the Open Competition and Government I. Background possibility of or an actual labor dispute. Neutrality Towards Government On February 17, 2001, President II. This Interim Rule Contractors’ Labor Relations on George W. Bush signed Executive Order Federal and Federally Funded 13202, entitled ‘‘Preservation of Open This interim rule provides for the Construction Projects Competition and Government Neutrality codification of the requirements of Towards Government Contractors’ Labor Executive Order 13202 for HUD AGENCY: Office of the Secretary, HUD. Relations on Federal and Federally programs. The interim rule adds a new ACTION: Interim rule. Funded Construction Projects’’ § 5.108 to HUD’s regulations in 24 CFR (Executive Order 13202 was published part 5, subpart A. The regulations in SUMMARY: This interim rule provides for in the Federal Register on February 22, subpart A of part 5 contain the codification of the requirements of 2001, at 66 FR 11225). The Executive definitions and federal requirements Executive Order 13202 (the Executive Order prohibits the inclusion of generally applicable to all of HUD’s Order), entitled ‘‘Preservation of Open requirements for affiliation with a labor programs. By placing the requirements Competition and Government Neutrality organization as a condition for award of of the Executive Order in those HUD Towards Government Contractors’ Labor any federally funded contract or regulations that contain across-the- Relations on Federal and Federally subcontract for construction. board requirements, HUD is ensuring Funded Construction Projects.’’ The Executive Order 13202 was amended the broadest applicability of the Executive Order provides that, to the by Executive Order 13208, issued on requirements of Executive Order 13202. extent permitted by law, agencies may April 6, 2001. The amendment was to The specific regulatory amendments not permit inclusion of contract add a paragraph (c) to section 5 of that are being made by this interim rule conditions requiring or prohibiting Executive Order 13202. New paragraph are as follows: entering into or adhering to agreements (c) addresses exemption of a project with a labor organization, or otherwise A. Scope of Interim Rule Limited to from the provisions of sections 1 and 3 Federally Funded Contracts discriminating against parties entering of the Executive Order. (Executive Order into or adhering to such agreements, as 13208 was published in the Federal As noted above, Executive Order a condition for award of any federally Register on April 11, 2001, at 66 FR 13202 applies to both construction funded contract or subcontract for 18717.) contracts awarded by a federal agency as construction. The purpose of this rule is In issuing Executive Order 13202, the well as to federally funded construction to ensure compliance by all HUD President revoked Executive Order contracts awarded by the recipient of grantees, recipients of financial 12836 of February 1, 1993, and the federal financial assistance. This interim assistance, parties to cooperative Presidential Memorandum of June 5, rule codifies the requirements for HUD- agreements, contractors, and 1997, entitled ‘‘Use of Project Labor funded construction contracts, but not subcontractors with the requirements of Agreements for Federal Construction for construction contracts awarded by open competition and government Projects.’’ HUD. The Federal Acquisition neutrality in awarding federally funded The purposes of Executive Order Regulatory (FAR) Council has issued contracts or subcontracts for 13202 are to: government-wide regulations construction. • Promote and ensure open implementing the requirements DATES: Effective Date: June 23, 2003. competition on federal and federally regarding federal construction contracts Comment Due Date: July 21, 2003. funded or assisted construction projects; contained in Executive Order 13202 (see • Maintain government neutrality the final rule published on November ADDRESSES: Interested persons are toward government contractors’ labor 22, 2002, at 67 FR 70518). The invited to submit comments regarding relations on federal and federally regulations issued by the FAR Council this rule to the Rules Docket Clerk, funded or assisted construction projects; apply to construction contracts awarded Office of General Counsel, Room 10276, • Reduce construction costs to the by federal agencies, including those Department of Housing and Urban federal government and to the awarded by HUD. Interested readers Development, 451 Seventh Street, SW., taxpayers; should refer to the November 22, 2002, Washington, DC 20410–0500. • Expand job opportunities, final rule for additional information Communications should refer to the especially for small and disadvantaged regarding the requirements applicable to above docket number and title. businesses; federal construction contracts. Facsimile (FAX) comments are not • Prevent discrimination against acceptable. A copy of each government contractors or their B. Neutrality Towards Government communication submitted will be employees based upon labor affiliation Contractors’ Labor Relations on available for public inspection and or lack thereof; thereby promoting the Federally Funded Construction Projects copying between 7:30 a.m. and 5:30 economical, nondiscriminatory, and The new § 5.108 provides that, to the p.m. weekdays at the above address. efficient administration and completion extent permitted by law, the bid FOR FURTHER INFORMATION CONTACT: of federal and federally funded or specifications, project agreements, or Aaron Santa Anna, Assistant General assisted construction projects. other controlling documentation for a Counsel for Regulations, Office of The Executive Order is intended to construction contract awarded by a General Counsel, Department of improve the internal management of the HUD grantee, recipient of financial Housing and Urban Development, 451 Executive Branch. The Executive Order assistance from HUD, or party to a Seventh Street, SW., Washington, DC provides that agencies may not require cooperative agreement with HUD for a
