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1 II Federal Register / Vol. 68, No. 128 / Thursday, July 3, 2003
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2 III
Contents Federal Register Vol. 68, No. 128
Thursday, July 3, 2003
Administration on Aging Virginia, 39896 See Aging Administration Coast Guard Advisory Council on Historic Preservation RULES See Historic Preservation, Advisory Council Navigation and navigable waters; technical, organizational, and conforming amendments Aging Administration Correction, 40024 NOTICES Grants and cooperative agreements; availability, etc.: Commerce Department Performance Measures Outcomes Project, 39953–39954 See Foreign-Trade Zones Board See International Trade Administration Agricultural Marketing Service See National Oceanic and Atmospheric Administration RULES Meats, prepared meats, and meat products; certification and Committee for Purchase From People Who Are Blind or standards: Severely Disabled Federal meat grading and certification services; fee NOTICES changes, 39805–39807 Procurement list; additions and deletions, 39894–39896 PROPOSED RULES National dairy promotion and research program: Copyright Office, Library of Congress National Dairy Promotion and Research Board; RULES membership, 39861–39863 Copyright Arbitration Royalty Panel rules and procedures: Digital performance of sound recordings by preexisting Agriculture Department subscription services; reasonable rates and terms See Agricultural Marketing Service determination, 39837–39841
Alcohol and Tobacco Tax and Trade Bureau Defense Department RULES See Army Department Alcohol; viticultural area designations: See Engineers Corps Seneca Lake, NY, 39833–39836 See Navy Department PROPOSED RULES Army Department Federal Acquisition Regulation (FAR): See Engineers Corps Cost accounting standards administration, 40103–40114 NOTICES Patent licenses; non-exclusive, exclusive, or partially Education Department exclusive: NOTICES Aperture stop with low backscattering, 39901 Grants and cooperative agreements; availability, etc.: Continuous aimpoint tracking system, 39901–39902 Special education and rehabilitative services— Soft landing assembly for parachute, 39902 Children with disabilities; technical assistance and dissemination to improve services and results, Arts and Humanities, National Foundation 39902–39905 See National Foundation on the Arts and the Humanities Employment and Training Administration Blind or Severely Disabled, Committee for Purchase From NOTICES People Who Are Adjustment assistance: See Committee for Purchase From People Who Are Blind American Quality Ceramics, 39975 or Severely Disabled Blandin Paper Co., 39975–39976 Culp, Inc., 39977–39978 Centers for Medicare & Medicaid Services Factory Services, Inc., 39978 NOTICES General Electric Industrial Systems, 39978–39979 Agency information collection activities; proposals, GE Transportation Systems Global Signaling, 39978 submissions, and approvals, 39954 Gilinsky Logging, Inc., 39979 International Comfort Products Corp., 39980 Citizenship and Immigration Services Bureau John Schandelmeier et al., 39980–39981 NOTICES Marion Plywood Corp., 39981 Agency information collection activities; proposals, Maverick Tube Corp., 39981–39982 submissions, and approvals, 39956–39957 NABCO, Inc., 39982 Plastene Supply Co., 39982 Civil Rights Commission R.A.G.S., Inc., 39982 NOTICES Roseburg Forest Products, 39982–39983 Meetings; State advisory committees: Sprint United Management Co., 39983 Delaware, 39896 Stoneridge, Inc., 39983 Massachusetts, 39896 Straits Steel & Wire Co., 39983–39984
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Swag-Nit, Inc., 39984 Hart Hydroelectric Project, Hart, MI, 39933–39934 Texas Instruments, Inc., 39984 Environmental statements; notice of intent: TSI Graphics, Inc., 39984 Algonquin Gas Transmission Co. et al., 39934–39936 Adjustment assistance and NAFTA transitional adjustment Hydroelectric applications, 39936–39938 assistance: Meetings: Certainteed Corp. et al., 39976–39977 Western Energy Infrastructure Conference; technical NAFTA transitional adjustment assistance: conference, 39938–39939 Delphi Automotive Systems Corp., 39984–39985 Practice and procedure: Off-the-record communications, 39939–39940 Energy Department Applications, hearings, determinations, etc.: See Federal Energy Regulatory Commission AES Somerset, LLC, 39906 American Electric Power Service Corp. et al., 39906– Engineers Corps 39920 NOTICES Blumenthal, Richard, et al., 39920–39921 Meetings: East Tennessee Natural Gas Co., 39921 Coastal Engineering Research Board, 39902 Enron Power Marketing, Inc., et al, 39921–39929 Equitrans, L.P., 39929 Environmental Protection Agency Kinder Morgan Interstate Gas Transmission LLC, 39930 RULES PJM Interconnection, L.L.C., 39938 Air quality implementation plans: Southern Natural Gas Co., 39930 Preparation, adoption, and submittal— Sunflower Electric Power Corp. et al., 39930–39931 Regional haze rule; Western States and Indian tribes; Tennessee Gas Pipeline Corp., 39931 mobile source provisions, 39842–39846 Watts United Power, 39931–39932 Pesticides; tolerances in food, animal feeds, and raw White Pine Copper Refinery, Inc., 39932 agricultural commodities: Wyoming Interstate Co., Ltd., 39932 Fludioxonil, 39846–39853 PROPOSED RULES Air quality implementation plans: Federal Housing Finance Board Preparation, adoption, and submittal— RULES Regional haze rule; Western States and Indian tribes; Privacy Act and Freedom of Information Act; mobile source provisions, 39888–39892 implementation, 39810–39815 Civil monetary penalties; inflation adjustment, 39882– NOTICES 39887 Privacy Act: NOTICES Systems of records, 39947–39951 Environmental statements; availability, etc.: Agency statements— Federal Railroad Administration Comment availability, 39940–39941 NOTICES Weekly receipts, 39940 Grants and cooperative agreements; availability, etc.: Environmental statements; notice of intent: Next Generation High-Speed Rail Program, 40018–40020 Ocean-dredged material disposal sites— Newport Bay, Orange County, CA, 39941–39942 Federal Reserve System Pesticide, food, and feed additive petitions: RULES Interregional Research Project (No. 4), 39942–39947 Bank holding companies and change in bank control Executive Office of the President (Regulation Y): See Trade Representative, Office of United States Commodities underlying derivative contracts; title delivery, 39807–39810 Federal Aviation Administration NOTICES Agency information collection activities; proposals, RULES submissions, and approvals, 39951–39952 Airworthiness directives: Banks and bank holding companies: Hartzell Propeller, Inc., et al., 39815–39831 PROPOSED RULES Formations, acquisitions, and mergers, 39952 Airworthiness directives: Permissible nonbanking activities, 39952 Pilatus Aircraft Ltd, 39870–39873 Fish and Wildlife Service Federal Bureau of Investigation RULES NOTICES Endangered and threatened species: Agency information collection activities; proposals, Canada lynx, 40075–40101 submissions, and approvals, 39971–39973 PROPOSED RULES Endangered and threatened species: Federal Election Commission California tiger salamander, 39892–39893 NOTICES NOTICES Meetings; Sunshine Act, 39947 Agency information collection activities; proposals, submissions, and approvals, 39959–39960 Federal Energy Regulatory Commission Endangered and threatened species and marine mammal NOTICES permit applications, 39960–39962 Environmental statements; availability, etc.: Endangered and threatened species permit applications, AES Ocean Express, L.L.C., 39933 39960–39961
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Environmental statements; availability, etc.: See Indian Affairs Bureau Incidental take permits— See National Park Service El Paso County, CO; Preble’s meadow jumping mouse, See Reclamation Bureau 39962–39963 RULES Marine mammal permit applications, 39963–39964 Native American Graves Protection and Repatriation Act; implementation: Food and Drug Administration Civil penalties on museums that fail to comply with Act RULES Correction, 39853–39854 Food for human consumption: NOTICES Food labeling— Privacy Act: D-tagatose and dental caries; health claims, 39831– Systems of records, 39958–39959 39833 PROPOSED RULES Internal Revenue Service Food for human consumption: NOTICES Milk, cream, and yogurt products; lowfat and nonfat Agency information collection activities; proposals, yogurt standards revocation petition; yogurt and submissions, and approvals, 40020–40022 cultured milk standards amendment, 39873–39877 NOTICES International Trade Administration Agency information collection activities; proposals, NOTICES submissions, and approvals, 39954–39955 Antidumping: Reports and guidance documents; availability, etc.: High and ultra-high voltage ceramic station post Blood and plasma donor interview process streamlining; insulators from— self-administered questionnaire recommendations, Japan, 39897 39955–39956 Welded carbon steel pipes and tubes from— India, 39897–39898 Foreign-Trade Zones Board NOTICES Applications, hearings, determinations, etc.: International Trade Commission Ohio, 39896–39897 NOTICES Meetings; Sunshine Act, 39971 General Services Administration PROPOSED RULES Justice Department Federal Acquisition Regulation (FAR): See Federal Bureau of Investigation Cost accounting standards administration, 40103–40114 See Justice Programs Office See Juvenile Justice and Delinquency Prevention Office Health and Human Services Department NOTICES See Aging Administration Agency information collection activities; proposals, See Centers for Medicare & Medicaid Services submissions, and approvals, 39971 See Food and Drug Administration NOTICES Justice Programs Office Meetings: NOTICES Human Research Protections, Secretary’s Advisory Agency information collection activities; proposals, Committee, 39953 submissions, and approvals, 39973
Historic Preservation, Advisory Council Juvenile Justice and Delinquency Prevention Office NOTICES NOTICES Senior Executive Service: Meetings: Performance Review Board; membership, 39894 Juvenile Justice and Delinquency Prevention Coordinating Council, 39973–39974 Homeland Security Department See Citizenship and Immigration Services Bureau See Coast Guard Labor Department See Employment and Training Administration Housing and Urban Development Department See Mine Safety and Health Administration NOTICES See Occupational Safety and Health Administration Grants and cooperative agreements; availability, etc.: NOTICES Facilities to assist homeless— Agency information collection activities; proposals, Excess and surplus government property, 39957 submissions, and approvals, 39974–39975
Indian Affairs Bureau Library of Congress NOTICES See Copyright Office, Library of Congress Tribal-State Compacts approval; Class III (casino) gambling: Colorado River Indian Tribes et al., AZ, 39964 Mine Safety and Health Administration Ho-Chunk Nation, WI, 39964 PROPOSED RULES Sokaogon Chippewa Community, WI, 39964 Coal mine safety and health: Underground coal mine operators’ dust control plans and Interior Department compliance sampling for respirable dust; verification; See Fish and Wildlife Service extension of comment period, 39881–39882
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National Aeronautics and Space Administration National Science Foundation PROPOSED RULES NOTICES Federal Acquisition Regulation (FAR): Antarctic Conservation Act of 1978; permit applications, Cost accounting standards administration, 40103–40114 etc., 39986
National Credit Union Administration Navy Department PROPOSED RULES NOTICES Credit unions: Meetings: Economic Growth and Regulatory Paperwork Reduction Naval Research Advisory Committee, 39902 Act of 1996; implementation— Regulatory review for reduction of burden on federally- Nuclear Regulatory Commission insured credit unions, 39863–39866 PROPOSED RULES Organization and operations— Early site permits, standard design certifications, and Loan participation regulations; definition clarifications, combined licenses for nuclear power plants, 40025– 39866–39868 40074 Share insurance and appendix— NOTICES Share insurance regulations; clarification and Environmental statements; availability, etc.: simplification, 39868–39870 Rochester Gas & Electric Corp., 39986–39987
National Foundation on the Arts and the Humanities Occupational Safety and Health Administration NOTICES PROPOSED RULES Meetings: Construction safety and health standards: Combined Arts Advisory Panel, 39986 Crane and Derrick Negotiated Rulemaking Advisory Committee— National Labor Relations Board Meetings, 39880–39881 RULES Membership list, 39877–39880 Unfair labor practice charge, dismissal by Regional Director; NOTICES General Counsel appeals procedures, 39836–39837 Agency information collection activities; proposals, submissions, and approvals, 39985–39986 National Oceanic and Atmospheric Administration NOTICES Office of United States Trade Representative Fishery conservation and management: See Trade Representative, Office of United States Caribbean, Gulf of Mexico, and South Atlantic— Gulf of Mexico; greater amberjack, 39898–39900 Personnel Management Office Marine mammals: NOTICES Taking and importation— Agency information collection activities; proposals, Ecuador; yellowfin tuna and tuna products harvested submissions, and approvals, 39987–39988 with purse seine vessels, etc., in eastern tropical Excepted service: Pacific Ocean; affirmative finding renewed, 39900– Schedules A, B, and C; positions placed or revoked— 39901 Update, 39988–39990 Permits: Marine mammals, 39901 Reclamation Bureau NOTICES National Park Service Closure orders: NOTICES Ridges Basin, La Plata County, CO, 39970 Concession contracts and permits: Expiring contracts; extension, 39964–39965 Environmental statements; availability, etc.: Securities and Exchange Commission Great Falls Park, VA, 39965 NOTICES Native American human remains and associated funerary Agency information collection activities; proposals, objects: submissions, and approvals, 39990–39991 American Museum of Natural History, New York, NY— Meetings; Sunshine Act, 39991–39992 Inventory from Crab Bay, Kruzof Island, Sitka Borough, Self-regulatory organizations; proposed rule changes: AK, 39965–39966 American Stock Exchange LLC, 39992–39994 Fish and Wildlife Service, Law Enforcement Office, New York Stock Exchange, Inc., et al., 39995–40009 Albuquerque, NM— Pacific Exchange, Inc., 40009–40011 Carved stone fetish belonging to Pueblo of Laguna, NM, Applications, hearings, determinations, etc.: 39966–39967 HLM Design, Inc., 39991 Corn and eagle feathers bundle, etc., belonging to Pueblo of Santo Domingo, NM, 39969–39970 Small Business Administration Five wooden figures belonging to Zuni Tribe, NM, NOTICES 39967–39968 Agency information collection activities; proposals, Wooden paddles, etc., belonging to Hopi Tribe of submissions, and approvals, 40011 Arizona, 39968 Meetings: Wooden stick with white paint, etc., belonging to National Small Business Development Center Advisory Pueblo of Acoma, NM, 39968–39969 Board, 40011
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State Department NOTICES Nonproliferation measures imposition: Separate Parts In This Issue Chinese and North Korean entities, 40011–40012
Trade Representative, Office of United States Part II NOTICES Nuclear Regulatory Commission, 40025–40074 Generalized System of Preferences: 2002 Annual Product Reviews, 2001 Special Three Part III Country Review, etc., and previously deferred Interior Department, Fish and Wildlife Service, 40075– product decisions; petitions disposition, 40012– 40101 40018 Part IV Transportation Department Defense Department; General Services Administration; See Federal Aviation Administration National Aeronautics and Space Administration, See Federal Railroad Administration 40103–40114 Treasury Department See Alcohol and Tobacco Tax and Trade Bureau Reader Aids See Internal Revenue Service RULES Consult the Reader Aids section at the end of this issue for Acquisition regulations: phone numbers, online resources, finding aids, reminders, Revision, 39854–39860 and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Veterans Affairs Department LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Agency information collection activities; proposals, archives, FEDREGTOC-L, Join or leave the list (or change submissions, and approvals, 40022–40023 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.