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construction project (or a construction 1. Grants, loans, and advances of requirement is satisfied when prior manager acting on their behalf) shall federal funds; or public procedure is ‘‘impractical, not: 2. Proceeds from loans guaranteed unnecessary, or contrary to the public 1. Require or prohibit bidders, under section 108 of the Housing and interest’’ (see 24 CFR 10.1). For the offerors, contractors, or subcontractors Community Development Act of 1974, following reasons, HUD has determined to enter into or adhere to agreements as amended (42 U.S.C. 5301 et seq.) and that it is unnecessary to delay the with one or more labor organizations on title VI of the Native American Housing effectiveness of this rule in order to the same or other related federally Assistance and Self-Determination Act solicit prior public comments. funded construction project; or of 1996 (25 U.S.C. 4101 et seq.). The To a large extent, the new § 5.108 2. Otherwise discriminate against term ‘‘financial assistance’’ does not repeats the language of Executive Order bidders, offerors, contractors, or include any other contract of insurance 13202, and does not elaborate on or subcontractors for becoming or refusing or guaranty. modify these provisions. The Executive to become or remain signatories, or Under the section 108 and Title VI Order contains specific and detailed otherwise adhere to agreements with loan guarantee programs, recipients requirements concerning the use of one or more labor organizations, on the must pledge a portion of their block project labor agreements in federally same or other related federally funded grant formula allocations as security for construction project. funded construction projects, leaving the guaranteed loans. Accordingly, the few areas to the discretion of individual C. Definitions proceeds from the loan guarantees are federal agencies. Accordingly, HUD’s appropriately considered part of the authority to revise these provisions of The Executive Order defines several recipient’s grant, and within the scope of the terms used throughout the Order, the interim rule in response to public of the definition of ‘‘financial comment would be limited. Where such as ‘‘construction contract’’ and assistance.’’ Other HUD loan insurance ‘‘labor organization,’’ and the interim Executive Order 13202 provides room programs (such as those of the Federal for agency flexibility (such as, for rule adopts these definitions. Housing Administration) are not Accordingly, the new § 5.108 provides example, in the definition of the term dependent on the provision of a HUD ‘‘financial assistance’’), HUD has that the term ‘‘construction contract’’ grant, and therefore not considered to be means a contract for the construction, exercised its discretion narrowly, in ‘‘financial assistance’’ for purposes of order to ensure consistency throughout rehabilitation, alteration, conversion, this interim rule. extension, or repair of buildings, its programs and facilitate compliance highways, or other improvements to real D. Exemptions with the new regulatory requirements. property, including any subcontracts As noted above in this preamble, the For example, the interim rule contains awarded pursuant to such a contract. Executive Order authorizes HUD to a definition of ‘‘financial assistance’’ The interim rule also provides, in exempt a construction project from the that is based on the definition of that accordance with the Executive Order, requirements under certain term contained in other HUD program that the term ‘‘labor organization’’ has circumstances, and the interim rule regulations. the same meaning it has in 42 U.S.C. contains comparable provisions tracking Although HUD believes that good 2000e(d). this language. cause exists to publish this rule for The Executive Order, however, does effect without prior public comment, not establish a definition of the term E. Sanctions HUD recognizes the value of public ‘‘financial assistance.’’ The term The interim rule provides that if HUD comment in the development of its ‘‘financial assistance’’ is a key term used determines that a HUD grantee, regulations. HUD has, therefore, issued throughout the Executive Order, and recipient of financial assistance from these regulations on an interim basis HUD believes that a definition is HUD, or party to a cooperative and has provided the public with a 60- required to ensure the clarity and agreement with HUD (or a construction day comment period. HUD welcomes uniform enforcement of the new § 5.108. manager acting on their behalf), comments on the regulatory HUD is adopting, for purposes of performs in a manner contrary to the amendments made by this interim rule. § 5.108, a definition of the term ‘‘federal requirements of the Executive Order, The public comments will be addressed financial assistance’’ that is based on the HUD will take such action, consistent in the final rule. definition of that term contained in with law and regulations, as HUD IV. Findings and Certifications other HUD regulations. These other determines appropriate. regulations include 24 CFR part 1, Regulatory Flexibility Act regarding nondiscrimination in HUD F. Voluntary Project Labor Agreements programs under title VI of the Civil In accordance with the Executive The Secretary, in accordance with the Rights Act of 1964 (see 24 CFR 1.2), 24 Order, the interim rule specifies that Regulatory Flexibility Act (5 U.S.C. CFR part 3, regarding nondiscrimination nothing in § 5.108 prohibits contractors 605(b)), has reviewed this rule before on the basis of sex in education or subcontractors from voluntarily publication and by approving it certifies programs or activities receiving federal entering into project labor agreements. that this rule does not have a significant financial assistance (see 24 CFR 3.105), economic impact on a substantial and 24 CFR part 8, regarding III. Justification for Interim number of small entities. The interim nondiscrimination based on handicap in Rulemaking rule implements Executive Order 13202, federally assisted HUD programs and HUD generally publishes a rule for which revokes previous requirements activities (see 24 CFR 8.3). HUD believes public comment before issuing a rule for encouraging the inclusion of project that the adoption of a similar definition effect, in accordance with its own labor agreements as a condition for will help to ensure consistency regulations on rulemaking in 24 CFR award of federally funded contracts or throughout HUD’s programs and part 10. However, part 10 provides for subcontracts on construction projects. facilitate compliance with the new exceptions to the general rule if the The Executive Order directs government regulatory requirements. agency finds good cause to omit neutrality towards the use of such The interim rule defines the term advanced notice and public agreements, thus placing the decision of ‘‘financial assistance’’ to include: participation. The good cause whether to enter into a project labor