7 CFR 54...... 39805 Proposed Rules: 1150...... 39861 10 CFR Proposed Rules: 2...... 40026 20...... 40026 21...... 40026 50...... 40026 51...... 40026 52...... 40026 72...... 40026 73...... 40026 140...... 40026 170...... 40026 12 CFR 225...... 39807 910...... 39810 913...... 39810 Proposed Rules: Ch. 7 ...... 39863 701...... 39866 745...... 39868 14 CFR 39...... 39815 Proposed Rules: 39...... 39870 21 CFR 101...... 39831 Proposed Rules: 131...... 39873 27 CFR 9...... 39833 29 CFR 102...... 39836 Proposed Rules: 1926 (2 documents) ...... 39877, 39880 30 CFR 70...... 39881 75...... 39881 90...... 39881 33 CFR 165...... 40024 37 CFR 260...... 39837 40 CFR 51...... 39842 180...... 39846 Proposed Rules: 19...... 39882 27...... 39882 51...... 39888 43 CFR 10...... 39853 48 CFR Ch. 10 ...... 39854 Proposed Rules: 30...... 40104 52...... 40104 50 CFR 17...... 40076 Proposed Rules: 17...... 39892
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Rules and Regulations Federal Register Vol. 68, No. 128
Thursday, July 3, 2003
This section of the FEDERAL REGISTER distributing the program’s projected by the Office of Management and contains regulatory documents having general operating costs over the estimated hours Budget. applicability and legal effect, most of which of service—revenue hours—provided to Regulatory Flexibility Act are keyed to and codified in the Code of users of the service on a yearly basis. Federal Regulations, which is published under Nearly 80 percent of operating costs are Pursuant to the requirements set forth 50 titles pursuant to 44 U.S.C. 1510. derived from employee salaries and in the Regulatory Flexibility Act (5 The Code of Federal Regulations is sold by benefits. The remaining operating costs U.S.C. 601, et seq.), the Administrator of the Superintendent of Documents. Prices of include travel, training, and AMS considered the economic impact new books are listed in the first FEDERAL administrative expenses. Revenue hours of this action on small entities and REGISTER issue of each week. include commitment and determined that it will not have a noncommitment base hours, premium significant economic effect on a hours, and holiday hours. Periodically, substantial number of small entities. DEPARTMENT OF AGRICULTURE the fees must be adjusted to ensure that AMS, through its MGC Branch, the program remains financially self- provides voluntary Federal meat grading Agricultural Marketing Service supporting. and certification services to 450 Despite cost reduction efforts and businesses, including 152 livestock 7 CFR Part 54 hourly fee increases in 1998 and 2000, slaughterers, 79 facilities that process federally donated products, 74 meat [Docket Number LS–02–06] the MGC Branch incurred a $667,000 processors, 46 livestock producers and operating loss in fiscal year (FY) 2001. RIN 0581–AC13 feeders, 28 brokers, 26 organic certifying Furthermore, AMS projects that the companies, 25 trade associations, 17 MGC Branch will lose an additional Changes in Fees for Federal Meat State and Federal entities, and 3 $8.6 million through FY 2004 and Grading and Certification Services distributors. totally deplete program reserves to the Seventy-two percent (i.e., 324) of AGENCY: Agricultural Marketing Service, point of deficit operations (i.e., FY 2002, USDA. these businesses are small entities $1.6 million; FY 2003; $2.9 million; and which generate approximately 17 ACTION: Final rule. FY 2004, $4.1 million). percent of the MGC Branch’s revenues. In view of these considerations, AMS SUMMARY: A small entity is defined for the meat The Agricultural Marketing will increase hourly fees charged to Service (AMS) is revising the hourly packing and processing industry as a users of the service. The base hourly fee company that employs less than 500 fees charged for voluntary Federal meat for commitment applicants will increase grading and certification services employees. No entity, small or large, is from $45 to $55. A commitment obligated to use voluntary Federal meat performed by the Meat Grading and applicant is a user of meat grading and Certification (MGC) Branch. The hourly grading and certification services certification services who agrees to pay provided under the authority of the fees will be adjusted by this action to for five continuous 8 hour days, reflect the increased cost of providing AMA. Monday through Friday between the Voluntary Federal meat grading and service, and to ensure that the Federal hours of 6 a.m. and 6 p.m., excluding meat grading and certification program certification services facilitate the Federal legal holidays. The base hourly orderly marketing of meat and meat operates on a financially self-supporting fee for noncommitment applicants will basis. products and enable consumers to increase from $52 to $64. A obtain the quality of meat they desire. EFFECTIVE DATE: July 13, 2003. noncommitment applicant is a user of Grading services consist of the FOR FURTHER INFORMATION CONTACT: meat grading and certification services, evaluation of beef, lamb, pork, veal, and Larry R. Meadows, Chief, MGC Branch, who agrees to pay an hourly fee without calf carcasses for compliance with the telephone number (202) 720–1246 or e- committing to a certain number of grades of the appropriate official U.S. mail [email protected]. service hours. The premium hourly fee Standard. The MGC Branch grades SUPPLEMENTARY INFORMATION: will increase from $57 to $70. The approximately 22.1 billion pounds of premium hourly fee is charged to meat each year. Certification services Background applicants when meat grading and consist of the evaluation of meat and The Secretary of Agriculture is certification services: (1) Exceed 8 hours meat products for compliance with authorized by the Agricultural per day; (2) are performed before 6 a.m. specification and contractual Marketing Act of 1946 (AMA), as and after 6 p.m. Monday through requirements. Certification services are amended (7 U.S.C. 1621, et seq.), to Friday; or (3) are performed any time on regularly used by meat purchasers to provide voluntary Federal meat grading Saturday or Sunday, except on Federal ensure that the quality and yields of the and certification services to facilitate the legal holidays. The holiday fee will products they purchase comply with orderly marketing of meat and meat increase from $90 to $110 and is their stated requirements. The MGC products and to enable consumers to charged to applicants for meat grading Branch certifies approximately 18.1 obtain the quality of meat they desire. and certification services provided on billion pounds of meat and meat The AMA also provides for the Federal legal holidays. products each year. collection of fees from users of the AMS regularly reviews its user-fee- Federal meat grading and certification Executive Order 12866 financed programs to determine if the program that are approximately equal to This action has been determined to be fees are adequate. The most recent the cost of providing service. The hourly not significant for purposes of Executive review determined that the existing fee fees are established by equitably Order 12866, and has not been reviewed schedule for the MGC Branch would not
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generate sufficient revenues to recover an additional $401,000 per month in FY streamline services by consolidating operating costs for current and near- 2003. Of this $401,000, small businesses branch offices and reducing staff; term periods while maintaining an would pay an average of $68,170 or an explore alternative revenue sources; and adequate reserve balance. In FY 2001, additional $210 per month ($2,520 per focus on new technology that would the MGC Branch incurred a $657,000 year) per applicant. This fee increase decrease user costs to and improve the operating loss; in FY 2002 operating coupled with a projected increase in accuracy of the grading service. losses were $1.6 million and, without a revenue hours will increase revenues by (Note: In August 2002, the MGC Branch fee increase, FY 2003 operating losses $4.8 million per year and offset FY 2002 implemented recommended in-plant staffing are projected to reach $2.9 million. operating losses of $1.6 million and guidelines for high volume, high speed beef These combined losses will deplete projected FY 2003 losses of $2.9 grading operations. The recommended MGC Branch’s operating reserve and million. Even with this action, the unit staffing guidelines were implemented to place the MGC Branch in an unstable cost for MGC Branch service (revneue/ safeguard Federal meat graders form financial position that will adversely total pounds graded and certified) will repetitive motion injuries. affect its ability to provide the currently remain unchanged at approximately The second respondent favored a available meat grading and certification $0.0006 per pound. standardized meat grading system with services. AMS projects that, without an hourly less staff and an automated grading Since 1993, the MGC Branch has fee increase, the MGC Branch will lose system. the respondent felt that an controlled operating costs by closing an additional $8.6 million through FY automated grading system would result three field offices, reducing mid-level 2004 and totally deplete program in higher grading accuracy and would supervisory staff by over 50 percent, and reserves to the point of deficit provide more valuable information to reducing the number of support staff by operations. Any further reduction in cattle producers who make genetic 38 percent. At the same time, the MGC MGC Branch services has the potential selections based on yield and grade Branch has utilized automated to substantially harm small and limited results. information management systems for resource firms that rely on grading and The third respondent recognized the data collection, retrieval, and certification services to help distinguish benefits of the recently implemented dissemination, applicant billing, and and market their products in the global staffing guidelines, but failed to see how disbursement of employee entitlements. marketplace. the proposed fee increase was justified The reduction in field offices, and asked the MGC Branch to look for supervisory staff and support personnel Civil Justice Reform more ways to reduce costs rather then and the increased use of automated This action has been reviewed under passing them on to customers. systems has enabled the MGC Branch to Executive Order 12988, Civil Justice The comments from all respondents absorb a substantial portion of the Reform. This action is not intended to can be summarized as follows: (1) operating costs and minimize hourly fee have retroactive effect and will not pre- Justify the necessity and magnitude of increases over the past 9 years. empt any State or local laws, the fee increase; (2) consider the impact However, the MGC Branch has regulations, or policies, unless they of total MGC Branch costs on the continued to lose revenue due to the present an irreconcilable conflict. There livestock and meat industry; (3) implementation of more cost-efficient are no administrative procedures which reevaluate the accuracy of the formula audit-based and pilot certification must be exhausted prior to any judicial used to estimate the per pound cost of programs. These programs, while challenge to provision of this rule. providing services; (4) streamline providing an equal or higher level of services through MGC Branch office assurance, require fewer personnel and Paperwork Reduction Act consolidation and staff reduction; and generate fewer revenue hours when This action will not impose any (5) explore alternative revenue sources compared to traditional certification additional reporting or recordkeeping and new technology to decrease user services. Accordingly, the overall cost of requirements on users of Federal meat costs and improve the accuracy and service to the industry is reduced. grading and certification services. efficiency of meat grading and Consolidation within the livestock and certification services. The Agency Comments and Responses meat industry has also contributed to a response to each comment is as follows: decline in MGC Branch revenue because On November 1, 2002, AMS (1) Justify the necessity and there are fewer applicants and they are published a proposed rule in the magnitude of the fee increase: The AMA able to perform work more efficiently. Federal Register to increase the fees for provides for the collection of fees from Moreover, the MGC Branch operating Federal meat grading and certification users of the Federal meat grading and costs increased due to expenses services and requested comments by certification services that are associated with: (1) Ongoing January 1, 2003. The Agency received approximately equal to the cost of information system technology upgrades three comments. providing service. The hourly fees are to remain compatible with customer and The first respondent understood that established by equitably distributing the Agency systems; (2) congressionally normal inflation and rising operating program’s projected operating costs over mandated salary increases for all costs affect operating expenses. the estimated hours of service—revenue Federal Government employees in 2001, However, the respondent opposed the hours—provided to users of the service 2002, and 2003; (3) inflation of magnitude of the proposed fee increase on a yearly basis. In FY 2001, the MGC nonsalary operating expenses; and (4) and called the increase twice as large as Branch incurred a $657,000 operating accumulated increases in continental needed; indicated that the new MGC loss. Without an hourly fee increase, the United States (CONUS) per diem rates, Branch staffing guidelines coupled with MGC Branch is projected to lose an mileage rates, and office maintenance the proposed fee increase would additional $8.6 million through FY 2004 expenses. negatively impact virtually all sectors of and totally deplete program reserves. By This fee increase will raise the hourly the livestock and meat industry; and law, the program must recover the cost fees charged to users of Federal meat said the formula used to estimate the of providing grading and certification grading and certification services. After per pound cost of providing services services. Since the Agency has implementation, AMS estimates that was outdated. This respondent also implemented every reasonable measure this action will provide the MGC Branch urged the MGC Branch to further to reduce expenses, a fee increase is the
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only avenue available to ensure (4) Streamline services through MGC services provided to the industry. In revenues equal expenses on a sustaining Branch office consolidation and staff addition, the MGC Branch has worked basis. reduction: In the past 10 years, the MGC with members of the Federal purchase (2) Consider the impact total MGC Branch has closed three area offices, and further processing industry to Branch costs on the livestock and meat reduced mid-level supervisory staff by develop several pilot programs that industry: The MGC Branch issued over 50 percent, and reduced the incorporate audit based principles. recommended staffing guidelines for number of support staff by 38 percent. These programs, while providing the applicants of beef carcass grading and/ As part of the current MGC Branch same or a higher level of assurance, or live animal/carcass schedule reorganization, the Branch will close the require graders to monitor and verify an certification services on August 22, remaining four area offices, eliminate applicants’ entire production process 2002. The recommended staffing two levels of supervision, and transfer rather than performing an examination guidelines, while increasing the number area office functions to the Office of on the end product. These audit and of Federal meat graders in 4 percent of Field Operations (OFO) in Denver, audit based programs also allow greater firms requesting services, were designed Colorado, by the end of FY 2003. The scheduling flexibility, improve to reduce the number of cumulative MGC Branch reorganization also operational efficiencies, reduce costs, trauma disorders (CTD) associated with includes plans to restructure the and provide value-adding services to repetitive motions, which is the leading internal operations to more effectively applicants. The Agency believes that, to cause of injuries to MGC Branch and efficiently service specific program the maximum extent possible employees. areas. The MGC Branch will maintain technology is being utilized to improve Voluntary Federal meat grading and two offices: the OFO in Denver, the accuracy and cost-effectiveness of certification services are provided to Colorado, and the Headquarter office in meat grading and certification services. Washington, DC. The Agency has 450 businesses, including 152 livestock List of Subjects in 7 CFR Part 54 slaughterers, 79 facilities that process determined that, upon completion of the federal donated products, 74 meat current reorganization, MGC Branch’s Food grades and standards, Food processors, 46 livestock producers and operations will be streamlined to the labeling, Meat and meat products. feeders, 28 brokers, 26 organic certifying maximum extent possible. ■ For the reasons set forth in the (5) Explore alternative revenue companies, 25 trade associations, 17 preamble, 7 CFR part 54 is amended as sources and new technology to decrease State and Federal entities, and 3 follows: user costs and improve the accuracy distributors. Seventy-two percent (i.e., and efficiency of grading and 324) of these businesses are small PART 54—MEATS, PREPARED certification services: By law, the entities which generate approximately MEATS, AND MEAT PRODUCTS Agency is required to charge fees that 17 percent of the MGC Branch’s (GRADING, CERTIFICATION, AND equal the cost of providing services. revenues. A small entity is defined for STANDARDS) Accordingly, any ‘‘alternative revenue the meat packing and processing source,’’ if required as suggested by the ■ 1. The authority citation for 7 CFR part industry as a company that employs less respondent, would be conducted on a 54 continues to read as follows: than 500 employees. AMS estimates that full cost recovery basis. AMS has Authority: 7 U.S.C. 1621–1627. the fee increase will cost small actively participated with the National ■ businesses an average of $68,170 or an Cattlemen’s Beef Association (NCBA), 2. Section 54.27 is amended as follows: ■ additional $210 per month ($2,520 per the beef packing industry, instrument a. In paragraph (a), remove ‘‘$52’’ and year) per applicant. AMS is very manufacturers, and academia to develop add ‘‘$64’’ in its place, remove ‘‘$57’’ and cognitive of the impact that fees charged performance standards that can add ‘‘$70’’ in its place, remove ‘‘$90’’ and for meat grading and certification potentially improve grading accuracy add ‘‘$110’’ in its place. ■ services have over all firms. and repeatability thought the use of an b. In paragraph (b), remove ‘‘$45’’ and (3) Reevaluate the accuracy of the electronic instrument augmentation add ‘‘$55’’ in its place, remove ‘‘$57’’ and formula used to estimate the per pound system that measures the ribeyes of beef add ‘‘$70’’ in its place, remove ‘‘$90’’ and cost of providing services: In accordance carcasses. This same concept is also add ‘‘$110’’ in its place. with the AMA, meat grading and being researched for lamb grading Dated: June 27, 2003. certification services are provided on a augmentations. AMS is also involved A.J. Yates, cost recovery basis. The cost per pound with ongoing studies to develop Administrator, Agricultural Marketing is derived by dividing the total revenue technology that utilizes special Service. by the total pounds graded and certified equipment to apply environmentally [FR Doc. 03–16828 Filed 7–2–03; 8:45 am] within the same time frame. The safe yet durable carcass quality and BILLING CODE 3410–02–M formula provides an accurate and yield grade labels. Additionally, the consistent comparison between the cost Agency is working with additional of providing service and the tonnage of companies to incorporate voice FEDERAL RESERVE SYSTEM graded and certified carcasses over time. recognition software into this new grade Since 1993, the amount of product application as well as for general data 12 CFR Part 225 graded and certified per year has collection and transmission. increased by 13 billion pounds. Over Process Verified Programs such as the [Regulation Y; Docket No. R–1146] the same timeframe, the MGC Branch Non Hormone Treated Cattle Program Bank Holding Companies and Change has doubled its revenue hour efficiency and the Pork for the European Union in Bank Control and maintained the overall cost per Program provide complete traceability pound of service at $0.0006. We believe from farm to plate. Additional audit AGENCY: Board of Governors of the this method of calculating the cost per based programs such as the National Federal Reserve System. pound for providing grading and School Lunch Programs’ Canned Meats ACTION: Final rule. certification services is accurate and and Ham Programs are being provides a meaningful way to evaluate implemented to improve the overall SUMMARY: The Board of Governors of the efficiency over time. selection, quality, and cost of the Federal Reserve System is adopting an
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amendment to Regulation Y that would is permitted to own.2 For all other types organizations to engage in risky permit bank holding companies to (i) of physically settled derivatives,3 a BHC activities. The commenter also take and make delivery of title to must make reasonable efforts to avoid contended that permitting banking commodities underlying commodity delivery, and the contract must have organizations to participate in a wider derivative contracts on an assignment, termination, or offset variety of derivatives markets would instantaneous, pass-through basis; and provisions. increase the scope of potential conflicts (ii) enter into certain commodity The Bank Holding Company Act of interest for banking organizations. (‘‘BHC Act’’), as amended by the derivative contracts that do not require Final Rule cash settlement or specifically provide Gramm-Leach-Bliley Act (Pub. L. 106– for assignment, termination, or offset 102, 113 Stat. 1338 (1999)) (‘‘GLB Act’’), After carefully reviewing the public prior to delivery. permits a BHC to engage in activities comments on the proposal, the Board that the Board had determined were has determined to modify the DATES: The final rule is effective August closely related to banking, by regulation conditions that the Board imposed in 4, 2003. or order, prior to November 12, 1999. A Regulation Y on the permissible FOR FURTHER INFORMATION CONTACT: BHC must conduct these activities in derivatives activities of BHCs to permit Mark E. Van Der Weide, Counsel (202/ accordance with the terms and BHCs to enter into Commodity 452–2263), or Andrew S. Baer, Counsel conditions contained in such Contracts that are settled by the BHC (202/452–2246), Legal Division. For regulations and orders, unless modified receiving and transferring title to the users of Telecommunications Device for by the Board. underlying commodity instantaneously, the Deaf (TDD) only, contact 202/263– In response to requests by Citigroup by operation of contract, and without 4869. Inc., New York, New York taking physical possession of the SUPPLEMENTARY INFORMATION: (‘‘Citigroup’’), and UBS AG, Zurich, commodity. The final rule also modifies Switzerland (‘‘UBS’’), the Board issued the existing condition in Regulation Y Background a proposal in March 2003 that would that generally prevents BHCs from The Board’s Regulation Y currently modify the restrictions in Regulation Y engaging as principal in a physically authorizes bank holding companies to allow BHCs to enter into derivative settled Commodity Contract unless the (‘‘BHCs’’) to engage as principal in contracts that typically result in taking contract specifically provides for forward contracts, options, futures, and making delivery of title to, but not assignment, termination, or offset prior options on futures, swaps, and similar physical possession of, commodities on to delivery. The Board adopted the restrictions in contracts, whether traded on exchanges an instantaneous, pass-through basis Regulation Y on the types of Commodity or not, based on a rate, price, financial (regardless of whether the contracts Contracts that a BHC may enter into as asset, nonfinancial asset, or group of contain specific assignment, termination, or offset provisions).4 The principal to reduce the potential that assets (other than a bank-ineligible BHCs would become involved in and security) (‘‘Commodity Contracts’’). A Board received six public comments on the proposal: two from banking bear the risks of physical possession, BHC’s authority to enter into transport, storage, delivery, and sale of Commodity Contracts is subject to organizations, three from financial services trade associations, and one bank-ineligible commodities. The certain restrictions that are designed to restrictions ensure that the commodity limit the BHC’s activity to trading and from an individual. The five financial services commenters supported the derivatives business of a BHC is largely investing in financial instruments rather limited to acting as a financial than dealing directly in commodities. In proposal and offered no general or specific criticisms of the proposal. intermediary that facilitates transactions particular, Regulation Y provides that a for customers who use or produce BHC may enter into a Commodity These commenters believed that the Board’s proposal would enhance the commodities or are otherwise exposed Contract only if (i) the commodity to commodity price risk as part of their underlying the contract is eligible for ability of banking organizations to serve as financial intermediaries and satisfy regular business. investment by a state member bank; or The Regulation Y derivatives (ii) the contract requires cash customer needs and would improve liquidity and competition in a number restrictions, however, have impeded the settlement; or (iii) the contract allows ability of BHCs to participate for assignment, termination, or offset of commodity markets. The individual commenter expressed substantially in certain derivatives prior to delivery or expiration (the opposition to the proposal. The markets. Notably, in some over-the- ‘‘Contractual Offset Requirement’’), and commenter asserted that the proposal counter forward markets (U.S. energy the BHC makes every reasonable effort would reduce the stability of the markets, for example), the physically to avoid taking or making delivery of the financial system by permitting banking settled derivative contracts traded by underlying commodity (the ‘‘Delivery market participants do not specifically Avoidance Requirement’’).1 2 State member banks may own, for example, provide for assignment, termination, or The effect of these restrictions is to investment grade corporate debt securities, U.S. offset prior to delivery and, thus, do not allow a BHC to engage as principal in government and municipal securities, foreign conform to the Contractual Offset cash-settled derivative contracts exchange, and certain precious metals. Requirement of Regulation Y. Moreover, 3 These would include derivative contracts based involving any type of commodity (other on, for example, energy-related commodities and participants in these markets generally than certain derivative contracts agricultural commodities. settle contracts by temporarily taking involving bank-ineligible securities) but 4 See 68 FR 12316, March 14, 2003. Citigroup and and making delivery of title to the to limit the authority of a BHC to engage UBS also have asked the Board to allow financial underlying commodities and, thus, do in physically settled derivative holding companies to take and make physical delivery of a limited amount of commodities as an not comply with the Delivery contracts. Under these restrictions, a activity that is incidental or complementary to Avoidance Requirement of Regulation BHC may take and make delivery on engaging as principal in BHC-permissible Y. physically settled derivatives involving Commodity Contracts. The Board continues to Financial intermediary participants in commodities that a state member bank review these broader requests. Several commenters on the proposed rule expressed support for Board these markets generally enter into back- approval of these broader requests by Citigroup and to-back derivative contracts with third 1 12 CFR 225.28(b)(8)(ii)(B). UBS. parties that effectively offset each other.