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agreement with individual contractors Executive Order 13132, Federalism (ii) Proceeds from loans guaranteed and subcontractors. Executive Order 13132 (entitled under section 108 of the Housing and This applies equally to large and ‘‘Federalism’’) prohibits, to the extent Community Development Act of 1974, small entities that seek federally funded practicable and permitted by law, an as amended (42 U.S.C. 5301 et seq.) and construction contracts and does not agency from promulgating a regulation title VI of the Native American Housing establish requirements applicable to that has federalism implications and Assistance and Self-Determination Act entities based on their size. Further, either imposes substantial direct of 1996 (25 U.S.C. 4101 et seq.). The HUD neither requires nor prohibits the compliance costs on state and local term ‘‘financial assistance’’ does not include any other contract of insurance use of project labor agreements on HUD- governments and is not required by or guaranty. funded construction projects. Although statute, or preempts state law, unless the Labor organization has the same some HUD-funded construction projects relevant requirements of section 6 of the meaning it has in 42 U.S.C. 2000e(d). are subject to project labor agreements, Executive Order are met. This rule does (c) Neutrality towards government in many instances this is due to the not have federalism implications and contractors’ labor relations. To the voluntary decision of individual does not impose substantial direct extent permitted by law, the bid contractors and subcontractors. compliance costs on state and local specifications, project agreements, or Therefore, the interim rule will not governments or preempt state law other controlling documents for a significantly revise existing practices or within the meaning of the Executive Order. construction contract awarded on or hiring costs for small contractors and after June 23, 2003, by a HUD grantee, subcontractors participating in HUD’s List of Subjects in 24 CFR Part 5 recipient of financial assistance from construction programs. To the extent the Administrative practice and HUD, or party to a cooperative rule has an impact on small entities, it procedure, Aged, Claims, Drug abuse, agreement with HUD, for a construction should be a positive economic impact Drug traffic control, Grant programs— project (or a construction manager on those small entities that are not housing and community development, acting on their behalf) shall not: union shops, because the rule may Grant programs—Indians, Individuals (1) Require or prohibit bidders, provide additional opportunities to with disabilities, Loan programs— offerors, contractors, or subcontractors work on federally funded construction housing and community development, to enter into or adhere to agreements projects by non-union small businesses. Low and moderate income housing, with one or more labor organizations on Notwithstanding HUD’s Mortgage insurance, Pets, Public the same or other related federally determination that this rule will not housing, Rent subsidies, Reporting and funded construction project; or have a significant economic effect on a recordkeeping requirements. (2) Otherwise discriminate against substantial number of small entities, ■ Accordingly, for the reasons described bidders, offerors, contractors, or HUD specifically invites comments in the preamble, HUD amends 24 CFR subcontractors for becoming or refusing regarding any less burdensome part 5 as follows: to become or remain signatories, or alternatives to this rule that will meet otherwise adhere to agreements with HUD’s objectives as described in this PART 5—GENERAL HUD PROGRAM one or more labor organizations, on the preamble. REQUIREMENTS; WAIVERS same or other related federally funded construction project. Environmental Impact ■ 1. The authority citation for 24 CFR part 5 continues to read as follows: (d) Exemptions—(1) Exemptions due to special circumstances. HUD may A Finding of No Significant Impact Authority: 42 U.S.C. 3535(d), unless with respect to the environment has exempt a particular construction otherwise noted. project, construction contract, been made in accordance with HUD ■ 2. Add § 5.108 to read as follows: subcontract, grant, or cooperative regulations at 24 CFR part 50, which agreement from any requirement of this implement section 102(2)(C) of the § 5.108 Preservation of Open Competition section, if HUD determines that special National Environmental Policy Act of and Government Neutrality Towards circumstances require an exemption in 1969 (42 U.S.C. 4332). The Finding of Government Contractors’ Labor Relations on Federally Funded Construction Projects. order to avert an imminent threat to No Significant Impact is available for public health or safety or to serve the public inspection between the hours of (a) Purpose. This section implements Executive Order 13202 (issued on national security. HUD will not base a 7:30 a.m. and 5:30 p.m. weekdays in the finding of ‘‘special circumstances’’ on Office of the Rules Docket Clerk, Office February 17, 2001), as amended by Executive Order 13208 (issued on April the possibility or presence of a labor of General Counsel, Room 10276, dispute concerning the use of Department of Housing and Urban 6, 2001), entitled ‘‘Preservation of Open Competition and Government Neutrality contractors or subcontractors who are Development, 451 Seventh Street, SW., non-signatories to, or otherwise do not Washington, DC 20410–0500. Towards Government Contractors’ Labor Relations on Federal and Federally adhere to, agreements with one or more Unfunded Mandates Reform Act Funded Construction Projects.’’ labor organizations, or concerning (b) Definitions. For purposes of this employees on the construction project Title II of the Unfunded Mandates section: who are not members of, or affiliated Reform Act of 1995 (UMRA) (2 U.S.C. Construction contract means a with, a labor organization. 1531–1538) establishes requirements for contract for the construction, (2) Exemption of construction projects federal agencies to assess the effects of rehabilitation, alteration, conversion, subject to project labor agreements their regulatory actions on state, local, extension, or repair of buildings, entered into as of June 23, 2003. HUD and tribal governments and the private highways, or other improvements to real may exempt a particular construction sector. This interim rule does not property, including any subcontracts project from any requirement of this impose any federal mandates on any awarded pursuant to such a contract. section upon written request from the state, local, or tribal governments or the Financial assistance includes: HUD grantee, recipient of financial private sector within the meaning of the (i) Grants, loans, and advances of assistance from HUD, or party to a UMRA. federal funds; or cooperative agreement with HUD (or a