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That is, financial intermediaries in these a more comprehensive range of financial of title to the commodity to a buyer. markets that enter into a contract to buy, intermediation and risk management Accordingly, the revised Delivery for example, a certain number of barrels services. In addition, the final rule Avoidance Requirement would not of oil from a certain counterparty in a should enhance the ability of BHCs to provide authority for a BHC to take certain future month generally also will compete effectively with non-BHC physical delivery of commodities for enter into another contract, prior to the participants in the commodity use or investment or to make physical expiration of the original contract, to derivatives markets (who currently are delivery of commodities out of the sell the same number of barrels of oil to able to engage in physically settled inventory of the BHC. In other words, another counterparty in the same future derivative transactions with customers). the BHC must not be the original seller month on substantially identical Moreover, by expanding the types of of the commodity in the initial position delivery terms. These market practices derivative transactions in which BHCs in the delivery chain or the ultimate typically result in the creation of a chain may engage, the final rule should buyer of the commodity in the last of contractual relationships that begins augment the capacity of BHCs to position in the delivery chain. with a commodity producer, passes understand commodity markets and to The Board’s final rule also modifies through a number of intermediaries who diversify the market, credit, and other Regulation Y by changing the have entered into matched contracts risks involved in derivatives trading. Contractual Offset Requirement to both to buy and sell the same In addition, the Board does not permit BHCs to participate in physically commodity at the same future time, and believe that the final rule will materially settled derivative markets where the ends with a purchaser that intends to increase the conflicts of interest faced standard industry documentation does take physical delivery of the by BHCs that participate in the not allow for assignment, termination, commodity. On the maturity date of the commodity derivatives markets or result or offset. In particular, the rule would derivative contracts, the producer will in any other material adverse effects. allow BHCs to enter into Commodity be responsible for making physical Although the final rule will enable Contracts that do not require cash delivery and the ultimate buyer will be derivatives affiliates of BHCs to use a settlement or specifically provide for responsible for accepting physical wider variety of transaction formats, the assignment, termination, or offset prior delivery, while each intermediate rule will not expand the types of to delivery so long as the contracts participant in the chain will be deemed, commodities that may serve as the basis involve commodities for which futures by operation of contract, to have for derivative transactions engaged in by contracts have been approved for instantaneously received and BHCs. Importantly, banking trading on a U.S. futures exchange by transferred legal title to the commodity. organizations are subject to a number of the CFTC (and the BHC complies with The Board believes that a BHC that Federal banking laws designed to the revised Delivery Avoidance takes title to a commodity on an prevent conflicts of interest, including Requirement).8 instantaneous, pass-through basis takes sections 23A and 23B of the Federal A number of commenters expressed no risk that is greater than or different Reserve Act and section 106 of the Bank specific support for this modification of in kind from the risk that the BHC has Holding Company Act Amendments of the Contractual Offset Requirement. as a holder of a commodity derivative 1970.6 Moreover, banking organizations Because derivative contracts based on contract that meets the current that engage in derivatives activities, commodities approved for exchange requirements of Regulation Y. including the commodity derivatives trading are more likely to have Instantaneous receipt and transfer of activities newly authorized by the final reasonably liquid markets than title to (but not physical possession of) rule, would remain subject to the derivatives based on non-approved commodities does not appear to involve general securities, commodities, and commodities, this modified requirement the usual activities relating to, or risks energy laws and the rules and should continue to provide some attendant on, commodity ownership. regulations of the Securities and assurance that BHCs would be able to Instead, such transactions involve the Exchange Commission, the Commodity avoid physical delivery of commodities routine operations functions of passing Futures Trading Commission (‘‘CFTC’’), underlying derivative contracts. This notices, documents, and payments— and the Federal Energy Regulatory requirement would, therefore, serve the functions that BHCs regularly perform Commission.7 same purpose as the current Contractual in their role as financial intermediaries For these reasons, the Board’s final Offset Requirement, which facilitates in other markets. Moreover, although rule modifies Regulation Y by changing the financial settlement of Commodity BHCs that receive and transfer title to the Delivery Avoidance Requirement to Contracts by requiring BHCs to have commodities on an instantaneous, pass- allow BHCs to take or make delivery of contractual rights to avoid taking or through basis face default risks, they are title to commodities underlying making delivery of the underlying not significantly different than the commodity derivative transactions on commodities.9 default risks associated with cash- an instantaneous, pass-through basis. A settled derivative contracts or derivative BHC takes and makes delivery of title to 8 The CFTC publishes annually a list of the CFTC- contracts that include the assignment, approved commodity contracts. See Commodity a commodity on an instantaneous, pass- Futures Trading Commission, FY 2001 Annual termination, or offset provisions through basis for purposes of the final Report to Congress 126. With respect to granularity, 5 currently required by Regulation Y. rule only if the BHC takes delivery of the Board intends this requirement to include all The final rule’s modifications to title to the commodity from a seller and types of a listed commodity. For example, any type Regulation Y will enable BHCs that immediately thereafter makes delivery of coal or coal derivative contract would satisfy this participate in commodity derivatives requirement, even though the CFTC list specifically approves only Central Appalachian coal. markets to provide their customers with 6 See 12 U.S.C. 371c, 371c–1, 1972. 9 One commenter asked whether the rule would 7 Although one commenter asserted that the rule authorize BHCs to engage in activities incidental to 5 Although one commenter expressed concern would result in increased conflicts of interest for engaging in the derivative transaction types newly that the rule would facilitate excessive risk taking BHCs, the Board is not aware of, and the commenter authorized by the rule, such as entering into service by BHCs, the commenter provided no evidence in has not presented, any evidence in support of this arrangements with operators of pipelines, power support of this position. For the reasons discussed position. For the reasons discussed above, the grids, and similar facilities. A BHC may engage in above, the Board does not believe that the rule will Board does not believe that the rule will materially any incidental activities that are necessary to allow expose BHCs to different types or heightened levels increase the conflicts of interest faced by BHCs that the BHC to engage in the derivative transaction of risk. trade commodity derivatives. Continued
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These modifications to the derivatives Paperwork Reduction Act (ii) Receives and instantaneously provisions in Regulation Y would be In accordance with the Paperwork transfers title to the underlying asset, by effective for all BHCs. The GLB Act Reduction Act of 1995 (44 U.S.C. 3506; operation of contract and without taking preserved the Board’s authority to 5 CFR 1320 Appendix A.1), the Board or making physical delivery of the asset; modify the terms and conditions that has reviewed the final rule under or (4) The contract does not allow for apply to any BHC activity approved by authority delegated to the Board by the 10 assignment, termination, or offset prior the Board before November 11, 1999. Office of Management and Budget. The to delivery or expiration and is based on The Board had authorized BHCs to rule contains no collections of an asset for which futures contracts or engage as principal in commodity information pursuant to the Paperwork options on futures contracts have been derivative transactions prior to Reduction Act. November 11, 1999. The final rule approved for trading on a U.S. contract would represent a relaxation of the List of Subjects in 12 CFR Part 225 market by the Commodity Futures current limitations that apply to the Administrative practice and Trading Commission, and the conduct of a derivatives activity already procedures, Banks, Banking, Federal company— approved by the Board under Regulation Reserve System, Holding companies, (i) Makes every reasonable effort to Y, and would not create a new Reporting and recordkeeping avoid taking or making delivery of the permissible activity for BHCs.11 requirements, Securities. asset underlying the contract; or (ii) Receives and instantaneously Plain Language Authority and Issuance transfers title to the underlying asset, by operation of contract and without taking ■ Section 722 of the GLB Act requires For the reasons set forth in the or making physical delivery of the asset. the Board to use ‘‘plain language’’ in all preamble, the Board amends 12 CFR part * * * * * proposed and final rules published after 225 as follows: January 1, 2000. In light of this By order of the Board of Governors of the requirement, the Board has sought to PART 225—BANK HOLDING Federal Reserve System, June 27, 2003. present the final rule in a simple and COMPANIES AND CHANGE IN BANK Jennifer J. Johnson, straightforward manner. No commenter CONTROL (REGULATION Y) Secretary of the Board. on the proposed rule asked the Board to ■ 1. The authority citation for part 225 [FR Doc. 03–16835 Filed 7–2–03; 8:45 am] take additional steps to make the rule continues to read as follows: BILLING CODE 6210–01–P easier to understand. Authority: 12 U.S.C. 1817(j)(13), 1818, Regulatory Flexibility Act 1828(o), 1831i, 1831p–1, 1843(c)(8), 1843(k), 1844(b), 1972(1), 3106, 3108, 3310, 3331– FEDERAL HOUSING FINANCE BOARD 3351, 3907, and 3909. In accordance with section 3(a) of the 12 CFR Parts 910 and 913 Regulatory Flexibility Act (5 U.S.C. ■ 2. Section 225.28 is amended by 603(a)), the Board must publish a final revising paragraph (b)(8)(ii)(B) to read as [No. 2003–08] regulatory flexibility analysis with this follows: RIN 3069–AB07 final rule. The final rule expands the scope of permissible commodity § 225.28 List of permissible nonbanking Privacy Act and Freedom of derivatives activities for a bank holding activities Information Act; Implementation company. A description of the reasons * * * * * for the Board’s decision to issue the (b) * * * AGENCY: Federal Housing Finance final rule and a statement of the (8) * * * Board. objectives of, and legal basis for, the rule (ii) * * * ACTION: Interim final rule with request are contained in the supplementary (B) Forward contracts, options, for comments. futures, options on futures, swaps, and material provided above. The final rule SUMMARY: The Federal Housing Finance applies to bank holding companies similar contracts, whether traded on exchanges or not, based on any rate, Board (Finance Board) is revising its regardless of their size and should Privacy Act regulation to reflect an enhance the ability of all bank holding price, financial asset (including gold, silver, platinum, palladium, copper, or agency reorganization. The companies, including small ones, to responsibilities of the Secretary to the compete with other providers of any other metal approved by the Board), nonfinancial asset, or group of assets, Board of Directors, including financial services in the United States administration of the Finance Board’s and to respond to changes in the other than a bank-ineligible security,12 if: Privacy Act program, have been marketplace in which banking transferred to the Office of General organizations compete. The comments (1) A state member bank is authorized to invest in the asset underlying the Counsel (OGC) and an OGC staff received by the Board on the proposed member is acting as the Finance Board’s rule did not indicate that the rule would contract; (2) The contract requires cash Privacy Act Official. The Finance Board impose burden on bank holding also is revising the rule to make it more companies of any size. settlement; (3) The contract allows for ‘‘user-friendly’’ by using plain language and where appropriate, a question-and- types newly authorized by the rule. 12 CFR assignment, termination, or offset prior to delivery or expiration, and the answer format. 225.21(a)(2). Elsewhere in this issue of the Federal 10 See 12 U.S.C. 1843(c)(8). company— Register, the Finance Board is 11 The Board notes that, subsequent to the Board’s (i) Makes every reasonable effort to publishing a notice that makes issuance of the proposed rule, the Office of the avoid taking or making delivery of the Comptroller of the Currency (‘‘OCC’’) approved a corresponding changes to the agency’s asset underlying the contract; or request by Bank of America, N.A., to engage in Privacy Act systems of records. The customer-driven electricity derivative transactions that involve the transitory transfer of title to 12 A bank-ineligible security is any security that notice also adds a new system of records electricity. See OCC Interpretive Letter No. 962 a state member bank is not permitted to underwrite covering Office of Inspector General (April 21, 2003). or deal in under 12 U.S.C. 24 and 335. investigative files.
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The Finance Board also is amending Secretary’’ and the term ‘‘Finance 913.6(d)–(e) without other substantive the fee schedule in its Freedom of Board’’ with the term ‘‘Privacy Act changes. Information Act (FOIA) regulation to Official’’ where appropriate. The D. Appeals take into account increased salary and Finance Board also is taking this operating costs. The Finance Board opportunity to make the rule more Section 913.5 prescribes the determines the amount of the fee it ‘‘user-friendly’’ by rewriting the rule in procedures individuals must follow if charges to duplicate records under the plain language and using a question- they are dissatisfied with the Privacy Privacy Act in accordance with the and-answer format where appropriate. Act Official’s response to their Privacy FOIA fee schedule. Elsewhere in this issue of the Federal Act request. It restates provisions found DATES: The interim final rule will Register, the Finance Board is currently in §§ 913.3(g) and 913.6(f)–(g) become effective on July 3, 2003. The publishing a notice that makes with no substantive changes. Finance Board will accept comments on corresponding changes to the agency’s E. Fees the interim final rule in writing on or Privacy Act systems of records. Since Section 913.6 concerns the fees the before September 2, 2003. the Privacy Act rule includes an Finance Board charges to fulfill Privacy ADDRESSES: Send comments by exemption for Office of Inspector Act requests. The fee provision electronic mail to [email protected], General (OIG) investigative files, the currently is found in § 913.7. The rule by facsimile to 202/408–2580, or by notice adds a new system of records makes clear that the Finance Board regular mail to the Federal Housing covering OIG investigative records. considers a request to be an agreement Finance Board, 1777 F Street, NW., II. Analysis of the Interim Final Rule to pay all applicable fees unless the Washington, DC 20006, Attn: Public requester expressly limits the amount he Comments. Comments will be available The interim final rule revises the or she is willing to pay. The Finance for public inspection at this address. Finance Board rule implementing the Board, which charges only for FOR FURTHER INFORMATION CONTACT: Privacy Act of 1974, as amended (5 duplication of records, determines the Janice A. Kaye, Senior Attorney- U.S.C. 552a), to reflect a reorganization amount of the fee in accordance with Advisor, Office of General Counsel, by in which responsibility and authority the fee provisions of the agency’s FOIA electronic mail at [email protected], by for running the agency’s Privacy Act rule, which is codified at 12 CFR 910.9. telephone at 202/408–2505, or by program was transferred to the OGC. The Finance Board is amending the regular mail at the Federal Housing The Finance Board also is revising the FOIA fee schedule, 12 CFR 910.9(g), to Finance Board, 1777 F Street, NW., rule to make it more ‘‘user-friendly’’ by take into account changes in salary and Washington, DC 20006. using plain language. A more detailed operating costs. More specifically, the SUPPLEMENTARY INFORMATION: description of the provisions of part hourly search charge for clerical staff 913, as revised, follows. has increased from $17.00 to $28.00, for I. Background A. Purpose and Scope supervisory/professional staff from Effective March 20, 2000, $34.00 to $53.00, and for computer responsibility for administering the Section 913.2 restates the purpose and operators from $34.00 to $48.00. The Finance Board’s FOIA program was scope of part 913, which currently are hourly charge to review records has transferred to the Office of General found in § 913.1. The rule now makes increased from $34.00 to $53.00. With Counsel and an OGC staff member clear that the Finance Board regard to duplication costs, the Finance began acting as the Finance Board’s automatically processes a Privacy Act Board has eliminated obsolete charges FOIA Officer. In order to provide a request for access to records under both for computer output and microfiche, requester with the maximum amount of the Privacy Act and the FOIA to provide decreased the cost for diskettes from information available under the law, the a requester with the maximum amount $5.00 to $.50, and added a $1.00 charge Finance Board processes some requests of information available under the law. for CD–ROMs. The Finance Board also for records under both the FOIA and the B. Privacy Act Requests is making clear that a requester’s failure Privacy Act. To minimize response time to timely pay FOIA fees assessed by this and to ensure consistent and Section 913.3 sets forth the or any other federal agency may result appropriate analysis of agency records, procedures an individual must follow in a requirement for the requester to pay the Finance Board has determined that when making a request under the future fees in advance or the responsibility and authority for both the Privacy Act. It covers requests for access administrative closing of a request. FOIA and Privacy Act programs should to records, for amendment or correction reside in one agency office. of records, and for an accounting of F. Exemptions Accordingly, the Finance Board has disclosures by the Finance Board. Section 913.7 restates current § 913.8, transferred responsibility for Section 913.3 includes provisions found which describes the records that are administering the Finance Board’s currently in §§ 913.3(a)–(c), 913.4, and exempt from disclosure under the Privacy Act program to the OGC, the 913.6(a)–(b). The provision in current Privacy Act. Finance Board records that office already responsible for running § 913.3(d) concerning disclosure of are exempt include the following: (1) the agency’s FOIA program. As part of medical records has been deleted. Certain law enforcement files and files used to determine suitability, eligibility the transfer, an OGC staff member is C. Finance Board Response to Privacy or qualifications for federal civilian acting as the Finance Board’s Privacy Act Requests Act Official. The Privacy Act Official is employment or federal contracts that are authorized to make all initial denial Section 913.4 explains how and when contained in the OIG Investigative determinations under the Finance the Finance Board will respond to a Records system of records (FHFB–7); Board’s Privacy Act regulation. Privacy Act request. The revised rule and (2) materials contained in the The Finance Board is amending its authorizes the Privacy Act Official to system of records titled ‘‘Agency Privacy Act regulation to reflect the make all initial agency determinations, Personnel Investigative Records’’ reassignment of responsibility and including adverse determinations. (FHFB–6) that would reveal the identity authority. More specifically, the Finance Section 913.4 restates provisions found of a source who furnished information Board is replacing the term ‘‘Executive currently in §§ 913.3(e)–(f), 913.5, and to the government under an express