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construction manager acting on their prohibitions contained in paragraph (c) will take such action, consistent with behalf), if HUD determines that: of this section; and law and regulations, as HUD determines (i) The HUD grantee, recipient of (ii) One or more construction appropriate. financial assistance from HUD, or party contracts subject to such requirements (f) Voluntarily entering into project to the cooperative agreement with HUD or prohibitions was awarded as of June labor agreements. Nothing in this section prohibits contractors or (or a construction manager acting on 23, 2003. subcontractors from voluntarily entering their behalf) issued, or was a party to, (e) Sanctions. If HUD determines that into project labor agreements. as of June 23, 2003, bid specifications, a HUD grantee, recipient of financial project agreements, agreements with one assistance from HUD, or party to a Dated: April 30, 2003. or more labor organizations, or other cooperative agreement with HUD (or a Mel Martinez, controlling documents with respect to a construction manager acting on their Secretary. particular construction project, that behalf) performs in a manner contrary to [FR Doc. 03–12798 Filed 5–21–03; 8:45 am] contain any of the requirements or the requirements of this section, HUD BILLING CODE 4210–32–P
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Part V
Department of Defense General Services Administration National Aeronautics and Space Administration 48 CFR Part 31 Federal Acquisition Regulation; Application of Cost Principles and Procedures and Accounting for Unallowable Costs; Proposed Rule
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DEPARTMENT OF DEFENSE accounting principles and experience U.S.C. 601, et seq. (FAR case 2002–006), gained from implementation. in correspondence. GENERAL SERVICES The Director of Defense Procurement ADMINISTRATION announced a series of public meetings C. Paperwork Reduction Act in the Federal Register at 66 FR 13712, The Paperwork Reduction Act does NATIONAL AERONAUTICS AND March 7, 2001 (with a ‘‘correction to not apply because the proposed changes SPACE ADMINISTRATION notice’’ published in the Federal to the FAR do not impose information Register at 66 FR 16186, March 23, collection requirements that require the 48 CFR Part 31 2001). Attendees at the public meetings approval of the Office of Management (held on April 19, 2001, May 10–11, and Budget under 44 U.S.C. 3501, et [FAR Case 2002–006] 2001, and June 12, 2001) included seq. RIN: 9000–AJ65 representatives from industry, List of Subjects in 48 CFR Part 31 Government, and other interested Federal Acquisition Regulation; parties who provided views on potential Government procurement. Application of Cost Principles and areas for revision in FAR part 31. The Dated: May 16, 2003. Procedures and Accounting for ad hoc committee reviewed the cost Laura G. Smith, Unallowable Costs principles and procedures and the Director, Acquisition Policy Division. public comments; identified potential AGENCIES: Department of Defense (DoD), changes to the FAR; and submitted Therefore, DoD, GSA, and NASA General Services Administration (GSA), several reports, including draft propose amending 48 CFR part 31 as set and National Aeronautics and Space proposed rules for consideration by the forth below: Administration (NASA). Councils. PART 31—CONTRACT COST ACTION: Proposed rule. The Councils have reviewed the PRINCIPLES AND PROCEDURES reports related to FAR 31.201–6, SUMMARY: The Civilian Agency Accounting for unallowable costs, and 1. The authority citation for 48 CFR Acquisition Council and the Defense FAR 31.204, Application of principles part 31 is revised to read as follows: Acquisition Regulations Council and procedures, and propose the Authority: 40 U.S.C. 121(c); 10 U.S.C. (Councils) are proposing to amend the following revisions: chapter 137; and 42 U.S.C. 2473(c). Federal Acquisition Regulation (FAR) • Add paragraph (c)(2) to FAR 2. Revise section 31.201–6 to read as sections relating to accounting for 31.201–6 to provide specific criteria on follows: unallowable costs and application of the use of sampling as a method to cost principles and procedures. identify unallowable costs and the 31.201–6 Accounting for unallowable DATES: Interested parties should submit acceptability of contractor sampling costs. comments in writing on or before July methods. (a) Costs that are expressly 21, 2003 to be considered in the • Revise the current paragraph (b) of unallowable or mutually agreed to be formulation of a final rule. FAR 31.204, which addresses the unallowable, including mutually agreed ADDRESSES: Submit written comments allowability of subcontract costs, to to be unallowable directly associated clarify the language. costs, shall be identified and excluded to—General Services Administration, • FAR Secretariat (MVA), 1800 F Street, Make a number of editorial changes. from any billing, claim, or proposal This is not a significant regulatory NW., Room 4035, Attn: Laurie Duarte, applicable to a Government contract. A action and, therefore, was not subject to Washington, DC 20405. directly associated cost is any cost that review under Section 6(b) of Executive Submit electronic comments via the is generated solely as a result of Order 12866, Regulatory Planning and Internet to—farcase.2002–[email protected]. incurring another cost, and that would Review, dated September 30, 1993. This Please submit comments only and cite not have been incurred had the other rule is not a major rule under 5 U.S.C. FAR case 2002–006 in all cost not been incurred. When an 804. correspondence related to this case. unallowable cost is incurred, its directly B. Regulatory Flexibility Act associated costs are also unallowable. FOR FURTHER INFORMATION CONTACT: The (b) Costs that specifically become FAR Secretariat, Room 4035, GS The Councils do not expect this designated as unallowable or as