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promise that his or her identity would For the reasons stated in the Delivery be held in confidence. Since no Finance preamble, the Finance Board amends 12 Facsimile transmission (long distance): Board office performs as its principal CFR Ch. IX as follows: long distance charges plus $.25 per function activities pertaining to the PART 910—FREEDOM OF page enforcement of criminal laws, the Facsimile transmission (local): $.25 per INFORMATION ACT REGULATION Finance Board has eliminated references call plus $.25 per page to exemptions provided under ■ Express delivery service: actual cost paragraph (j)(2) of the Privacy Act. See 1. The authority citation for part 910 continues to read as follows: ■ 3. Revise 12 CFR part 913 to read as 5 U.S.C. 552a(j)(2). follows: Authority: 5 U.S.C. 552; 52 FR 10012 (Mar. III. Notice and Public Participation 27, 1987). PART 913—PRIVACY ACT The Finance Board is promulgating ■ 2. Revise §§ 910.9(f)(2) and (4) and (g), REGULATION these technical, procedural changes as and add § 910.9(f)(6), to read as follows: an interim final rule because it is in the Sec. § 910.9 Fees. 913.1 Definitions. public interest to conform the Finance 913.2 Purpose and scope. Board’s Privacy Act regulation to an * * * * * (f) * * * 913.3 How do I make a request under the agency reorganization that already has (2) To pay fees and interest assessed Privacy Act? taken effect. Accordingly, the Finance under this section, a requester shall 913.4 How will the Finance Board respond Board for good cause finds that the to your Privacy Act request? deliver to the Office of Management, notice and publication requirements of 913.5 What can I do if I am dissatisfied with located at the Federal Housing Finance the Administrative Procedure Act are the Finance Board’s response to my Board, 1777 F Street, NW., Washington, unnecessary. See 5 U.S.C. 553(b)(3)(B). Privacy Act request? DC. 20006, a check or money order However, because this type of 913.6 Fees. made payable to the ‘‘Federal Housing 913.7 Exemptions. rulemaking generally requires notice Finance Board.’’ and receipt of public comment, the Authority: 5 U.S.C. 552a. * * * * * Finance Board will accept written § 913.1 Definitions. comments on the interim final rule on (4) The FOIA Officer may require a or before September 2, 2003. requester to pay an estimated fee in For purposes of this part: advance if: Amendment means any correction, IV. Effective Date (i) It is determined that the fee will addition to or deletion of information in likely exceed $250; a record. For the reasons stated in part III (ii) The requester previously has FOIA means the Freedom of above, the Finance Board for good cause failed to pay a fee assessed under this Information Act, as amended (5 U.S.C. finds that the interim final rule should section within 30 days of the earlier of 552). become effective on July 3, 2003. See 5 the date of the determination under Individual means a citizen of the U.S.C. 553(d)(3). § 910.4 or the date a fee statement was United States or an alien lawfully V. Regulatory Flexibility Act transmitted to a requester; or admitted to the United States for (iii) The requester previously has permanent residence. The Finance Board is adopting the failed to timely pay a fee assessed in Maintain means to keep or hold and amendments to parts 910 and 913 in the accordance with the FOIA regulation of preserve in an existing state, and form of an interim final rule and not as another federal agency. includes the terms collect, use, a proposed rule. Therefore, the * * * * * disseminate and control. provisions of the Regulatory Flexibility (6) The FOIA Officer may Privacy Act means the Privacy Act of Act do not apply. See 5 U.S.C. 601(2), administratively close a request if the 1974, as amended (5 U.S.C. 552a). Privacy Act Official means the 603(a). requester previously has failed to pay a Finance Board employee who is VI. Paperwork Reduction Act fee assessed under this section or in authorized to make determinations as accordance with the FOIA regulation of provided in this part. The mailing The interim final rule does not another federal agency unless the address for the Privacy Act Official is: contain any collections of information requester can substantiate that the debt Privacy Act Office, Federal Housing under the Paperwork Reduction Act of was paid. 1995. See 44 U.S.C. 3501 et seq. (g) Fee schedule. The Finance Board Finance Board, 1777 F Street, NW., Consequently, the Finance Board has shall assess fees in accordance with the Washington, DC 20006. Record means any item, collection or not submitted any information to the following schedule: Office of Management and Budget for grouping of information about an review. Search individual that the Finance Board maintains within a system of records List of Subjects Supervisory/Professional Staff: $53.00 per hour and contains the individual’s name or 12 CFR Part 910 Clerical Staff: $28.00 per hour the identifying number, symbol or other Computer Operator: $48.00 per hour identifying particular assigned to the Administrative practice and Review: $53.00 per hour individual, such as a finger or voice procedure, Archives and records, print or photograph. Confidential business information, Duplication System of records means a group of Federal home loan banks, Freedom of Photocopies: $.10 per page records the Finance Board maintains or information. Diskettes: $.50 per diskette controls from which information is 12 CFR Part 913 CD–ROMs: $1.00 per CD retrieved by the name of an individual Transcription of audio tape: $4.50 per or by some identifying number, symbol Administrative practice and page or other identifying particular assigned procedure, Archives and records, Certification, seal and attestation: $5.00 to the individual. You can find a Freedom of information, Privacy. per document description of the Finance Board’s
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systems of records as part of the record by appearing in person or by penalty of perjury that the foregoing is ‘‘Privacy Act Compilation’’ published writing directly to the Privacy Act true and correct. Executed on [date].’’ by the Federal Register. You can access Official. You must describe the record (2) Verification of guardianship. the ‘‘Privacy Act Compilation’’ in most that you want in enough detail to enable When making a request as the parent or large reference and university libraries the Privacy Act Office to locate the guardian of a minor or as the guardian or electronically on the World Wide system(s) of records containing it with of someone determined by a court to be Web at http://www.access.gpo.gov/ a reasonable amount of effort. Your incompetent, for access to records about su_docs/aces/PrivacyAct.shtml. You request should describe the record that individual, you must establish: also can request a copy of the Finance sought, the time period in which you (i) The identity of the individual who Board’s systems of records from the believe it was compiled, and the name is the subject of the record, by stating Privacy Act Official. or identifying number of each system of the individual’s name, current address Working days do not include records in which you believe it is kept. and date and place of birth; Saturdays, Sundays and legal public (c) Requests for amendment or (ii) Your own identity, as required in holidays. correction of records. You may make a paragraph (e)(1) of this section; request for amendment or correction of § 913.2 Purpose and scope. (iii) That you are the parent or a Finance Board record by writing to the guardian of the individual, which you (a) This Part 913 contains the rules Privacy Act Official. Your request may prove by providing a properly the Finance Board follows under the should identify each particular record in authenticated copy of the individual’s Privacy Act. The rules apply to all question and the system(s) of records in birth certificate showing your parentage records in systems of records the which the record is located, describe the or a properly authenticated court order Finance Board maintains that are amendment or correction that you want, establishing your guardianship; and retrieved by an individual’s name or and state why you believe that the (iv) That you are acting on behalf of personal identifier. They describe the record is not accurate, relevant, timely the individual in making the request. procedures by which individuals may or complete. You may submit any request access to records about documentation that you think would be § 913.4 How will the Finance Board themselves or about and on behalf of helpful. respond to your Privacy Act request? another individual as the parent or (d) Requests for an accounting of (a) When will the Finance Board guardian of a minor or as the guardian record disclosures. You may request an respond to my request? The Privacy Act of someone determined by a court to be accounting of disclosures made by the Official generally will respond to you in incompetent, request amendment or Finance Board to another person, writing within 10 working days of correction of those records, and request organization or agency of any record by receipt of a request that meets the an accounting of disclosures of those writing to the Privacy Act Official. Your requirements of § 913.3. The Privacy Act records by the Finance Board. Whenever request for an accounting should Official may extend the response time in it is appropriate to do so, the Finance identify each particular record in unusual circumstances, such as the Board automatically processes a Privacy question. An accounting generally need to consult with another agency includes the date, nature and purpose of Act request for access to records under about a record or to retrieve a record each disclosure, as well as the name and both the Privacy Act and the FOIA, shipped offsite for storage. address of the person, organization or following the rules contained in part (b) What will the Finance Board’s agency to which the disclosure was 910 of this chapter and this part 913. response include? The written response The Finance Board processes a request made. (e) Verification of identity. When will include the Privacy Act Official’s under both the Privacy Act and the determination whether to grant or deny FOIA so you will receive the maximum making a Privacy Act request, you must verify your identity in accordance with your request in whole or in part and a amount of information available to you brief explanation of the reasons for the by law. these procedures to protect your privacy or the privacy of the individual on determination. If you requested access (b) This part does not entitle you to to records, the Privacy Act Official will any service or to the disclosure of any whose behalf you are acting. If you make a Privacy Act request and you do make the records, if any, available to record to which you are not entitled you. If you requested amendment or under the Privacy Act. It also does not, not follow these identity verification procedures, the Finance Board cannot correction of a record, the response will and may not be relied upon to create describe any amendment or correction any substantive or procedural right or process your request. (1) Verifying your own identity. If you made and advise you of your right to benefit enforceable against the Finance obtain a copy of the amended or Board. make your request in person and your identity is not known to the Privacy Act corrected record, in disclosable form, § 913.3 How do I make a request under the Official, you must provide either two under this part. Privacy Act? forms of identification with (c) Adverse determinations.—(1) What (a) In general. You can make a Privacy photographs, or one form of is an adverse determination? Adverse Act request on your own behalf or on identification with a photograph and a determinations consist of the following behalf of another individual as the properly authenticated birth certificate. determinations by the Privacy Act parent or guardian of a minor or as the If you make your request by mail, your Official: guardian of someone determined by a signature either must be notarized or (i) A determination to withhold any court to be incompetent. To make sure submitted under 28 U.S.C. 1746, a law requested record in whole or in part; that the Privacy Act Office receives your that permits statements to be made (ii) A determination to deny a request request without delay, you should under penalty of perjury as a substitute to amend or correct a record in whole include the notation ‘‘Privacy Act for notarization. You may fulfill this or in part; Request’’ on the front of your envelope requirement by having your signature (iii) A determination not to provide an and also at the beginning of your on your request letter witnessed by a accounting of disclosures; request. notary, or including the following (iv) A determination that a requested (b) Requests for access to records. You statement just before the signature on record does not exist or cannot be may make a request for access to a your request letter: ‘‘I declare under located;
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(v) A determination that what has obtain a copy of the amended or benefit to which you would otherwise been requested is not a record subject to corrected record, in disclosable form, be entitled by Federal law, or for which the Privacy Act; or under this part and your right to file a you would otherwise be eligible, is (vi) A determination on any disputed Statement of Disagreement under denied as a result of the maintenance of fee matter. paragraph (e) of this section. the record, except to the extent that (2) Responses that include an adverse (e) Statements of Disagreement.—(1) disclosure of the record would reveal determination. If the Privacy Act What is a Statement of Disagreement? A the identity of a source who furnished Official makes an adverse determination Statement of Disagreement is a concise information to the government under an with respect to your request, the written written statement in which you clearly express promise that his or her identity response under this section will state identify each part of any record that you would be held in confidence. that the Privacy Act Official is the dispute and explain your reason(s) for (b) Which records are exempt?—(1) person responsible for the adverse disagreeing with the Finance Board’s Office of Inspector General Investigative determination, that the adverse denial in whole or in part of your appeal Records. Pursuant to 5 U.S.C. 552a(k)(2), determination is not a final agency to amend or correct that record. a record contained in the system of action, and that you may appeal the (2) How do I file a Statement of records titled ‘‘Office of Inspector adverse determination under § 913.5. Disagreement? You must deliver your General Investigative Records’’ (FHFB– Statement of Disagreement to the 6) is exempt from 5 U.S.C. 552a(c)(3), § 913.5 What can I do if I am dissatisfied Privacy Act Official within 30 working with the Finance Board’s response to my (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), Privacy Act request? days of the Finance Board’s denial in and (f), to the extent that the record whole or in part of your appeal (a) Appeals. You can appeal any consists of investigatory material concerning amendment or correction of adverse determination made by the compiled: a record. Privacy Act Official in responding to (i) For law enforcement purposes; or (3) What will the Finance Board do (ii) For the purpose of determining your Privacy Act request. If you wish to with my Statement of Disagreement? seek review by a court of any adverse suitability, eligibility or qualifications The Finance Board will place your for federal civilian employment or determination or denial of a request, Statement of Disagreement in the you first must appeal it under this federal contracts, if disclosure of the system(s) of records in which the record would reveal the identity of a section. disputed record is maintained. The (b) How do I make an appeal? You source who furnished information to the Finance Board also may append a may make an appeal by submitting a government under an express promise concise statement of its reason(s) for written application giving the reasons that his or her identity would be held denying the request to amend or correct why the adverse determination should in confidence. the record. The Finance Board will be overturned within 30 working days (2) Personnel Investigative Records. provide a copy of your Statement of of the date of the Privacy Act Official’s Pursuant to 5 U.S.C. 552a(k)(5), a record Disagreement and its explanation, if determination under § 913.4. You contained in the system of records titled any, along with the record whenever the should include the notation ‘‘Privacy ‘‘Personnel Investigative Records’’ record is disclosed. Act Appeal’’ on the front of your (FHFB–5) is exempt from 5 U.S.C. envelope and also at the beginning of § 913.6 Fees. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f), to the extent that your application to make sure that the (a) Your request is an agreement to disclosure would reveal the identity of Privacy Act Office receives your appeal pay fees. The Finance Board considers a source who furnished information to without delay. your Privacy Act request as your the government under an express (c) When will the Finance Board agreement to pay all applicable fees promise that his or her identity of the respond to my appeal? The Finance unless you specify a limit on the source would be held in confidence. Board generally will respond to you in amount of fees you agree to pay. The writing within 30 working days of Finance Board will not exceed the (c) Why are these records exempt?— receipt of an appeal that meets the specified limit without your written (1) Office of Inspector General requirements of paragraph (b) of this agreement. Investigative Records. The records section. The Finance Board may extend (b) How does the Finance Board contained in the system of records titled the response time in unusual calculate fees? The Finance Board will ‘‘Office of Inspector General circumstances, such as the need to charge a fee for duplication of a record Investigative Records’’ (FHFB–6) are consult with another agency about a under the Privacy Act in the same way exempt: record or to retrieve a record shipped it charges for duplication of records (i) To prevent interference with law offsite for storage. under the FOIA (12 CFR 910.9). The enforcement proceedings; (d) What will the Finance Board’s Finance Board will not charge any fees (ii) To avoid an unwarranted invasion response include? The written response to search for or review records. of personal privacy by revealing will include the Finance Board’s information about third parties such as determination whether to grant or deny § 913.7 Exemptions. other subjects of an investigation, law your appeal in whole or in part, a brief (a) What is the effect of an enforcement personnel, witnesses and explanation of the reasons for the exemption?—(1) In general. Except as other sources of information; determination, and information about provided in paragraph (a)(2) of this (iii) To fulfill commitments made to the Privacy Act provisions for court section, the Finance Board will not protect the confidentiality of sources review of the determination. If your provide you with an accounting of including Federal employees who appeal concerns a request for access to disclosures or make available to you furnish a complaint or information to records, the Finance Board will make records that are exempt under paragraph the Office of the Inspector General and the records, if any, available to you. If (b) of this section. other sources of information; your appeal concerns amendment or (2) Certain law enforcement records. (iv) To assure access by the Office of correction of a record, the response will The Finance Board will disclose a law Inspector General to sources of describe any amendment or correction enforcement record that is subject to an confidential information, including made and advise you of your right to exemption if any right, privilege or those contained in federal, state and
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local criminal law enforcement result in separation of a propeller blade documents. The FAA participated in information systems; and loss of control of the airplane. several subsequent teardowns of other (v) To prevent disclosure of law DATES: Effective July 18, 2003. propellers returned to service by T and enforcement techniques and procedures; We must receive any comments on W Propellers, Inc. We conducted these and this AD by September 2, 2003. teardowns on other Hartzell and (vii) To avoid endangering the life or ADDRESSES: Use one of the following McCauley propeller models that the physical safety of confidential sources addresses to submit comments on this public provided voluntarily. The and law enforcement personnel. AD: cumulative teardown information (2) Personnel Investigative Records. • By mail: The Federal Aviation provided enough information to The records contained in the system of Administration (FAA), New England substantiate that T and W Propellers, records titled ‘‘Personnel Investigative Region, Office of the Regional Counsel, Inc. had introduced unsafe conditions Records’’ (FHFB–5) are exempt: Attention: Rules Docket No. 2003–NE– on propellers they had returned to (i) To fulfill commitments made to 13–AD, 12 New England Executive Park, service. These inspections uncovered protect the confidentiality of sources; Burlington, MA 01803–5299. the following unsafe conditions: and • By fax: (781) 238–7055. • Extensive corrosion in the internal (ii) To assure access to sources of • By e-mail: 9-ane- bearing bore of the blade. confidential information, including [email protected]. • Absence of corrosion protection those contained in federal, state and You may examine the AD docket at (chemical conversion coating and paint) local criminal law enforcement the FAA, New England Region, Office of in the internal bearing bore area of the information systems. the Regional Counsel, 12 New England blade. Dated: June 19, 2003. Executive Park, Burlington, MA. • Cadmium plating on top of deep By the Board of Directors of the Federal FOR FURTHER INFORMATION CONTACT: corrosion pits. • Housing Finance Board. Tomaso DiPaolo, Aerospace Engineer, Poor cadmium plating and John T. Korsmo, Chicago Aircraft Certification Office, corrosion in the hub. • Extra phenolic washers that are not Chairman. FAA, Small Airplane Directorate, 2300 East Devon Avenue, Des Plaines, IL approved for use in Hartzell propellers. [FR Doc. 03–16560 Filed 7–2–03; 8:45 am] • A deteriorated O-ring that was not BILLING CODE 6725–01–P 60018–4696; telephone (847) 294–7031, fax (847) 294–7834. replaced during the overhaul. • Failure to properly shot peen SUPPLEMENTARY INFORMATION: This AD propeller parts. DEPARTMENT OF TRANSPORTATION applies to certain Hartzell Propeller, We are requiring certain actions in this Inc., McCauley Propeller Systems, AD to detect unsafe conditions that Federal Aviation Administration Sensenich Propeller Manufacturing could result in separation of a propeller Company, Inc., and Raytheon Aircraft blade and loss of control of the airplane. 14 CFR Part 39 Company (formerly Beech Aircraft Corporation) propellers returned to FAA’s Determination and Requirements [Docket No. 2003–NE–13–AD; Amendment of This AD 39–13219; AD 2003–13–17] service by T and W Propellers, Inc of Chino, CA. This AD requires The unsafe condition described RIN 2120–AA64 maintenance actions that amount to an previously is likely to exist or develop overhaul of the affected propellers. This on other propellers that T and W Airworthiness Directives; Hartzell AD is prompted by the results of an Propellers Inc., propeller repair station Propeller, Inc., McCauley Propeller NTSB investigation into the separation of Chino, CA, returned to service. We Systems, Sensenich Propeller of a propeller blade on a Beech 95 are issuing this AD to detect unsafe Manufacturing Company, Inc., and Travel Air airplane and subsequent conditions that could result in Raytheon Aircraft Company Propellers inspections of various propeller models separation of a propeller blade and loss AGENCY: Federal Aviation returned to service by T and W of control of the airplane. This AD Administration (FAA), DOT. Propellers, Inc. The NTSB metallurgical requires maintenance actions that ACTION: Final rule; request for analysis of the failed blade showed that amount to an overhaul of certain comments. the fracture was approximately 4 inches Hartzell Propeller, Inc., McCauley from the butt end of the propeller blade. Propeller Systems, Sensenich Propeller SUMMARY: The FAA is adopting a new Several corrosion pits were found in the Manufacturing Company, Inc., and airworthiness directive (AD) for certain propeller inner blade bearing bore at Raytheon Aircraft Company propellers Hartzell Propeller, Inc., McCauley and around the site of crack initiation. returned to service T and W Propellers, Propeller Systems, Sensenich Propeller While the fatigue failure appeared to Inc., and that are listed by serial number Manufacturing Company, Inc., and have corrosion pits as its initiation site, (SN) in this AD. Raytheon Aircraft Company (formerly the size of the crack was approximately Beech Aircraft Corporation) propellers 4 inches in the outer surface of the blade Recommendation for Propellers Not returned to service by T and W shank. A crack of that size is visually Identified by SN Propellers, Inc., of Chino, CA. This AD detectable. However, the time-since- This AD currently affects all requires maintenance actions amounting overhaul (TSO) of the propeller was propellers that we have identified by to an overhaul of the affected propellers. reported as being zero hours. propeller hub SN from 434 T and W This AD is prompted by the results of Documentation from T and W Propellers, Inc. shop work order a National Transportation Safety Board Propellers, Inc. propeller repair station records. The records range in date from (NTSB) investigation of a failed of Chino, CA, indicated that they had January 8, 2000 to December 30, 2002. propeller blade and subsequent complied with Hartzell service This range of dates represents a portion inspections of various propeller models documents. However, inspection of the of propellers returned to service by T returned to service by T and W propellers on the airplane involved and W Propellers, Inc. since January 22, Propellers, Inc. We are issuing this AD showed that T and W Propellers, Inc. 1997, when the FAA issued a repair to detect unsafe conditions that could had not complied with Hartzell service station certificate to T and W Propellers,