Building, Washington, DC, 20405, at proposed rule to have a significant unallowable directly associated costs of (202) 501–4755 for information economic impact on a substantial unallowable costs as a result of a written pertaining to status or publication number of small entities within the decision furnished by a contracting schedules. For clarification of content, meaning of the Regulatory Flexibility officer shall be identified if included in contact Mr. Edward Loeb at (202) 501– Act, 5 U.S.C. 601, et seq., because most or used in computing any billing, claim, 0650. Please cite FAR case 2002–006. contracts awarded to small entities use or proposal applicable to a Government SUPPLEMENTARY INFORMATION: simplified acquisition procedures or are contract. This identification awarded on a competitive, fixed-price A. Background requirement applies also to any costs basis and do not require application of incurred for the same purpose under The DoD Director of Defense the cost principles and procedures that like circumstances as the costs Procurement established a special are discussed in this rule. An Initial specifically identified as unallowable interagency ad hoc committee to Regulatory Flexibility Analysis has, under either this paragraph or paragraph perform a comprehensive review of therefore, not been performed. We invite (a) of this subsection. policies and procedures in FAR Part 31, comments from small businesses and (c)(1) The practices for accounting for Contract Cost Principles and other interested parties. The Councils and presentation of unallowable costs Procedures, related to cost will consider comments from small must be those described in 48 CFR measurement, assignment, and entities concerning the affected FAR 9904.405, Accounting for Unallowable allocation to evaluate the need for each part 31 in accordance with 5 U.S.C. 610. Costs. specific requirement in light of the Interested parties must submit such (2) Statistical sampling is an evolution of generally accepted comments separately and should cite 5 acceptable practice for accounting and
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presenting unallowable costs in accordance with paragraph (f)(1) of 31.204 Application of principles and provided— this subsection (except when such procedures. (i) The statistical sampling results in salary expenses are, themselves, * * * * * an unbiased sample that accurately unallowable). The time spent in (b)(1) For the following subcontract represents the sampling universe; and proscribed activities should be types, costs incurred as reimbursements (ii) The statistical sampling permits compared to total time spent on or payments to a subcontractor are audit verification. company activities to determine if the allowable to the extent the (d) If a directly associated cost is costs are material. Time spent by reimbursements or payments are for included in a cost pool that is allocated employees outside the normal working costs incurred by the subcontractor that over a base that includes the hours should not be considered except are consistent with part 31: unallowable cost with which it is when it is evident that an employee associated, the directly associated cost engages so frequently in company (i) Cost-reimbursement. shall remain in the cost pool. Since the activities during periods outside normal (ii) Fixed-price incentive. unallowable costs will attract their working hours as to indicate that such (iii) Price redeterminable (i.e., fixed- allocable share of costs from the cost activities are a part of the employee’s price contracts with prospective price pool, no further action is required to regular duties. redetermination and fixed-ceiling-price assure disallowance of the directly (3) When a selected item of cost under contracts with retroactive price associated costs. In all other cases, the 31.205 provides that directly associated redetermination). directly associated costs, if material in costs be unallowable, such directly (2) The requirements of paragraph amount, must be purged from the cost associated costs are unallowable only if (b)(1) of this section apply to any tier pool as unallowable costs. determined to be material in amount in above the first firm-fixed-price (e)(1) In determining the materiality of accordance with the criteria provided in subcontract or fixed-price subcontract a directly associated cost, consideration paragraphs (f)(1) and (f)(2) of this with economic price adjustment should be given to the significance of— subsection, except in those situations provisions. (i) The actual dollar amount; where allowance of any of the directly (c) Costs incurred as payments under (ii) The cumulative effect of all associated costs involved would be firm-fixed-price subcontracts or fixed- directly associated costs in a cost pool; considered to be contrary to public price subcontracts with economic price and policy. (iii) The ultimate effect on the cost of 3. Amend section 31.204 in the first adjustment provisions or modifications Government contracts. sentence of paragraph (a) by removing thereto, for which subcontract cost (2) Salary expenses of employees who ‘‘shall be allowed’’ and adding ‘‘are analysis was performed, are allowable if participate in activities that generate allowable’’ in its place; revising the price was negotiated in accordance unallowable costs shall be treated as paragraph (b); and redesignating with 31.102. directly associated costs to the extent of paragraph (c) as paragraph (d) and * * * * * the time spent on the proscribed adding a new paragraph (c) to read as [FR Doc. 03–12892 Filed 5–21–03; 8:45 am] activity, provided the costs are material follows: BILLING CODE 6820–EP–P
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Reader Aids Federal Register Vol. 68, No. 99 Thursday May 22, 2003
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MAY
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. 7 CFR Presidential Documents 3 CFR Executive orders and proclamations 741–6000 1...... 27431 Proclamations: 2...... 27431 The United States Government Manual 741–6000 7668...... 23821 6...... 25479 Other Services 7669...... 23823 15...... 27431 Electronic and on-line services (voice) 741–6020 7670...... 23825 15f...... 27431 7671...... 23827 Privacy Act Compilation 741–6064 28...... 27897 7672...... 23829 Public Laws Update Service (numbers, dates, etc.) 741–6043 29...... 25484 7673...... 24333 TTY for the deaf-and-hard-of-hearing 741–6086 46...... 23377 7674...... 25277 56...... 25484 7675...... 26195 301 ...... 24605, 24613, 26983 ELECTRONIC RESEARCH 7676...... 26197 371...... 27431 7677...... 26199 World Wide Web 868...... 24589 7678...... 27427 932...... 23378 Full text of the daily Federal Register, CFR and other publications 7679...... 27889 985...... 23569, 25486 is located at: http://www.access.gpo.gov/nara Executive Orders: 989...... 25279 Federal Register information and research tools, including Public 12863 (Amended by 1205...... 27898 Inspection List, indexes, and links to GPO Access are located at: 13301) ...... 26981 1410...... 24830 http://www.archives.gov/federallregister/ 12865 (Revoked by 1424...... 24596 13298) ...... 24857 1491...... 26461 E-mail 13069 (Revoked by 1710...... 24335 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13298) ...... 24857 Proposed Rules: an open e-mail service that provides subscribers with a digital 13070 (Amended by 205...... 27941 form of the Federal Register Table of Contents. The digital form 13301) ...... 26981 274...... 23927 of the Federal Register Table of Contents includes HTML and 13047 (Continued by 276...... 23927 PDF links to the full text of each document. Notice of May 16, 278...... 23927 2003) ...... 27425 279...... 23927 To join or leave, go to http://listserv.access.gpo.gov and select 13098 (Revoked by 280...... 23927 Online mailing list archives, FEDREGTOC-L, Join or leave the list 13298) ...... 24857 319...... 27480 (or change settings); then follow the instructions. 13298...... 24857 360...... 23425 PENS (Public Law Electronic Notification Service) is an e-mail 13299...... 25477 930...... 27943 service that notifies subscribers of recently enacted laws. 13300...... 25807 1530...... 23230 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 13301...... 26981 9 CFR and select Join or leave the list (or change settings); then follow 13212 (Amended by the instructions. 13302) ...... 27429 82...... 26986, 26988 13302...... 27429 91...... 26990 FEDREGTOC-L and PENS are mailing lists only. We cannot Administrative Orders: respond to specific inquiries. Proposed Rules: Memorandums: 2...... 24052 Reference questions. Send questions and comments about the Memorandum of May 130...... 25308 Federal Register system to: [email protected] 6, 2003 ...... 25275 The Federal Register staff cannot interpret specific documents or Memorandum of May 10 CFR regulations. 7, 2003 ...... 26457 20...... 27903 Presidential 40...... 25281 Determinations: FEDERAL REGISTER PAGES AND DATE, MAY 70...... 23574 No. 2003-22 of May 6, 71...... 23574 23183–23376...... 1 2003 ...... 25809 72...... 23183 23377–23568...... 2 No. 2003-23 of May 7, 73...... 23574 2003 ...... 26459 23569–23884...... 5 150...... 25281 Notices: Proposed Rules: 23885–24332...... 6 Notice of May 16, 20...... 23618 24333–24604...... 7 2003 ...... 27425 24605–24858...... 8 50...... 26511 490...... 23620 24859–25278...... 9 5 CFR 25279–25478...... 12 213...... 24605 11 CFR 25479–25808...... 13 Ch. XIV ...... 23885 Proposed Rules: 25809–26200...... 14 2424...... 23885 104...... 26237 26201–26456...... 15 2429...... 23885 107...... 26237 26457–26980...... 16 2471...... 23885 110...... 26237 26981–27426...... 19 2472...... 23885 9003...... 26237 27427–27726...... 20 2606...... 27891 9004...... 26237 27727–27890...... 21 Proposed Rules: 9008...... 26237 27891–28110...... 22 2601...... 23876 9032...... 26237
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9033...... 26237 239...... 25788 25 CFR 27464, 27466, 27469, 27727 9034...... 26237 240...... 25788 Proposed Rules: Proposed Rules: 9035...... 26237 241...... 25281 170...... 23631 62...... 25855 9036...... 26237 249...... 25788 66...... 25855 9038...... 26237 250...... 25788 26 CFR 67...... 25855 259...... 25788 72...... 25855, 28052 12 CFR 1 ...... 23586, 24349, 24351, 260...... 25788 24644, 24880 100...... 27498 21...... 25090 269...... 25788 301...... 24644 110...... 27501 208...... 25090 270...... 25131 602...... 24644 117...... 27498, 27504 274...... 25788 165 ...... 23935, 24406, 24408, 211...... 25090 Proposed Rules: 26247, 27501, 27948 326...... 25090 Proposed Rules: 1 ...... 23632, 23931, 24404, 401...... 25546 563...... 25090 240...... 27722 24405, 24406, 24898, 24903, 740...... 23381 18 CFR 25310, 25845, 27493 34 CFR 748...... 25090 54...... 24406 674...... 25821 Proposed Rules: 375...... 25814 602...... 24406 11...... 27753 376...... 25814 682...... 25821 16...... 27753 Proposed Rules: 27 CFR 685...... 25821 Ch. 6 ...... 26551 35...... 24679 Proposed Rules: 36 CFR 613 ...... 23425, 23426, 27757 4...... 24903 19 CFR Proposed Rules: 614...... 27757 5...... 24903 618...... 27757 178...... 24052 251...... 25748, 25751 7...... 24903 1280...... 23430 9...... 25851 14 CFR 20 CFR 13...... 24903 37 CFR 1...... 25486 Proposed Rules: Proposed Rules: 11...... 25486 404...... 23192, 24896 28 CFR 262...... 23241, 27506 25 ...... 24336, 24338, 26991 416...... 23192, 24896 Proposed Rules: 39 ...... 23183, 23186, 23190, 513...... 25545 38 CFR 23384, 23387, 23575, 23886, 21 CFR 2...... 25503 24614, 24861, 25488, 25811, 29 CFR Ch. 1 ...... 24879 4...... 25822 26201, 26478, 26481, 26482, 10...... 25283 Proposed Rules: Proposed Rules: 27450 14...... 25283 1480...... 23634 39...... 23249 71 ...... 23577, 23579, 23580, 20...... 25283 1910...... 23528 23581, 23682, 24340, 24341, 310...... 24347 4022...... 26206 39 CFR 24342, 24864, 24866, 24868, 314...... 25283 4044...... 26206 Proposed Rules: 24869, 24870, 24871, 24872, 358...... 24347 111...... 23937, 27760 24874, 25489, 25491, 25492, 510...... 26995 30 CFR 25493, 25494, 25495, 25684, 522...... 26995 36...... 23892 40 CFR 26202, 26687, 26993, 26994 520...... 26204 917...... 24644 51...... 25684 73...... 25495 522...... 26205 948...... 24355 52 ...... 23206, 23207, 23404, 77...... 23583 558...... 27727 950...... 24647 23597, 23604, 24363, 24365, 97 ...... 23888, 23889, 26484, 573...... 27904 24368, 24885, 25414, 25418, 26486 31 CFR 720...... 25283 25442, 25504, 26210, 26212, 382...... 24874 1300...... 23195 103 ...... 25090, 25149, 25113, 26492, 26495, 27471, 27908 Proposed Rules: 1310...... 23195 25163, 26489, 26996 62 ...... 23209, 25291, 27911 3...... 23808, 27006 Proposed Rules: 315...... 24794 63 ...... 23898, 24562, 24653, 25...... 26237 1 ...... 23630, 25242, 25188 351...... 24794 26690, 27646, 27913 39 ...... 23231, 23235, 23427, 11...... 25188 353...... 24794 71...... 25507 23620, 24383, 25543, 26239, 16...... 25242 359...... 24794 80...... 24300 26242, 26244, 26552, 26553, 101...... 23930 360...... 24794 81 ...... 