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Inc. The NTSB and the FAA have your comments. If you want us to the AD Docket. You may get a copy of conducted inspections on propellers acknowledge receipt of your mailed this summary by sending a request to us returned to service by T and W comments, send us a self-addressed, at the address listed under ADDRESSES. Propellers, Inc. as far back as December stamped postcard with the docket Include ‘‘AD Docket No. 2003–NE–13– 1997 and found unairworthy conditions number written on it; we will date- AD’’ in your request. similar to those in propellers identified stamp your postcard and mail it back to by serial number in this AD. The FAA you. We specifically invite comments List of Subjects in 14 CFR Part 39 has alerted the public of this through on the overall regulatory, economic, Air transportation, Aircraft, Aviation Unapproved Parts Notification No. environmental, and energy aspects of safety, Safety. 2003–00142 issued on March 31, 2003. the rule that might suggest a need to The FAA recommends that any modify it. If a person contacts us Adoption of the Amendment propeller not in the applicability list for verbally, and that contact relates to a this AD returned to service by T and W substantive part of this AD, we will ■ Accordingly, under the authority Propellers, Inc. comply with paragraph summarize the contact and place the delegated to me by the Administrator, (h) of this AD. summary in the docket. We will the Federal Aviation Administration consider all comments received by the amends part 39 of the Federal Aviation FAA’s Determination of the Effective closing date and may amend the AD in Regulations (14 CFR part 39) as follows: Date light of those comments. Since an unsafe condition exists that We are reviewing the writing style we PART 39—AIRWORTHINESS requires the immediate adoption of this currently use in regulatory documents. DIRECTIVES AD, we have found that notice and We are interested in your comments on ■ opportunity for public comment before whether the style of this document is 1. The authority citation for part 39 issuing this amendment is clear, and your suggestions to improve continues to read as follows: impracticable, and that good cause the clarity of our communications with Authority: 49 U.S.C. 106(g), 40113, 44701. exists for making this amendment you. You may get more information effective in less than 30 days. about plain language at http:// § 39.13 [Amended] Changes to 14 CFR Part 39—Effect on www.plainlanguage.gov. ■ 2. The FAA amends § 39.13 by adding the AD Regulatory Findings the following new airworthiness On July 10, 2002, we issued a new We have determined that this AD will directive: version of 14 CFR part 39 (67 FR 47997, not have federalism implications under 2003–13–17 Hartzell Propeller, Inc., July 22, 2002), which governs our AD Executive Order 13132. This AD will McCauley Propeller Systems, Sensenich system. This regulation now includes not have a substantial direct effect on Propeller Manufacturing Company, Inc., material that relates to special flight the States, on the relationship between and Raytheon Aircraft Company permits, alternative methods of the national Government and the States, Propellers: Amendment 39–13219. Docket No. 2003–NE–13–AD. compliance, and altered products. This or on the distribution of power and material previously was included in responsibilities among the various Effective Date each individual AD. Since this material levels of government. (a) This airworthiness directive (AD) is included in 14 CFR part 39, we will For the reasons discussed above, I becomes effective July 18, 2003. not include it in future AD actions. certify that the regulation: 1. Is not a ‘‘significant regulatory Affected ADs Comments Invited action’’ under Executive Order 12866; (b) None. This AD is a final rule that involves 2. Is not a ‘‘significant rule’’ under the Applicability: (c) This AD applies to requirements affecting flight safety and DOT Regulatory Policies and Procedures Hartzell Propeller, Inc., McCauley Propeller was not preceded by notice and an (44 FR 11034, February 26, 1979); and Systems, Sensenich Propeller Manufacturing opportunity for public comment; Company, Inc., and Raytheon Aircraft 3. Will not have a significant Company (formerly Beech Aircraft however, we invite you to submit any economic impact, positive or negative, Corporation) propellers returned to service written relevant data, views, or on a substantial number of small entities by T and W Propellers, Inc. of Chino, CA, arguments regarding this AD. Send your under the criteria of the Regulatory and that have a propeller hub serial number comments to an address listed under Flexibility Act. (SN) listed in Table 1 of this AD. Table 1 ADDRESSES. Include ‘‘AD Docket No. We prepared a summary of the costs follows: 2003–NE–13–AD’’ in the subject line of to comply with this AD and placed it in BILLING CODE 4910–13–P
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BILLING CODE 4910–13–C Propellers With Fewer Than 10 Hours Time- (xii) Reinstallation of parts intended for Unsafe Condition in-Service (TIS) Since Return to Service one-time use, and (g) Before further flight, perform the (xiii) Lack of proper shot peening. (d) This AD is prompted by the results of actions specified in paragraph (h) of this AD (4) Repair and replace with serviceable a National Transportation Safety Board on propellers listed in Table 1 of this AD, parts, as necessary, (NTSB) investigation of a failed propeller that have fewer than 10 hours time-in-service (5) Reassemble and test. blade and subsequent inspections of various (TIS) since return to service by T and W Propellers With 10 Hours or More TIS Since propeller models returned to service by T Propellers, Inc. You can find information on Return to Service and W Propellers, Inc. We are issuing this AD performing the actions in the applicable (i) Within 10 hours TIS after the effective to detect unsafe conditions that could result propeller manufacturer’s service documentation. date of this AD or one year after the effective in separation of a propeller blade and loss of date of this AD, whichever is earlier, perform control of the airplane. (h) Perform the following actions: (1) Disassemble, the actions specified in paragraph (h) of this Compliance: (e) If you have not already (2) Clean, AD on propellers listed in Table 1 of this AD, performed the actions required by this AD, (3) Inspect for the following: that have 10 hours or more TIS since return you must perform the actions within the (i) Cracks, to service by T and W Propellers, Inc. You compliance times specified in this AD. (ii) Corrosion, can find information on performing the (iii) Nicks, actions in the applicable propeller Required Actions (iv) Scratches, manufacturer’s service documentation. (f) For propellers listed in Table 1 of this (v) Blade minimum dimensions, Required Actions Before Installation AD, that have been overhauled since being (vi) Chemical conversion coat or paint or returned to service by T and W Propellers, both applied over corrosion, (j) After the effective date of this AD, do not install any propeller that has a SN listed Inc by an authorized repair station other than (vii) Lack of chemical conversion coating, (viii) Lack of paint on internal surfaces, in Table 1 of this AD returned to service by T and W Propellers, Inc., no further action is (ix) Bolts incorrectly torqued, T and W Propellers, Inc. unless you have required. (x) Incorrect parts, performed paragraph (h) of this AD on the (xi) Incorrect installation of parts, propeller.
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Alternative Methods of Compliance published an interim final rule to qualified experts that D-tagatose does (AMOCs) amend the regulation in part 101 (21 not promote dental caries (67 FR 71461 (k) You must request AMOCs as specified CFR part 101) that authorizes a health at 71462 through 71464). Consequently, in 14 CFR 39.19. All AMOCs must be claim on the relationship between sugar FDA published an interim final rule approved by the Manager, Chicago Aircraft alcohols and dental caries (§ 101.80) to amending § 101.80 to authorize a dental Certification Office, FAA. include the sugar D-tagatose, a novel caries health claim for D-tagatose. Special Flight Permits food ingredient. Under section As discussed in the interim final rule, (l) We will not issue special flight permits 403(r)(3)(B)(i) of the Federal Food, Drug, the agency believes that it would be for propellers with fewer than 10 hours TIS and Cosmetic Act (the act) (21 U.S.C. false and misleading for D-tagatose since return to service by T and W Propellers, 343(r)(3)(B)(i)), FDA issued this interim containing foods to bear a ‘‘sugar free’’ Inc. final rule in response to a petition filed claim because D-tagatose is a sugar (67 Material Incorporated by Reference under section 403(r)(4) of the act. FR 71461 at 71466). Consequently, Section 403(r)(3)(B)(i) of the act states (m) None. rather than exempting D-tagatose from that the Secretary of Health and Human the definition of ‘‘sugars’’ as requested Related Information Services (and, by delegation, FDA) shall by the petitioner, the agency instead (n) The applicable propeller issue a regulation authorizing a health exempted D-tagatose from the ‘‘sugar manufacturer’s service documents contain claim only if he or she determines, free’’ requirement of § 101.80. To instructions for performing the required based on the totality of publicly address the incongruity of a sugar- overhaul actions. available scientific evidence (including containing food bearing the dental evidence from well-designed studies Issued in Burlington, Massachusetts, on caries health claim and to inform June 26, 2003. conducted in a manner which is consumers about the uniqueness of D- consistent with generally recognized Francis A. Favara, tagatose as a noncariogenic sugar, we scientific procedures and principles), added the requirement that the claim Acting Manager, Engine and Propeller that there is significant scientific Directorate, Aircraft Certification Service. identify D-tagatose as a sugar that, agreement, among experts qualified by [FR Doc. 03–16689 Filed 7–2–03; 8:45 am] unlike other sugars, does not promote scientific training and experience to the development of dental caries. BILLING CODE 4910–13–P evaluate such claims, that the claim is Accordingly, although products supported by such evidence (see also containing D-tagatose are not permitted § 101.14(c)). Section 403(r)(4) of the act to be labeled as ‘‘sugar-free,’’ they are DEPARTMENT OF HEALTH AND sets out the procedures that FDA is to authorized to state that D-tagatose sugar HUMAN SERVICES follow upon receiving a health claim does not promote, or may reduce the petition. risk of, tooth decay. Food and Drug Administration On January 9, 2002, Arla Foods Ingredients amba, DK–8260 Viby, II. Summary of Comments and the 21 CFR Part 101 Denmark (the petitioner) filed a petition Agency’s Response [Docket No. 02P–0177] requesting that the agency: (1) Amend The agency received one comment in § 101.80 to include the sugar D-tagatose support of the petition from a Food Labeling: Health Claims; D- as one of the substances eligible to bear manufacturer prior to publication of the tagatose and Dental Caries the dental caries health claim; (2) interim final rule. Comments from seven amend § 101.9, the nutrition labeling AGENCY: Food and Drug Administration, consumers were sent to this docket regulation, to exclude D-tagatose from HHS. during the comment period, none of the definition of ‘‘sugars’’ ACTION: Final rule. which were relevant to this rulemaking. (§ 101.9(c)(6)(ii)), thereby allowing a Given the absence of contrary SUMMARY: The Food and Drug ‘‘sugar free’’ nutrient content claim; and evidence on the agency’s decisions Administration (FDA) is adopting as a (3) modify the text of § 101.80 because announced in the interim final rule, final rule, without change, the D-tagatose is not a sugar alcohol (Ref. 1). FDA is adopting as a final rule, without provisions of the interim final rule that FDA filed the petition for change, the interim final rule that amended the regulation authorizing a comprehensive review in accordance amended § 101.80 to include D-tagatose health claim on sugar alcohols and with section 403(r)(4) of the act on April as a substance eligible for the dental 19, 2002. dental caries, i.e., tooth decay, to caries health claim. FDA considered the scientific include the sugar D-tagatose as a evidence presented in the petition as substance eligible for the dental caries III. Environmental Impact part of its review of the scientific health claim. FDA is taking this action The agency has determined under 21 literature on D-tagatose and dental to complete the rulemaking initiated CFR 25.32(p) that this action is of a type caries, as well as information previously with the interim final rule. that does not individually or considered by the agency on the cumulatively have a significant effect on DATES: This rule is effective July 3, etiology of dental caries and the effects the human environment. Therefore, 2003. of slowly fermentable carbohydrates. neither an environmental assessment FOR FURTHER INFORMATION CONTACT: The agency summarized this evidence nor an environmental impact statement James E. Hoadley, Center for Food in the interim final rule (67 FR 71461 is required. Safety and Applied Nutrition (HFS– at 71463). Based on the available 830), Food and Drug Administration, evidence, FDA concluded that dental IV. Analysis of Impacts 5100 Paint Branch Pkwy., College Park, caries is a disease for which the U.S. A. Regulatory Impact Analysis MD 20740–3835, 301–436–1450. population is at risk; D-tagatose is a SUPPLEMENTARY INFORMATION: food, because it contributes taste and We have examined the economic other technical effects listed in 21 CFR implications of this final rule as I. Background 170.3(o) to food; the use of D-tagatose in required by Executive Order 12866, the In the Federal Register of December 2, food is safe and lawful; and there is Regulatory Flexibility Act (5 U.S.C. 2002 (67 FR 71461), the agency significant scientific agreement among 601–612), and the Unfunded Mandates
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Reform Act of 1995 (Public Law 104–4). V. Paperwork Reduction Act act displaces both State legislative Executive Order 12866 directs agencies FDA concludes that the labeling requirements and State common-law to assess all costs and benefits of provisions of this final rule are not duties. Medtronic v. Lohr, 518 U.S. 470, available regulatory alternatives and, subject to review by the Office of 503 (1996) (Breyer, J., concurring in part when regulation is necessary, to select Management and Budget because they and concurring in judgment); id. at 510 regulatory approaches that maximize do not constitute a ‘‘collection of (O’Connor, J., joined by Rehnquist, C. J., net benefits (including potential information’’ under the Paperwork Scalia, J., and Thomas, J., concurring in economic, environmental, public health Reduction Act of 1995 (44 U.S.C. 3501– part and dissenting in part); Cipollone v. and safety, and other advantages; 3520). Rather, the food labeling health Liggett Group, Inc., 505 U.S. 504, 521 distributive impacts; and equity). claim on the association between D- (1992) (plurality opinion); id. at 548–49 With this final rule, FDA is adopting tagatose and the nonpromotion of dental (Scalia, J., joined by Thomas, J., without change the provisions of the caries is a ‘‘public disclosure of concurring in judgment in part and interim final rule published in the information originally supplied by the dissenting in part). Although this rule Federal Register of December 2, 2002. Federal Government to the recipient for has preemptive effect in that it would The interim final rule amended the the purpose of disclosure to the public.’’ preclude States from issuing regulations regulation authorizing a health claim on (5 CFR 1320.3(c)(2)). or adopting or enforcing any the relationship between sugar alcohols requirements, including state tort-law and dental caries to include the sugar D- VI. Federalism imposed requirements, for health claims tagatose as a substance eligible for the FDA has analyzed this final rule in about D-tagatose and reduced risk of health claim. We assessed the costs and accordance with the principles set forth dental caries that are not identical to the benefits of the interim final rule in that in Executive Order 13132. FDA has requirements of the interim final rule as Federal Register document (67 FR determined that the rule has a adopted by this final rule, this 71461 at 71468 and 71469). By now preemptive effect on State law. Section preemptive effect is consistent with reaffirming that interim final rule, FDA 4(a) of the Executive order requires what Congress set forth in section 403A has not imposed any new requirements. agencies to ‘‘construe * * * a Federal of the act. There are, therefore, no additional costs Statute to preempt State law only where Section 4(e) of the Executive order and benefits associated with this final the statute contains an express provides that ‘‘when an agency proposes rule. preemption provision, there is some to act through adjudication or rulemaking to preempt State law, the B. Regulatory Flexibility Analysis other clear evidence that the Congress intended preemption of State law, or agency shall provide all affected State We have examined the economic where the exercise of State authority and local officials notice and an implications of this final rule as conflicts with the exercise of Federal opportunity for appropriate required by the Regulatory Flexibility authority under the Federal statute.’’ participation in the proceedings.’’ Act (5 U.S.C. 601–612). If a rule has a Section 403A of the act (21 U.S.C. 343– Similarly, section 6(c) of the Executive significant impact on a substantial 1) is an express preemption provision. order states that ‘‘to the extent number of small entities, the Regulatory That section provides that ‘‘no State or practicable and permitted by law, no Flexibility Act requires the agency to political subdivision of a State may agency shall promulgate any regulation analyze regulatory options that would directly or indirectly establish under that has federalism implications and minimize the economic impact of the any authority or continue in effect as to that preempts state law, unless the rule on small entities. any food in interstate commerce’’ agency, prior to the formal promulgation Because this final rule does not certain food labeling requirements, of the regulation * * * consulted with impose any new costs on firms, we unless an exemption is provided by the State and local officials early in the certify that this final rule will not have Secretary of Health and Human Services process of developing the proposed a significant impact on a substantial (and by delegation, FDA). Relevant to regulation.’’ This requirement, that FDA number of small entities. Therefore, this final rule, one such requirement provide the States with an opportunity under the Regulatory Flexibility Act, no that States and political subdivisions for appropriate participation in this further analysis is required. may not adopt is ‘‘any requirement rulemaking, has been met. FDA sought respecting any claim of the type input from all stakeholders through C. Unfunded Mandates described in section 403(r)(1) of the act publication of the interim final rule in Section 202(a) of the Unfunded made in the label or labeling of food that the Federal Register. No comments from Mandates Reform Act of 1995 (Public is not identical to the requirement of State or local government entities were Law 104–4) requires that agencies section 403(r) * * *’’ (section 403A(a)(5) received. prepare a written statement of of the act (21 U.S.C. 343–1(a)(5)). Prior In conclusion, the agency believes anticipated costs and benefits before to the effective date of this final rule and that it has complied with all of the issuing any final rule that may result in the interim rule that preceded it, this applicable requirements under the an expenditure by State, local, and tribal provision operated to preempt States Executive order and has determined that governments, in the aggregate, or by the from imposing health claim labeling the preemptive effects of this rule are private sector, of $100,000,000 in any requirements concerning D-tagatose and consistent with Executive Order 13132. one year (adjusted annually for reduced risk of dental caries because no VII. References inflation). The Unfunded Mandates such requirement had been imposed by Reform Act does not require FDA to FDA under section 403(r) of the act. The following reference has been prepare a statement of costs and benefits Under this final rule and the interim placed on display in the Division of for this rule, because the rule is not rule that preceded it, States are Dockets Management (HFA–305), Food expected to result in any 1-year preempted from imposing any health and Drug Administration, 5630 Fishers expenditure that would exceed $100 claim labeling requirements for D- Lane, rm. 1061, Rockville, MD 20852, million adjusted for inflation. The tagatose and reduced risk of dental cares and may be seen by interested persons current inflation-adjusted statutory that are not identical to those required between 9 a.m. and 4 p.m., Monday threshold is $113 million. by this rule. Section 403A(a)(5) of the through Friday.
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1. Arla Foods Ingredients amba, ‘‘Petition regulations to carry out the Act’s If you fall in this category, you must to Amend the Regulation for 21 CFR Sec. provisions. ensure that your existing products are 101.80 to Authorize a Noncariogenicity Regulations in 27 CFR part 4, Labeling eligible to use the name of the Dental Health Claim for D-tagatose,’’ CP–1, and Advertising of Wine, allow the viticultural area as an appellation of Docket No. 02P–0177, January 9, 2002. establishment of definitive viticultural origin. For a wine to be eligible, at least ■ Accordingly, the interim final rule areas. The regulations allow the name of 85 percent of the grapes in the wine amending 21 CFR 101.80 that was an approved viticultural area to be used must have been grown within the published in the Federal Register of as an appellation of origin on wine viticultural area. December 2, 2002 (67 FR 71461), is labels and in wine advertisements. Title If the wine is not eligible for the adopted as a final rule without change. 27 CFR Part 9, American Viticultural appellation, you must change the brand Dated: June 30, 2003. Areas, contains the list of approved name and obtain approval of a new Jeffrey Shuren, viticultural areas. label. Different rules apply if you label Assistant Commissioner for Policy. What Is the Definition of an American a wine in this category with a label [FR Doc. 03–16949 Filed 7–1–03; 10:06 am] Viticultural Area? approved prior to July 7, 1986. See 27 BILLING CODE 4160–01–S CFR 4.39(i) for details. Additionally, if Section 4.25a(e)(1), title 27 CFR, you use the viticultural area name on a defines an American viticultural area as wine label in a context other than a delimited grape-growing region appellation of origin, the general DEPARTMENT OF THE TREASURY distinguishable by geographical prohibitions against misleading features, the boundaries of which have representation in part 4 of the Alcohol and Tobacco Tax and Trade been delineated in subpart C of part 9. regulations apply. Bureau The establishment of viticultural areas allows the identification of regions Rulemaking Proceeding 27 CFR Part 9 where a given quality, reputation, or ATF–TTB Transition [TTB T.D.–3; Re: Notice No. 957] other characteristics of the wine is essentially attributable to its geographic Effective January 24, 2003, the Homeland Security Act of 2002 divided RIN 1512–AC70 origin. The establishment of viticultural areas is intended to help wineries to the Bureau of Alcohol, Tobacco and Seneca Lake Viticultural Area (99R– accurately describe the origin of their Firearms (ATF) into two new agencies, 260P) wines to consumers and to help the Alcohol and Tobacco Tax and Trade consumers identify the wines they Bureau (TTB) in the Department of the AGENCY: Alcohol and Tobacco Tax and purchase. Establishment of a viticultural Treasury and the Bureau of Alcohol, Trade Bureau (TTB), Treasury. area is neither an approval nor Tobacco, Firearms, and Explosives in ACTION: Treasury decision, final rule. endorsement of the wine produced the Department of Justice. The there. regulation and taxation of alcohol SUMMARY: This Treasury decision beverages remains a function of the establishes the ‘‘Seneca Lake’’ What Is Required To Establish a Department of the Treasury and is the viticultural area located in upstate New Viticultural Area? responsibility of TTB. References to the York. The Seneca Lake viticultural area Section 4.25a(e)(2) outlines the former ATF and the new TTB in this encompasses about 204,600 acres of procedure for proposing an American document reflect the time frame, before land surrounding Seneca Lake within viticultural area. Any interested person or after January 24, 2003. the established Finger Lakes viticultural may petition TTB to establish a grape- Seneca Lake Petition area. We take this action under the growing region as a viticultural area. authority of the Federal Alcohol The petition must include: ATF received a petition from Ms. Administration Act and our wine • Evidence that the proposed Beverly Stamp of Lakewood Vineyards labeling and advertising regulations. viticultural area is locally and/or in Watkins Glen, New York, proposing EFFECTIVE DATE: This final rule is nationally known by the name specified to establish the ‘‘Seneca Lake’’ effective on September 2, 2003. in the petition; viticultural area. The petitioned area FOR FURTHER INFORMATION CONTACT: • Historical or current evidence that included portions of Schuyler, Yates, Kristy Colo´n, Regulations and the boundaries of the proposed Ontario, and Seneca counties in upstate Procedures Division, Alcohol and viticultural area are as specified in the New York and covers approximately Tobacco Tax and Trade Bureau, 650 petition; 204,600 acres of primarily rural Massachusetts Avenue, NW., • Evidence that the proposed area’s agricultural and forestland. Of that total, Washington, DC 20226; (202) 927–8210. growing conditions, such as climate, 3,756 acres are planted to grapes. There are currently 33 wineries on or near SUPPLEMENTARY INFORMATION: soils, elevation, physical features, etc., distinguish it from surrounding areas; Seneca Lake, one of New York’s eleven Background on Viticultural Areas • A description of the proposed Finger Lakes. The Cayuga Lake viticultural area lies to the east of the What Is Treasury’s and TTB’s Authority viticultural area’s specific boundaries, area, and both are entirely within the To Establish a Viticultural Area? based on features found on United States Geological Survey (USGS)- established Finger Lakes viticultural The Federal Alcohol Administration approved maps; and area. Act (FAA Act) at 27 U.S.C. 205(e) • A copy of the appropriate USGS- Notice of Proposed Rulemaking requires that alcohol beverage labels approved map(s) with the boundaries provide the consumer with adequate prominently marked. ATF published a notice of proposed information regarding a product’s rulemaking regarding the Seneca Lake identity and prohibits the use of Impact on Current Wine Labels viticultural area in the October 21, 2002, deceptive information on such labels. With the establishment of this Federal Register as Notice No. 957 (67 The FAA Act also authorizes the viticultural area, bottlers who use brand FR 64575). In that notice, ATF requested Secretary of the Treasury to issue names like Seneca Lake may be affected. comments by December 21, 2002, from
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all interested persons concerning the In addition, Seneca Lake is mentioned on the vines retard bud-break until the establishment of this viticultural area. in ‘‘The Oxford Companion to the danger of frost has passed. In summer the ATF received one comment regarding Wines of North America.’’ The book lake warms up. By autumn/fall, the westerly winds are warmed as they blow across the Notice No. 957 from Representative states that Seneca Lake is surrounded by lake. The warm breezes on the vines lengthen Amo Houghton of New York’s 31st more than two-dozen wineries, is one of the growing season (balancing the late start Congressional District. Representative the two largest Finger Lakes, and is the to the growing season) by delaying the first Houghton supported the establishment deepest ‘‘with the greatest heat storing frost. of the Seneca Lake viticultural area and capacity, offering the surrounding The petitioner also provided an commented, ‘‘It is the largest, most hillsides the strongest mesoclimatic extract from Richard Figiel’s book diverse community of wine producers benefit.’’ While the lake’s first winery ‘‘Culture in a Glass,’’ that describes how in the Eastern United States. The was built in 1866, the book notes that the lake effect phenomenon affects the twenty-one wineries along the shores of the emergence of vinifera varieties Finger Lakes region. Noting that both Seneca Lake offer individual and unique resulted in an increase of winery Seneca and Cayuga Lakes drop well expressions from one of America’s finest openings in the 1980’s that brought new below sea level, Figiel states that since wine districts * * *. Carved by glaciers, momentum to the region’s grape- the lakes are ‘‘(n)arrow slices of water and surrounded by vineyards since the growing industry. with relatively little surface area, they mid 1800’s—a Seneca Lake viticultural What Boundary Evidence Was tend to maintain a stable temperature area has already been created through Provided? throughout the year.’’ Figiel notes that geologic and human history.’’ the depth and heat storing capacity of The boundaries of the Seneca Lake Additionally, Representative Houghton the lakes act as a large radiator for the viticultural area encompass about mentioned benefits to the viticultural surrounding area during the winter 204,600 acres of largely rural land area’s establishment. ‘‘This unique months. ‘‘Not only do the lakes take the surrounding Seneca Lake, the largest of area’s recognition by the ATF would edge off frigid upstate winters, often upstate New York’s eleven Finger Lakes. perfectly complement an existing keeping vineyards 10–15° warmer than While some of the road names used in regional framework of tourism, research locations just a half mile away,’’ the the boundary description do not appear and economic development, and book adds, ‘‘but they also cushion the on the submitted USGS maps, the promotion of the Seneca Lake identity transitions of spring and fall.’’ Figiel petitioner provided the locally known and all that it represents. This would be also points out that the ‘‘(d)istinct names of these roads, as well as a more of great benefit to consumers who seek microclimates along the hillsides rising detailed map of the town of Watkins products that allow them [to] capture, in from the lakeshores make it possible to Glen indicating minor roads. a bottle, the essence of places and reliably ripen grapes in a region that is regions that enthrall them.’’ Using roads and streams, the petitioner drew the Seneca Lake generally too cold for viticulture What Evidence Was Provided To Show viticultural area’s boundaries to contain ***.’’ The petitioner stated that it is the size the Name ‘‘Seneca Lake’’ Is Locally or the vineyards influenced by the lake’s and depth of Seneca Lake that gives the Nationally Known? climatic effect. In addition, the lake its ability to influence the local petitioner noted that distinct ridges According to the petitioner, Seneca climate. Additionally, a report provided divide Seneca Lake from its closest Lake was named after the Seneca people by the petitioner, entitled ‘‘Viticultural neighbor, Cayuga Lake, and the nearly of the Iroquois Nation who lived along Distinction of Seneca Lake in the New 800-foot elevation change within the 7.5 its shores hundreds of years ago. Many York Finger Lakes’’, includes a physical miles between them gives the two lakes local places and geographic features are description of Seneca Lake. The report their own microclimates. named after the Seneca people. These states that, ‘‘Seneca Lake is the largest include, for example, Seneca Lake, What Evidence Relating to Growing of the Finger Lakes covering 67.7 square Seneca County, the Seneca River, Conditions Was Provided? miles. The lake is 35.1 miles long and Seneca Castle, Seneca Army Depot, and The ‘‘lake effect’’ weather is an average of 1.9 miles wide with a Seneca Lake State Park. Additionally, phenomenon makes the Seneca Lake shoreline of 75.4 miles. It has a volume the organization known as the Seneca viticultural area a ‘‘unique and superb’’ of 4.2 trillion gallons with a maximum Lake Winery Association includes many wine-growing region, according to the depth of 634 feet. At 150 feet, the water of the area’s wineries. ° ° petitioner. The ‘‘Oxford Companion to temperature remains at 39 F (4 C) year To demonstrate that the area is locally Wine’’, published by the Oxford around. Above that level, the water and nationally known as ‘‘Seneca Lake,’’ University Press, Inc., New York, temperature varies seasonally, but the the petitioner included several describes lake effect as ‘‘the year-round surface temperature generally does not ° ° newspaper and magazine articles as influence on vineyards from nearby go below 39.5 F (4 C).’’ While Seneca evidence of the name’s use. In an article large lakes which permits vine-growing Lake chills down, the petition adds, it from the Rochester, New York Democrat in the northeast United States and rarely freezes during the winter months. and Chronicle newspaper of November Ontario in Canada despite their high The petition also noted that the Seneca 15, 1999, entitled ‘‘Your Land, Our latitude.’’ region has the longest frost-free period Land: Finger Lakes in the Fast Lane,’’ The ‘‘Oxford Companion’’ also notes in the Finger Lakes, with a growing Ray Spencer, vice president of that the lake effect influence on grape season of about 190 days. In contrast, operations of Glenora Wine Cellars, vines changes with the seasons. It states neighboring Cayuga Lake’s growing stated that many ‘‘already refer to that: season is only 165 to 170 days long. Seneca Lake as ‘the Napa Valley of the Seneca Lake’s latent heat storage East.’’’ In the February 1997 issue of In the winter, the large lakes provide capacity alters the local climate to such moisture to the prevailing westerly winds, Wines & Vines, a California based which creates a deep snow cover, protecting an extent, the petition stated, that grapes magazine, author Philip Hiaring vines from winter freeze even in very low can be grown in an area where they described his visit to the Seneca Lake temperatures. * * * In spring, the westerly otherwise would not survive the cold region and his interviews with winery winds blow across the frozen lake and temperatures of early spring, or the late owners and winemakers. become cooler. These cooler breezes blowing autumn frosts. Together with the good
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air drainage offered by the slopes List of Subjects in 27 CFR Part 9 (1) Beginning in the town of Watkins leading to its shore, the lake’s water Administrative practice and Glen at the State Route 414 bridge over temperature provides cool breezes in the procedure, Alcohol and alcoholic the New York State Barge Canal, follow spring, preventing early bud break in beverages, Consumer protection, and the Canal south approximately 0.2 miles the fruit. In the fall, the lake’s warmth Wine. to the mouth of Glen Creek, on the delays early frosts, and in the winter it Burdette, N.Y. map; raises temperatures so that bud damage Authority and Issuance (2) Follow Glen Creek upstream is lessened. ■ For the reasons discussed in the (west), crossing onto the Montour Falls, According to the petitioner, it is this preamble, title 27, Code of Federal N.Y. map and continuing to the road ability to protect a crop from extreme Regulations, Part 9, American locally known as the Van Zandt Hollow temperatures during both the growing Viticultural Areas, is amended as Road on the Beaver Dams, N.Y. map; (3) Proceed north on Van Zandt and dormant seasons that distinguishes follows; the Seneca Lake viticultural area from Hollow Road to Cross Road; the surrounding areas. This lake effect is PART 9—AMERICAN VITICULTURAL (4) Continue north on Cross Road, strongest within about one-half mile of AREAS which changes to Cretsley Road, to its Seneca Lake. For this reason, the more intersection with Mud Lake Road ■ 1. The authority citation for part 9 tender vinifera varieties are planted (County Road 23) on the Reading continues to read as follows: within this zone, while hardier Center, N.Y. map; (5) Proceed west approximately 0.7 American varieties and hybrids can be Authority: 27 U.S.C. 205. miles on County Road 23 to its planted higher on the slopes. The intersection with Pre-emption Road; petitioner added that smaller lakes, even Subpart C—Approved American (6) Then continue north on Pre- those the size of Cayuga Lake, do not Viticultural Areas emption Road along the Dundee, N.Y., have the same level of latent heat ■ 2. Subpart C is amended by adding Penn Yan, N.Y. and Dresden, N.Y. capacity and, therefore, do not modify § 9.128 to read as follows: maps, for approximately 18 miles to its the local climate to the same extent as junction with an unnamed light duty Seneca Lake. § 9.128 Seneca Lake (a) Name. The name of the viticultural road just east of Keuka Lake Outlet on Regulatory Analyses and Notices area described in this section is ‘‘Seneca the Penn Yan, N.Y. map; (7) Follow the unnamed light duty Lake’’. Is This a Significant Regulatory Action road across the Keuka Outlet, traveling as Defined by Executive Order 12866? (b) Approved Maps. The appropriate maps for determining the boundary of approximately 0.3 miles to its junction TTB has determined that this the Seneca Lake viticultural area are 13 in Seneca Mills with an unnamed light regulation is not a significant regulatory United States Geological Survey (USGS) duty road, known locally as Outlet action as defined in Executive Order topographic maps (Scale: 1:24,000). The Road; (8) Follow Outlet Road west along the 12866. Accordingly, this proposal is not maps are titled: subject to the analysis required by this (1) Burdett Quadrangle (New York— north bank of the Keuka Outlet Executive Order. Schuyler Co. 1950 (photoinspected approximately 0.6 miles, until the road 1976)); forks; How Does the Regulatory Flexibility Act (9) At the fork, continue north Apply to This Final Rule? (2) Montour Falls Quadrangle (New York 1978 (photorevised 1976)); approximately 1 mile, on an unnamed TTB certifies that the regulations will (3) Beaver Dams Quadrangle (New light duty road know locally as Stiles not have a significant economic impact York 1953); Road, to its junction with Pre-emption on a substantial number of small (4) Reading Center Quadrangle (New Road. (10) Then proceed north 14.6 miles on entities. This regulation imposes no new York 1950 (photorevised 1978)); Pre-emption Road across the Stanley, reporting, recordkeeping, or other (5) Dundee Quadrangle (New York N.Y. map, to an unnamed medium duty administrative requirement. Any benefit 1942 (photoinspected 1976)); road, known locally as County Road 4, derived from the use of a viticultural (6) Dresden Quadrangle (New York on the Phelps, N.Y. map; area name is the result of a proprietor’s 1943 (photorevised 1978)); (7) Penn Yan Quadrangle (New (11) Continue west approximately 4.5 own efforts and consumer acceptance of miles on County Road 4 to its wines from that area. Therefore, no York—Yates Co. 1942 (photoinspected 1976)); intersection with Orleans Road in regulatory flexibility analysis is Seneca Castle; required. (8) Stanley Quadrangle (New York 1952); (12) Then proceed north on Orleans Does the Paperwork Reduction Act (9) Phelps Quadrangle (New York— Road, which becomes Seneca Castle Apply to This Final Rule? Ontario Co. 1953); Road, for 2.1 miles, to Warner Corners (10) Geneva North Quadrangle (New where the name of the road changes to The Paperwork Reduction Act of York 1953 (photorevised 1976)); Wheat Road; 1995, 44 U.S.C. chapter 35, and its (11) Geneva South Quadrangle (New (13) Continue north from Warner implementing regulations, 5 CFR part York 1953 (photorevised 1978)); Corners on Wheat Road approximately 1320, do not apply to this final rule (12) Ovid Quadrangle (New York— 1.9 miles to its intersection with State because there are no new or revised Seneca Co. 1970); and Route 88; record keeping or reporting (13) Lodi Quadrangle (New York (14) Continue north on State Route 88 requirements. 1942). approximately 1.4 miles, to its Drafting Information (c) Boundaries. The Seneca Lake intersection with State Route 96 at viticultural area surrounds Seneca Lake Knickerbocker Corner; The principal author of this document in upstate New York and is located in (15) Continue east on State Route 96 is Kristy Colo´n, Regulations and portions of Schuyler, Yates, Ontario, approximately 10.4 miles, to the Procedures Division, Alcohol and and Seneca counties. The boundaries intersection with Brewer Road on the Tobacco Tax and Trade Bureau. are as follows: Geneva North, N.Y. map;