24368, 25418, 25442, 27006, 27492 111...... 27008 363...... 24794 26212 71 ...... 23622, 23624, 23625, 112...... 27008 Proposed Rules: 89...... 25823 23626, 27007, 27946 315...... 27008 103 ...... 23640, 23646, 23653, 180 ...... 24370, 25824, 25831, 119...... 24810 601...... 27008 25163 27729, 27740 121...... 24810 1308...... 26247 271...... 23407, 23607 135...... 24810 1310...... 24689 32 CFR 300 ...... 23211, 27746, 27931, 145...... 24810 3...... 27452 22 CFR 27933 255 ...... 24896, 25844, 27948 207...... 27904 312...... 24888 330...... 23627 32...... 26488 311...... 24880 438...... 25686 399 ...... 24896, 25844, 27948 42...... 24638 505...... 25816 Proposed Rules: 121...... 25088 806B ...... 24881 15 CFR Ch. 1...... 24410, 25312 228...... 23891 Proposed Rules: 52 ...... 23270, 23430, 23661, 0...... 24878 23 CFR 3...... 27497 23662, 24416, 24417, 25547, 270...... 24343 701...... 24904 26248, 26556, 27513 902...... 24615 140...... 24639 60...... 24692 646...... 24639 33 CFR 16 CFR 62 ...... 23272, 25313, 27953 661...... 24642 100 ...... 25817, 25818, 27459 63...... 26249 305...... 23584 Proposed Rules: 110...... 25496 71...... 25548 Proposed Rules: 630...... 23239, 24384 117 ...... 23390, 23590, 24882, 80...... 24311 309...... 24669 24883, 25818, 26208, 27460 81...... 26248 24 CFR 160...... 27907 146...... 23666, 23673 17 CFR 5...... 28102 165 ...... 23390, 23393, 23399, 258...... 25550 42...... 25149 200...... 26946 23591, 23594, 23595, 23893, 300...... 23939, 27954 211...... 26840 203...... 23370 23894, 23896, 24359, 24361, 230...... 25788 Proposed Rules: 24883, 25288, 25498, 25500, 41 CFR 232...... 24345, 25788 1000...... 26555 25818, 26208, 26490, 27462, 301-53...... 27936
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301-74...... 27936 47 CFR 28...... 28079 180...... 24653 0...... 26997 29...... 28079 209...... 24891 42 CFR Ch. 1 ...... 25840 31...... 28079, 28091 383...... 23844 8...... 27937 1 ...... 23417, 25841, 26997 32...... 28092 384...... 23844 Proposed Rules: 2...... 25512 35...... 28079 571...... 23614, 24664 409...... 26758 52...... 25843 36...... 28079 1510...... 27747 412...... 26786, 27154 73 ...... 23613, 23900, 23901, 42...... 28079, 28095 1511...... 27747 413...... 26758, 27154 25512, 25542, 26220, 26497, 45...... 28079 1570...... 23852 440...... 26758 27478, 27939, 27940 47...... 28079, 28091 1572...... 23852 52 ...... 28079, 28091, 28092, 483...... 26758 74...... 25512, 26220 Proposed Rules: 28096, 28098 76...... 26997 193...... 23272 53...... 28079 43 CFR 78...... 26997 571...... 26269, 26384 511...... 24372 Proposed Rules: 80...... 25512 516...... 24372 572...... 24417 4...... 27955 90...... 25512 1137...... 23947, 25859 97...... 25512 532...... 24372 44 CFR Proposed Rules: 538...... 24372 1...... 23431 546...... 24372 50 CFR 64...... 23408 552...... 24372 15...... 23677 17 ...... 25934, 26498, 28054 65...... 27473 1802...... 23423 67...... 23898, 27477 64...... 25313 216...... 24905 73 ...... 24417, 26556, 26557, 1806...... 23423 Proposed Rules: 300...... 23224, 23901 27767, 27960, 27961 1815...... 23423 67 ...... 23941, 27514, 27515 1816...... 23423 600...... 23901, 26230 48 CFR 1843...... 23423 660...... 27004 45 CFR 622...... 26230 Ch. 1...... 28078, 28098 1845...... 23424 648 ...... 24914, 25305, 26510 2...... 25838 2 ...... 28079, 28091, 28092 Proposed Rules: 660 ...... 23901, 23913, 23924 32...... 24052 3...... 28079 31...... 28108 148...... 23410 4...... 28079, 28093 208...... 26265 679 ...... 23925, 24615, 24667, 301...... 25293 5...... 28079 219...... 26265 24668, 27479 302...... 25293 6...... 28079 252...... 26265 Proposed Rules: 303...... 25293 8 ...... 28079, 28094, 28095 245...... 25313 17...... 27961 304...... 25293 9...... 28079 18...... 24700 307...... 25293 14...... 28079 49 CFR 20...... 24324 1309...... 23212 19...... 28079 107...... 23832, 24653 216...... 24905 22...... 28079 171...... 23832, 24653 622...... 23686 46 CFR 23...... 28079 173...... 24653 648 ...... 23275, 23948, 23949, Proposed Rules: 25...... 28079 176...... 23832 24914, 27516, 27768, 27774 540...... 23947 26...... 28079 177...... 23832, 24653 660 ...... 26557, 27969, 27972
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REMINDERS HEALTH AND HUMAN Safe and suitable binder or California; comments due by The items in this list were SERVICES DEPARTMENT antimicrobial agent usage 5-27-03; published 4-15- editorially compiled as an aid Food and Drug in products with standards 03 [FR 03-09164] to Federal Register users. Administration of identity or composition; Florida; comments due by Inclusion or exclusion from Animal drugs, feeds, and comments due by 5-29- 5-27-03; published 4-15- this list has no legal related products: 03; published 4-29-03 [FR 03 [FR 03-09165] 03-10392] significance. Biuret, feed-grade; published Texas; comments due by 5- 5-22-03 COMMERCE DEPARTMENT 27-03; published 4-15-03 National Oceanic and [FR 03-09170] RULES GOING INTO HEALTH AND HUMAN Atmospheric Administration SERVICES DEPARTMENT FEDERAL MARITIME EFFECT MAY 22, 2003 Fishery conservation and COMMISSION Human drugs: management: Passenger vessel financial Opiate addiction; opioid DEFENSE DEPARTMENT Alaska; fisheries of responsibility: drugs use in maintenance Exclusive Economic Federal Acquisition Regulation Performance and casualty and detoxification Zone— (FAR): rules, Alternative Dispute treatment Bering Sea and Aleutian Cost-reimbursement Resolution program, etc.; List additions; published Islands groundfish; contracts for services; miscellaneous 5-22-03 Pacific cod; comments prompt payment; amendments; oral due by 5-27-03; published 5-22-03 HOMELAND SECURITY comments and hearing; published 4-25-03 [FR Federal Prison Industries, DEPARTMENT comments due by 5-30- 03-10282] Inc.; increased waiver Coast Guard 03; published 4-8-03 [FR Caribbean, Gulf, and South threshold; published 5-22- Drawbridge operations: 03-08611] 03 Atlantic fisheries— Massachusetts; published 5- Gulf of Mexico shrimp; HOMELAND SECURITY Technical amendments; 14-03 DEPARTMENT published 5-22-03 comments due by 5-29- Texas; published 5-15-03 03; published 4-29-03 Coast Guard Wendell H. Ford Aviation Ports and waterways safety: [FR 03-10558] Ports and waterways safety: Investment and Reform Act Northeastern United States Hampton Roads, VA; for 21st Century; Vessels arriving in or fisheries— regulated navigation area; implementation: departing from U.S. ports; notification requirements Northeast multispecies; comments due by 5-29- Excess DOD aircraft sales Partial suspension; comments