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(16) Follow Brewer Road south NATIONAL LABOR RELATIONS whose charge has been dismissed, the approximately 1.8 miles to the BOARD Office of Appeals has maintained a intersection with U.S. Route 20/State policy that reflects a liberal exercise of Route 5; 29 CFR Part 102 discretion in order to afford appeal (17) At the intersection of Brewer rights to the broadest population. Revisions of Regulations Concerning Although an appeal is more effective if Road and U.S. Route 20/State Route 5, Procedures for Filing Appeals to continue south approximately 0.1 miles, the party seeking review explains the Regional Directors’ Refusal To Issue, basis for the disagreement with the following an imaginary line to the south or Reissue, Complaint bank of the Seneca River; Region’s disposition, failure to include AGENCY: National Labor Relations such a statement has not been (18) Follow the south bank of the considered by the Office of Appeals a Seneca River east approximately 0.1 Board. ACTION: Final rule. basis for rejecting an otherwise timely miles to the mouth of the Kendig Creek; filed appeal. In Grand Rapids Gravel (19) Continue south following the SUMMARY: The General Counsel of the Company, JD–114–02 (issued November Kendig Creek approximately 3.3 miles National Labor Relations Board is 22, 2002),1 an administrative law judge to the Creek’s intersection with Yellow amending regulations concerning the specifically rejected the assumption Tavern Road on the Geneva South, N.Y. procedures for filing an appeal to the ‘‘that the filing of a notice of appeal is map; General Counsel from a Regional legally tantamount to the filing of the (20) Follow Yellow Tavern Road west Director’s dismissal of an unfair labor actual appeal.’’ Skip op. p.20. In order approximately 0.1 miles, to its practice charge. The revisions, which to avoid future challenges concerning intersection with Post Road; reflect the actual practice under existing the viability of an appeal based only on regulations, relieve persons seeking (21) Follow Post Road south a notice, the rules and regulations and review from being required to file a related forms are being revised to reflect approximately 1.4 miles to its junction complete and separate statement apart with State Route 96A; the actual practice. Because of the from the Appeal Form (Form 4767) to obvious utility of such a statement, the (22) Then follow State Route 96A perfect an appeal before the Office of General Counsel believes most charging south 17.5 miles across the Dresden, Appeals. parties will continue to submit them, N.Y., Ovid, N.Y., and Lodi, N.Y. maps DATES: Effective July 3, 2003. even if it is not mandatory. Once a case to the village of Lodi; FOR FURTHER INFORMATION CONTACT: is appealed, the same level of review is (23) In Lodi, continue south where Lester A. Heltzer, Executive Secretary, afforded despite the brevity of an State Route 96A changes to S. Main 202–273–1067. appeal. Because the current practice is Street and then changes to an unnamed SUPPLEMENTARY INFORMATION: Section fairer to individual, unrepresented medium duty road (known locally as 102.19(a) of the National Labor charging parties, the language Center Road-Country Road 137); Relations Board’s rules provides that if applicable to the procedures of filing an (24) Continue south on Center Road- a Regional Director declines to issue appeal has been revised to reflect that Country Road 137 for approximately 4.9 complaint, or after withdrawing a practice and to make the public aware miles to the Seneca/Schuyler County complaint refuses to reissue it, the of the actual practice. Line; person making the charge may obtain For these reasons, the General (25) Then proceed west 0.5 miles on review of the action by filing an appeal Counsel is eliminating the requirement the county line to Logan Road; (or seeking an extension of time in that a complete and separate statement which to file an appeal) within 14 days must be submitted in order to constitute (26) Then proceed 8.6 miles south on of being notified in writing by the an appeal from the Regional Director’s Logan Road to State Route 227 Regional Director of the reasons for the refusal to issue, or reissue, a compliant. (identified by the petitioner as State decision. Significantly, Section Route 79) on the Burdette, N.Y. map; Administrative Procedure Act 102.19(a) instructed that the appeal (27) Then proceed approximately 800 ‘‘shall’’ contain a complete statement Because the change involves rules of feet east on Route 227 to Skyline Drive; setting forth the facts and reasons upon agency organization, procedure or (28) Then proceed south on Skyline which it is based. practice, the Agency is not required to Drive for 2.5 miles to an unnamed Despite the seemingly mandatory publish for comment under Section 553 stream; language of Section 102.19(a), the Office of the Administrative Procedure Act (29) Follow the unnamed stream west of Appeals has, for many years, (5.U.S.C. 553). accepted the ‘‘Appeal’’ form (Form approximately 0.6 miles to its Regulatory Flexibility Act intersection with State Route 414; and 4767) attached to the Regional Director’s dismissal letter as an appeal and sent Because no notice of proposed rule- (30) Continue west on State Route 414 acknowledgement to the parties based approximately 0.5 miles to the making is required for procedural rules, on a timely filing of such form. The the requirements of the Regulatory beginning point on the bridge over the policy was developed in response to the New York State Barge Canal. Flexibility Act (5 U.S.C. 601 et seq.) reality that many individual appellants pertaining to regulatory flexibility Dated: May 14, 2003. to not have the language skills to perfect analysis do to apply to these rules. Arthur J. Libertucci, a more traditional appeal. Quite often, However, even if the Regulatory Administrator. individuals without benefit of counsel Flexibility Act were to apply, the NLRB have merely sent the form as indicative Approved: June 4, 2003. certifies that these changes will not have of an intent to appeal. These individuals a significant economic impact on small Timothy E. Skud, apparently believe that they have business entities since the changes Deputy Assistant Secretary (Tax, Trade, and perfected an appeal by sending in the Tariff Policy). form officially attached to the Region’s 1 Cases No. 7–CA–44094 and 7–CA–44211. The [FR Doc. 03–16703 Filed 7–2–03; 8:45 am] dismissal letter. Since seeking review is Board adopted the decision on February 27, 2003, BILLING CODE 4810–31–P the last recourse for a charging party without exceptions being filed.
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merely codify the actual practice under forth the facts and reasons upon which a copyright owner of sound recordings the existing rules. the appeal is based. If such a statement an exclusive right to perform the is timely filed, the separate ‘‘Appeal copyrighted works publicly by means of Small Business Regulatory Enforcement Form’’ need not be served. A request for a digital audio transmission. This right Fairness Act extension of time to file an appeal shall is limited by section 114(d), which Because the rule relates to Agency be in writing and be received by the allows certain non-interactive digital procedure and practice and merely office of General Counsel, and a copy of audio services to make digital modifies the agency’s existing filing such request filed with the Regional transmissions of a sound recording procedure, the General Counsel has Director, prior to the expiration of the under a compulsory license, provided determined that the Congressional filing period. Copies of the that the services pay a reasonable review provisions of the Small Business acknowledgement of the filing of an royalty fee and comply with the terms Regulatory Enforcement Fairness Act (5 appeal and of any ruling on a request for of the license. Moreover, these services U.S.C. 801) do not apply an extension of time for filing the appeal may make any necessary ephemeral Paperwork Reduction Act shall be served on all parties. reproductions to facilitate the digital Consideration of an appeal untimely transmission of the sound recording This part does not impose any filed is within the discretion of the under a second license set forth in reporting or recordkeeping requirements General Counsel upon good cause section 112(e) of the Copyright Act. under the Paperwork Reduction Act of shown. In accordance with the time frame set 1995. * * * * * forth in the law for the purpose of List of Subjects in 29 CFR Part 102 Dated: Washington, DC, June 25, 2003. setting rates and terms for use of the section 114 license by preexisting By direction of the Board. Administrative practice and services, the Copyright Office published procedure, Labor management relations. Lester A. Heltzer, a notice in the Federal Register on ■ For the reasons set forth above, the Executive Secretary. January 9, 2001. 66 FR 1700 (January 9, NLRB amends 29 CFR Part 102 as [FR Doc. 03–16549 Filed 7–2–03; 8:45 am] 2001). This notice initiated a six-month follows: BILLING CODE 7545–01–M negotiation period the purpose of which was to provide an opportunity for PART 102—RULES AND interested parties to set rates and terms REGULATIONS, SERIES 8 LIBRARY OF CONGRESS for use of the section 114 license as it ■ applied to both the preexisting 1. The authority citation for 29 CFR Copyright Office part 102 continues to read as follows: subscription services and the preexisting satellite digital audio radio Authority: Section 6, National Labor 37 CFR Part 260 services. Unfortunately, no agreement Relations Act, as amended (29 U.S.C. 151, was reached by the end of that period 156). Section 102.117(c) also issued under [Docket No. 2001–1 CARP DSTRA2] Section 552(a)(4)(A) of the Freedom of and petitions were filed requesting that Information Act, as amended (5 U.S.C. Determination of Reasonable Rates the Librarian of Congress convene a 552(a)(4)(A)). sections 102.143 through and Terms for the Digital Performance Copyright Arbitration Royalty Panel 102.155 also issued under Section 5034(c)(1) of Sound Recordings by Preexisting (‘‘CARP’’) to determine the rates and of the Equal Access to Justice Act, as Subscription Services terms for both categories of preexisting amended (5 U.S.C. 504(c)(1)). services. AGENCY: Copyright Office, Library of On January 17, 2003, the Copyright ■ 2. Section 102.19(a) is revised to read Congress. as follows: Office received notification of a ACTION: Final rule. settlement among the parties contesting § 102.19 Appeal to the general counsel rates and terms for preexisting services SUMMARY: The Copyright Office of the from refusal to issue or reissue. and a joint petition requesting the Library of Congress is announcing final (a) If, after the charge has been filed, Librarian to publish their proposed rates regulations adjusting the royalty rates the Regional Director declines to issue and terms in accordance with and terms under the Copyright Act for a complaint or, having withdrawn a § 251.63(b) of the CARP rules, 37 CFR, the statutory license for the use of sound complaint pursuant to § 102.18, refuses which provides that— recordings by preexisting subscription to reissue it, he shall so advise the services for the period January 1, 2002 [i]n the case of a settlement among the parties parties in writing, accompanied by a through December 31, 2007. to a proceeding, the Librarian may, upon the simple statement of the procedural or request of the parties, submit the agreed upon other grounds for his action. The person DATES: Effective Date: August 4, 2003. rate to the public in a notice-and-comment making the charge may obtain a review Applicability Date: The regulations proceeding. The Librarian may adopt the rate of such action by filing the ‘‘Appeal apply to the license period January 1, embodied in the proposed settlement without Form’’ with the General Counsel in 2002 through December 31, 2007. convening an arbitration panel, provided that Washington, DC, and filing a copy of the FURTHER INFORMATION CONTACT: David O. no opposing comment is received by the Carson, General Counsel, or Tanya M. Librarian from a party with an intent to ‘‘Appeal Form’’ with the Regional participate in a CARP proceeding. Director, within 14 days from the Sandros, Senior Attorney, Copyright 37 CFR 251.63(b). service of the notice of such refusal to Arbitration Royalty Panel, P.O. Box issue or reissue by the Regional 70977, Southwest Station, Washington, On January 30, 2003, the Copyright Director, except as a shorter period is DC 20024. Telephone: (202) 707–8380. Office published a Notice of Proposed provided by § 102.81. If an appeal is Telefax: (202) 252–3423. Rulemaking (‘‘NPRM’’) in the Federal taken the person doing so should notify SUPPLEMENTARY INFORMATION: Register announcing the settlement and all other parties of his action, but any proposing the rates and terms for failure to give such notice shall not Background preexisting services. 68 FR 4744 affect the validity of the appeal. The Section 106(6) of the Copyright Act, (January 30, 2003). The NPRM specified person may also file a statement setting title 17 of the United States Code, gives that—
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[a]ny party who objects to the proposed rates transmission services, see 37 CFR § 251.63(b) of the CARP rules are and terms set forth herein must file a written 260.3(a), but its ‘‘efforts to enroll clients considerable; the Librarian will not objection with the Copyright Office and an have been substantially impeded by its adopt the proposed rates and terms and accompanying Notice of Intent to Participate, inability to assure clients of RLI’s ability will schedule a CARP proceeding to if the party has not already done so. The resolve the matter. However, because a content of the written challenge should to administer all license payments to describe the party’s interest in the which these clients would be entitled.’’ challenge is lodged does not necessarily proceeding, the proposed rule the party finds Id. at 3. Consequently, RLI objects to the mean that a CARP must be convened. objectionable, and the reasons for the NPRM so that further proceedings may The Librarian must evaluate the challenge. be held to include it as a Designated sufficiency of the objection to determine 68 FR at 4745. Objections to the proposed Agent in the Copyright Office rules for whether the objecting party (1) has a rates and terms were due by March 3, 2003. distribution of royalties collected from significant interest in the establishment On March 3, the Office received an objection preexisting subscription services. of the rates and terms and (2) has from Royalty Logic, Inc. (‘‘RLI’’). Having offered the reason for its asserted objections to the proposed rates Resolution of the Objection to the objection, RLI asserts that it has an and terms that can be resolved in a NPRM interest in this proceeding because it is CARP proceeding. an entity that distributes royalties, is The first requirement, that an 1. RLI’s Objection already a Designated Agent for royalties objecting party have a significant RLI’s March 3, 2003, objection and collected from nonsubscription interest in the rates and terms to be established, is derived from the Notice of Intent to Participate represents transmission services, and ‘‘has a stake’’ language of the Copyright Act. Section RLI’s second attempt to enter this in this proceeding. Id. at 5. RLI also 803(a)(1) of the Act provides that rate proceeding. On January 17, 2003, on the offers that having multiple Designated proceedings for certain statutory same day that the Copyright Office Agents identified in the regulations is licenses in the Act-particularly sections received notification of the settlement of beneficial and desirable for copyright 112 and 114 which are at issue in this rates and terms for preexisting services owners and performers and will offer proceeding-begin with the submission and 14 months after the Office called for them an alternative to SoundExchange, of a petition to the Librarian of Notices of Intent to Participate in this the only Designated Agent in the NPRM. Congress. In other words, one or more proceeding, RLI filed a motion to accept Id. at 7–9. On March 26, 2003, RLI filed a parties may request the Librarian to a late-filed Notice of Intent to invoke the CARP process to establish Participate. In an Order issued March supplement to its March 3, 2003, objection to the NPRM. RLI stated that— rates and terms by filing a petition or 14, 2003, the Office denied RLI’s petitions. For each petition received, the motion. The Office applied its two-part statute requires that the ‘‘Librarian of test for considering late-filed Notices of [t]he reason for this Supplement is to inform Congress shall, upon the the Copyright Office that RLI has signed Intent to Participate—the disruption to recommendation of the Register of the proceeding by accepting the Notice affiliate agreements with copyright owners and performers who wish RLI to serve as Copyrights, make a determination as to and whether good cause is shown for it whether the petitioner has such a being late—and determined that RLI their Designated Agent for all Section 112 and 114 statutory licenses, and therefore significant interest in the royalty rate in failed both prongs of the test. Order in object to the proposed settlement insofar as which an adjustment is requested.’’ 17 Docket No. 2001–1 CARP DSTRA2 it would fail to designate RLI for the U.S.C. 803(a)(1). Although there is no (March 14, 2003). We now consider collection and distribution of statutory legislative history as to what constitutes whether there are sufficient grounds to license royalties for the pre-existing a ‘‘significant interest,’’ the requirement accept RLI’s March 3 objection and its subscription services. of such makes a great deal of sense. Rate new Notice of Intent to Participate. RLI Supplement at 1. RLI went on to proceedings before a CARP are lengthy, As discussed above, the NPRM state that it had ‘‘signed affiliation complex, and expensive. It would make required parties filing an objection to agreements, effective January 1, 2003, no sense to allow an entity with a state their interest in the proceeding and with numerous copyright owners and tentative or collateral interest in the the reasons for their challenge. In its performers,’’ although it declined to rates to invoke a CARP proceeding; in March 3 filing, RLI asserts that it is a for- identify any of these owners and order to initiate the proceeding, a party profit corporation that administers performers by name. Id. at 2. RLI should at a minimum have a significant music licensing royalties on behalf of concluded that if the NPRM were interest in the rates and terms to be hundreds of radio and television adopted, the copyright owners and established. stations and that one of its key business performers that it now represents would While section 803(a)(1) addresses objectives ‘‘is to provide these same be denied from collecting their petitions to initiate rate proceedings, types of agency services to recording preexisting subscription service there is no similar provision in the labels and performing artists with royalties through RLI and would be Copyright Act related to challenges of respect to the administration and forced to deal solely with proposed rates and terms that are the distribution of royalty payments to be SoundExchange, the only Designated result of settlement reached by made to them pursuant to the statutory Agent in the NPRM. participants in a CARP proceeding. The licenses under sections 112(e) and 114 The Recording Industry Association Copyright Office developed § 251.63(b) of the Copyright Act.’’ RLI Objection at of America, Inc., and, jointly, the of the CARP rules to address 2. In order to enter this business, RLI American Federation of Musicians of circumstances where, due to a states that it is necessary for it to be the United States and Canada and the settlement, a CARP is no longer recognized in the rules proposed in the American Federation of Television and necessary. Although § 251.63(b) is a rule NPRM as a Designated Agent to receive Radio Artists opposed RLI’s March 26 and not a statutory provision, it has the royalties from preexisting services, supplement. specific endorsement of the Congress. which it currently is not. RLI notes that 2. RLI’s Interest in This Proceeding If an agreement as to rates and terms is it is a recognized Designated Agent for reached and there is no controversy as to another statutory license in section 114 The consequences of an objection to these matters, it would make no sense to of the Copyright Act for nonsubscription a proposal of rates published under subject the interested parties to the needless