due by 5-27- 03; published 4-29-03 [FR to persons or entities 03; published 4-24-03 03-10214] providing oil spill response published 5-22-03 [FR 03-10163] Port Valdez and Valdez services; published 5-22- NATIONAL AERONAUTICS Narrows, AK; security 03 AND SPACE COMMERCE DEPARTMENT Patent and Trademark Office zone; comments due by ENVIRONMENTAL ADMINISTRATION Patent cases: 5-27-03; published 3-27- PROTECTION AGENCY Federal Acquisition Regulation 03 [FR 03-07299] (FAR): Fee revisions (2004 FY); Air pollutants, hazardous; comments due by 5-30- Portland Captain of Port national emission standards: Cost-reimbursement 03; published 4-30-03 [FR Zone, OR; safety zones; Semiconductor contracts for services; 03-10583] comments due by 5-27- prompt payment; manufacturing operations; Trademarks: 03; published 3-27-03 [FR published 5-22-03 published 5-22-03 Madrid Protocol 03-07300] FEDERAL Federal Prison Industries, Implementation Act; rules Regattas and marine parades: COMMUNICATIONS Inc.; increased waiver of practice— Thunder on the Narrows COMMISSION threshold; published 5-22- International applications boat races; comments Radio frequency devices: 03 and registrations; due by 5-30-03; published Ultra-wideband transmission Technical amendments; trademark-related filings; 3-31-03 [FR 03-07545] published 5-22-03 systems; unlicensed comments due by 5-27- HOMELAND SECURITY operation; published 4-22- TRANSPORTATION 03; published 3-28-03 DEPARTMENT [FR 03-07392] 03 DEPARTMENT Customs Service ENVIRONMENTAL GENERAL SERVICES Federal Aviation Andean Trade Promotion and PROTECTION AGENCY ADMINISTRATION Administration Drug Eradication Act; Federal Acquisition Regulation Airworthiness directives: Air quality implementation implementation; comments (FAR): Air Tractor, Inc.; published plans; approval and due by 5-27-03; published promulgation; various Cost-reimbursement 4-3-03 3-25-03 [FR 03-06867] States: contracts for services; British Aerospace; published Alabama; comments due by INTERIOR DEPARTMENT prompt payment; 4-3-03 Minerals Management published 5-22-03 5-27-03; published 4-24- Eurocopter France; 03 [FR 03-10061] Service Federal Prison Industries, published 4-17-03 California; comments due by Outer Continental Shelf; oil, Inc.; increased waiver McDonnell Douglas; 5-27-03; published 4-25- gas, and sulphur operations: threshold; published 5-22- published 4-17-03 03 [FR 03-10267] OCS rights-of-use and 03 Stemme GmbH & Co. KG; Florida; comments due by easement and pipeline Technical amendments; published 4-3-03 5-27-03; published 4-24- rights-of-way; published 5-22-03 03 [FR 03-10063] requirements revision; Federal travel: comments due by 5-27- COMMENTS DUE NEXT Idaho and Oregon; Promotional materials; comments due by 5-27- 03; published 4-24-03 [FR conference planning; WEEK 03; published 4-24-03 [FR 03-10173] clarification; published 5- 03-10066] Royalty management: 22-03 AGRICULTURE FEDERAL Marginal properties; GOVERNMENT ETHICS DEPARTMENT COMMUNICATIONS accounting and auditing OFFICE Food Safety and Inspection COMMISSION relief; comments due by Privacy Act; implementation; Service Radio stations; table of 5-30-03; published 3-31- published 5-22-03 Meat and poultry inspection: assignments: 03 [FR 03-06703]
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Relief or reduction in rates; 03; published 3-25-03 [FR TREASURY DEPARTMENT pamphlet) form from the deep gas provisions; 03-07003] Alcohol and Tobacco Tax Superintendent of Documents, comments due by 5-27- U.S. Government Printing Empresa Brasileira de and Trade Bureau 03; published 3-26-03 [FR Office, Washington, DC 20402 Aeronautica, S.A. Alcohol; vitcultural area 03-07353] (phone, 202–512–1808). The (EMBRAER); comments designations: text will also be made INTERIOR DEPARTMENT due by 5-29-03; published Red Hill, Douglas County, available on the Internet from Surface Mining Reclamation 4-29-03 [FR 03-10236] OR; comments due by 5- and Enforcement Office 27-03; published 4-24-03 GPO Access at http:// Pratt & Whitney; comments www.access.gpo.gov/nara/ Permanent program and [FR 03-10095] due by 5-27-03; published nara005.html. Some laws may abandoned mine land 3-25-03 [FR 03-06997] VETERANS AFFAIRS not yet be available. reclamation plan DEPARTMENT submissions: Rolls-Royce plc; comments Adjudication; pensions, H.R. 289/P.L. 108–23 Kentucky; comments due by due by 5-27-03; published compensation, dependency, 3-25-03 [FR 03-07004] Ottawa National Wildlife 5-29-03; published 4-29- etc.: Refuge Complex Expansion 03 [FR 03-10533] Textron Lycoming; Chronic lymphocytic and Detroit River International SOCIAL SECURITY comments due by 5-27- leukemia; presumptive Wildlife Refuge Expansion Act ADMINISTRATION 03; published 3-25-03 [FR service connection; (May 19, 2003; 117 Stat. 704) Organization and procedures: 03-06998] comments due by 5-27- Last List May 16, 2003 Assignment of Social Airworthiness standards: 03; published 3-26-03 [FR Security numbers for 03-07221] Special conditions— nonwork purposes; Public Laws Electronic evidence requirements; Learjet Model 24/25 LIST OF PUBLIC LAWS Notification Service comments due by 5-27- Series airplanes; (PENS) 03; published 3-26-03 [FR comments due by 5-29- This is a continuing list of 03-07188] 03; published 4-29-03 public bills from the current TRANSPORTATION [FR 03-10450] session of Congress which PENS is a free electronic mail DEPARTMENT Class E airspace; comments have become Federal laws. It notification service of newly Federal Aviation due by 5-29-03; published may be used in conjunction enacted public laws. To Administration 3-31-03 [FR 03-07663] with ‘‘PLUS’’ (Public Laws subscribe, go to http:// Airworthiness directives: Update Service) on 202–741– listserv.gsa.gov/archives/ TRANSPORTATION Boeing; comments due by 6043. This list is also publaws-l.html DEPARTMENT available online at http:// 5-27-03; published 5-1-03 Note: This service is strictly [FR 03-10727] Maritime Administration www.nara.gov/fedreg/ plawcurr.html. for E-mail notification of new Bombardier; comments due Coastwise trade laws; laws. The text of laws is not by 5-29-03; published 4- administrative waivers for The text of laws is not available through this service. 29-03 [FR 03-10235] eligible vessels; comments published in the Federal PENS cannot respond to CFM International; due by 5-30-03; published Register but may be ordered specific inquiries sent to this comments due by 5-27- 4-30-03 [FR 03-10578] in ‘‘slip law’’ (individual address.
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