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expense of an arbitration proceeding specific interest in a rate proceeding, owners have authorized RLI to represent conducted under (section 114(f)(2) (1995)). but only gains that specific interest from them in a CARP proceeding or even to Thus, it is the Committee’s intention that in the authorization of the users it object to the proposed rates and terms such a case, as under the Copyright Office’s represents. A person or entity that is not on their behalf. RLI states its belief that current regulations concerning rate adjustment proceedings, the Librarian of a user of a statutory license but ‘‘[b]y affiliating with RLI and electing to Congress should notify the public of the expresses a vague or unspecified desire receive their royalties from an agent proposed agreement in a notice-and- to form a business that would make use other than SoundExchange, RLI’s client comment proceeding and, if no opposing of the license or that would benefit performers and copyright owners are comment is received from a party with a indirectly from another’s use does not expressing their opposition, through substantial interest and intent to participate have a specific interest. Order in Docket RLI, to the proposed settlement.’’ in an arbitration proceeding, the Librarian of No. 99–6 CARP DTRA at 2 (June 21, Supplement at 3 (emphasis added). But Congress should adopt the rates embodied in 2000) (‘‘Glaser’s interest in what the fees it is hardly self-evident that the act of the agreement without convening an arbitration panel. will be is general in that it may affect affiliating with RLI and electing to use the profitability of his other businesses, RLI as their agent to receive royalties S. Rep. No. 104–128, at 29 (1995) but it is not specific to his person or to constituted an authorization by those (citations omitted) (emphasis added). his role as a representative of these unidentified copyright owners for RLI to Plainly, for the same reasons that the other businesses.’’). And a person or express opposition on their behalf to the Librarian must determine whether a entity that proposes or objects to a rate proposed rates and terms or to petitioner for a rate proceeding has a proceeding solely on the basis of participate in a CARP on their behalf. significant interest in the rates and espoused public policy or consumer Indeed, RLI has failed even to identify terms, Congress recognized that a party interest concerns does not have a a single copyright owner whom it challenging proposed rates and terms specific interest. represents in asserting its objection to that are the product of a settlement must The NPRM in this proceeding the proposed rates and terms. If RLI likewise have a significant, or specified that parties objecting to the wishes to participate in a CARP as a substantial, interest. Consequently, proposed rates and terms identify their representative of copyright owners, it when the Office published the NPRM in interest in the proceeding no later than must identify the copyright owners this proceeding, it required any party March 3, 2003. Review of RLI’s March whom it represents. filing objections to identify its specific 3, 2003, filing reveals that RLI did not RLI also argues that copyright owners interest in the rates and terms to be represent any copyright owners entitled and performers should be given a adjusted to enable the Librarian to to collect royalties from preexisting ‘‘competitive choice among agents for determine whether it has a significant subscription services under the section the distribution of sound recording (substantial) interest. See 68 FR at 4745 112 and 114 licenses. Rather, it states performance royalties,’’ Objection at 7, (‘‘[U]nless there is an objection from a that its ‘‘key business objective’’ is to and that in amending 17 U.S.C. 114(g) person with a significant interest in the distribute such royalties in the future in the Small Webcaster Settlement Act proceeding who is prepared and eligible and that its participation in this of 2002, Pub. L. 107–321, Congress (1) to participate in a CARP proceeding, proceeding is necessary to attaining that ‘‘acknowledged and contemplated that * * * the Librarian can adopt the rates objective. RLI Objection at 2. This is more than one entity could serve as a and terms in the proposed settlement in confirmed in the March 26, 2003, Designated Agent in competition with final regulations without convening a ‘‘supplement’’ to its objection where RLI SoundExchange,’’ and (2) provided that CARP’’). states that it is ‘‘pleased to inform the ‘‘performers and copyright owners have The question then remains: what is a Copyright Office’’ that it had entered the absolute right to choose a significant or substantial interest in a into affiliation agreements with Designated Agent other than rate proceeding? The inquiry is a factual unspecified copyright owners and SoundExchange so as to avoid the one and determinations must be made performers whose works it purports are recoupment of historical litigation and on a case-by-case basis. Clearly, a used under the section 112 and 114 other costs.’’ Id. at 8 (footnote omitted). copyright owner whose works are being licenses. RLI Supplement at 2.1 Since These arguments do not compel the used under a statutory license has a RLI did not represent copyright owners conclusion that RLI has standing to significant interest in a rate setting or entitled to royalties from preexisting block a settlement and force the adjustment of that license, as does the subscription services under the section determination of rates and terms to be person or entity using those works 112 and 114 licenses at the time that it made by a CARP. The fact that more under the statutory license. Order in filed its objection, and did not have than one entity could serve as Docket No. 99–6 CARP DTRA (June 21, authorization from any copyright Designated Agents does not mean that 2000). An entity that collects the owners eligible to receive such royalties there necessarily ought to be more than royalties generated under a statutory 2 to lodge the objection and participate in one Designated Agent, or that an license on behalf of certain copyright a CARP proceeding on their behalf, RLI aspiring candidate for designation has owners whose works are used can have does not have a specific interest in this sufficient interest to participate in its a specific interest in a rate proceeding, rate adjustment proceeding. own right in a CARP proceeding. The but only to the extent that such entity Moreover, even if the information in fact that Congress has recognized that is fully authorized by, and acts on the RLI’s March 26 ‘‘supplement’’ were behalf of, those copyright owners to accurate as of March 3, RLI does not 2 Indeed, we have expressed skepticism about the represent their interests in the rate even purport to assert that any copyright benefit of the two-tier structure involving a proceeding. It is through the Receiving Agent and more than one Designated Agent, which adds expense and administrative authorization of these copyright owners, 1 RLI also faxed replies on April 11 and April 24, burdens to a process the purpose of which is to however, and not because of its business 2003, to the objections lodged against its March 26 make prompt, efficient, and fair payments of or personal interest, that a royalty Supplement. Permission was not sought to submit royalties to copyright owners and performers with collection entity gains a specific interest these replies and they are therefore not considered. a minimum of expense. See Determination of Moreover, unless otherwise directed by the Reasonable Rates and Terms for the Digital in a rate proceeding. Librarian, the rules do not provide for the Performance of Sound Recordings and Ephemeral Likewise, an entity that represents submission of any pleading by facsimile Recordings; Final Rule, 67 FR 45239, 45267 n.46 users of copyrighted works can have a transmission. 37 CFR 251.44(a). (July 8, 2003).
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there have been and may continue to be 3. Determination without limit to the number of more than one Designated Agent also For the reasons stated above, the ephemeral phonorecords made. does not mean that this is a necessary Librarian of Congress determines that (d) For purposes of this part, Licensee or even a desirable outcome. On the RLI does not have a specific interest in means any preexisting subscription other hand, it could be that when the rates and terms proposed in this service as defined in 17 U.S.C. Congress, in the Small Webcaster NPRM and consequently does not have 114(j)(11). Settlement Act, amended the law to standing to require the convocation of a ■ 4. Section 260.2 is amended as follows: permit SoundExchange to deduct costs CARP. RLI’s objection is therefore ■ a. By revising the section heading; ■ incurred in licensing rights under dismissed. Since there were no other b. By revising paragraphs (a) and (b); ■ section 114 or to deduct costs incurred objections filed, the Librarian is c. By redesignating paragraph (c) as as a participant in a CARP proceeding adopting the proposed rates and terms paragraph (e), and adding a new from the royalties that it distributes to paragraph (c); announced in the NPRM as final. ■ copyright owners and performers,3 it The following rates and terms for the d. By adding a new paragraph (d); ■ e. In redesignated paragraph (e)(1)(ii) also included the provision denying use of sound recordings by preexisting by adding ‘‘a’’ before ‘‘recognized SoundExchange that right with respect subscription services under the section advertising agency’; 112(e) and section 114 licenses of the to ‘‘copyright owners and performers ■ f. In redesignated paragraphs (e)(1)(iii) Copyright Act shall be effective for the who have elected to receive royalties and (vi), by removing ‘‘Programming period January 1, 2002 through from another designated agent,’’ 17 Service’’ and adding ‘‘programming December 31, 2007. U.S.C. 114(g)(3), in order to give service’’ in its place; copyright owners and performers a List of Subjects in 37 CFR Part 260 ■ g. In redesignated paragraphs means to avoid being subject to (e)(1)(viii) and (e)(2), by removing ‘‘(c)’’ recoupment of SoundExchange’s Copyright, Digital Audio Transmissions, Performance Right, and adding ‘‘(e)’’ in its place; and litigation and other costs. Such a ■ Sound Recordings. h. By adding a new paragraph (f). provision may have been intended to The additions and revisions to § 260.2 deter SoundExchange from making Final Regulation read as follows: excessive deductions, in light of the fact ■ that copyright owners and performers In consideration of the foregoing, the § 260.2 Royalty fees for the digital Copyright Office amends part 260 of 37 performance of sound recordings and the could elect to receive their royalties CFR as follows: making of ephemeral phonorecords by from an alternative Designated Agent if preexisting subscription services. they were dissatisfied with the extent of PART 260–RATES AND TERMS FOR (a) Commencing January 1, 2002 and SoundExchange’s deductions. But even PREEXISTING SUBSCRIPTION continuing through December 31, 2003, if that is so, it would not give RLI SERVICES’ DIGITAL TRANSMISSIONS a Licensee’s monthly royalty fee for the standing to participate on its own behalf OF SOUND RECORDINGS AND public performance of sound recordings in a CARP in order to seek designation MAKING OF EPHEMERAL pursuant to 17 U.S.C. 114(d)(2) and the as an agent. Instead, it would give a PHONORECORDS making of any number of ephemeral copyright owner or performer entitled to phonorecords to facilitate such ■ 1. The authority citation for part 260 participate in the CARP the power to performances pursuant to 17 U.S.C. continues to read as follows: seek the designation of RLI or some 112(e) shall be 7.0% of such Licensee’s other entity as an alternative Designated Authority: 17 U.S.C. 114, 801(b)(1) monthly gross revenues resulting from Agent.4 ■ 2. The heading of Part 260 is revised residential services in the United States. to read as set forth above. (b) Commencing January 1, 2004 and 3 SoundExchange had sought the power to make ■ 3. Section 260.1 is revised to read as continuing through December 31, 2007, such deductions in the previous CARP proceeding follows: a Licensee’s monthly royalty fee for the setting rates and terms for eligible nonsubscription public performance of sound recordings services, but the Librarian, on the recommendation § 260.1 General of the Register, rejected the CARP’s terms that pursuant to 17 U.S.C. 114(d)(2) and the would have permitted such deductions. See (a) This part 260 establishes rates and making of any number of ephemeral Determination of Reasonable Rates and Terms for terms of royalty payments for the public phonorecords to facilitate such the Digital Performance of Sound Recordings and performance of sound recordings by performances pursuant to 17 U.S.C. Ephemeral Recordings; Final Rule, 67 FR 45239, 45269 (July 8, 2003)(noting that ‘‘[s]uch activity is nonexempt preexisting subscription 112(e) shall be 7.25% of such Licensee’s beyond the scope of collection and distribution of services in accordance with the monthly gross revenues resulting from royalties.’’). provisions of 17 U.S.C. 114(d)(2), and residential services in the United States. 4 In fact, it is not clear that RLI needs to the making of ephemeral phonorecords (c) Commencing in the year 2003 and participate in a CARP proceeding or be named in a negotiated settlement in order to act as a in connection with the public continuing through the year 2007, each designated agent for purposes of collecting royalty performance of sound recordings by Licensee making digital performances of fees on behalf of copyright owners and performers nonexempt preexisting subscription sound recordings pursuant to 17 U.S.C. who are entitled to receive funds collected pursuant services in accordance with the 114(d)(2) and ephemeral phonorecords to the section 112 and section 114 licenses. Section 112(e)(2) and section 114(e) of the Copyright Act provisions of 17 U.S.C. 112(e). pursuant to 17 U.S.C. 112(e) shall make both expressly provide that a copyright owner of a (b) Upon compliance with 17 U.S.C. an advance payment of $100,000 per sound recording may designate common agents to 114 and the terms and rates of this part, year, payable no later than January 20th negotiate, agree to, pay, or receive royalty nonexempt preexisting subscription of each year; Provided, however, that for payments. Under these provisions, it is plausible that a copyright owner or performer could designate services may engage in the activities set 2003, the annual advance payment shall any agent of his or her choosing (including RLI)— forth in 17 U.S.C. 114(d)(2). be due on August 20, 2003. The annual whether or not that agent had been formally (c) Upon compliance with 17 U.S.C. advance payment shall be designated in the CARP proceeding-to receive 112(e) and the terms and rates of this nonrefundable, but the royalties due royalties from the licensing of digital transmissions and, by doing so, limit the costs of such agents to part, nonexempt preexisting and payable for a given year or any those specified in section 114(g)(4), as amended by subscription services may engage in the month therein under paragraphs (a) and the Small Webcaster Settlement Act of 2002. activities set forth in 17 U.S.C. 112(e) (b) of this section shall be recoupable
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against the annual advance payment for America, Inc., or SoundExchange by § 260.6 Confidential information and such year; Provided, however, that any September 15, 2003. statements of account. unused annual advance payment for a ■ 6. Section 260.4 is amended as follows: (a) General. This section prescribes given year shall not carry over into a ■ a. In paragraphs (a) and (b), by general rules pertaining to the subsequent year. removing ‘‘nonexempt subscription verification of the payment of royalty (d) A Licensee shall pay a late fee of digital transmission service’’ in each fees to those parties entitled to receive 1.5% per month, or the highest lawful place it appears and adding ‘‘nonexempt such fees, according to terms rate, whichever is lower, for any preexisting subscription service’’ in its promulgated by a duly appointed payment received after the due date. place; and copyright arbitration royalty panel, Late fees shall accrue from the due date ■ b. By revising paragraphs (d)(1) and (e). until payment is received. under its authority to set reasonable The revisions to § 260.4 read as terms and rates pursuant to 17 U.S.C. * * * * * follows: 114 and 801(b)(1), and the Librarian of (f) During any given payment period, Congress under his authority pursuant the value of each performance of each § 260.4 Confidential information and digital sound recording shall be the statements of account. to 17 U.S.C. 802(f). same. * * * * * (b) Frequency of verification. ■ 5. Section 260.3 is amended as follows: (d)(1) Those employees, agents, Interested parties may conduct a single ■ a. In paragraph (b), by removing consultants and independent audit of the entity making the royalty ‘‘twentieth’’ and adding ‘‘forty-fifth’’ in contractors of the designated agent, payment during any given calendar its place; subject to an appropriate confidentiality year. agreement, who are engaged in the ■ b. By revising paragraphs (c), (d) and (c) Notice of intent to audit. Interested collection and distribution of royalty (e); and parties must submit a notice of intent to ■ c. By adding a new paragraph (f). payments hereunder and activities directly related hereto, who are not also audit the entity making the royalty The additions and revisions to § 260.3 payment with the Copyright Office, read as follows: employees or officers of a sound recording copyright owner or which shall publish in the Federal § 260.3 Terms for making payments of performing artist, and who, for the Register a notice announcing the receipt royalty fees. purpose of performing such duties of the notice of intent to audit within 30 * * * * * during the ordinary course of days of the filing of the interested (c) The agent designated to receive the employment, require access to the parties’ notice. Such notification of royalty payments and the statements of records; and interest shall also be served at the same account shall have the responsibility of * * * * * time on the party to be audited. making further distribution of these fees (e) The designated agent or any * * * * * to those parties entitled to receive such person identified in paragraph (d) of payment according to the provisions set this section shall implement procedures § 260.7 [Amended] forth at 17 U.S.C. 114(g). to safeguard all confidential financial ■ 9. Section 260.7 (amended at 68 FR (d) The designated agent may deduct and business information, including, 36470, June 18, 2003, to become effective from any of its receipts paid by but not limited to royalty payments, July 18, 2003) is amended as follows: Licensees under § 260.2, prior to the submitted as part of the statements of distribution of such receipts to any account, using a reasonable standard of (a) By adding ‘‘collecting’’ before person or entity entitled thereto, the care, but no less than the same degree ‘‘agent’’ the first time it appears; reasonable costs permitted to be of security used to protect confidential (b) By removing ‘‘designated’’ the deducted under 17 U.S.C. 114(g)(3); financial and business information or second and third time it appears and Provided, however, that the parties similarly sensitive information adding ‘‘collecting’’ in its place; and entitled to receive royalty payments belonging to the designated agent or (c) By removing ‘‘the cost of the according to the provisions set forth at such person. administration of the collection and 17 U.S.C. 114(g)(1) & (2) who have * * * * * authorized a designated agent may agree distribution of the royalty fees’’ and to deduct such other costs agreed to by § 260.5 [Amended] adding ‘‘any costs deductible under 17 such other parties and the designated U.S.C. 114(g)(3)’’ in its place. ■ 7. Section 260.5(b) is amended by agent. removing ‘‘nonexempt subscription Dated: June 16, 2003. (e) Until such time as a new digital transmission service’’ and adding Marybeth Peters, designation is made, SoundExchange, ‘‘nonexempt preexisting subscription which initially is an unincorporated Register of Copyrights. service’’ in its place. division of the Recording Industry James H. Billington, Association of America, Inc., shall be ■ 8. Section 260.6 (revised at 68 FR The Librarian of Congress. the agent receiving royalty payments 36470, June 18, 2003, to become effective [FR Doc. 03–16727 Filed 7–2–03; 8:45 am] July 18, 2003) is amended as follows: and statements of account and shall BILLING CODE 1410–33–P continue to be designated if it should be ■ a. By revising paragraphs (a), (b) and separately incorporated. (c); (f) A Licensee shall make any ■ b. In paragraph (f), by removing payments due under § 260.2(a) for ‘‘designated agent’’ and adding ‘‘entity digital transmissions or ephemeral which made the underpayment’’ in its phonorecords made between January 1, place; and 2002, and July 31, 2003, to the ■ c. In paragraph (g), by removing Designated Agent, less any amounts ‘‘individuals or entities’’. previously paid by such period to the The revisions to § 260.6 read as Recording Industry Association of follows:
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ENVIRONMENTAL PROTECTION normal business hours are 8:30 a.m. to listing of the contents of the official AGENCY 4:30 p.m., excluding legal holidays. public docket, and to access those Comments can be submitted to the documents in the public docket that are 40 CFR Part 51 address above, by fax (202) 566–1741, or available electronically. Although not by e-mail to [email protected]. all docket materials may be available [FRL–7522–7] The voice telephone number is (202) electronically, you may still access any Revisions to the Regional Haze Rule 566–1742. of the publicly available docket To Correct Mobile Source Provisions FOR FURTHER INFORMATION CONTACT: If materials through the docket facility in Optional Program for Nine Western you would like further information identified above. Once in the system, States and Eligible Indian Tribes about this rule or to request a public select ‘‘search,’’ then key in the docket Within That Geographic Area hearing, contact Kathy Kaufman, identification number, OAR–2002–0076. Integrated Policies and Strategies Group, Outline. The contents of today’s AGENCY: Environmental Protection (919) 541–0102 or by e-mail preamble are listed in the following Agency (EPA). [email protected]. outline. ACTION: Direct final rule. SUPPLEMENTARY INFORMATION: I. Background A. What is the regional haze rule? SUMMARY: The EPA is taking direct final Regulated Entities action to approve a correction to the B. What are the special provisions for Entities potentially regulated by this Western States and eligible Indian Tribes mobile source provisions in the EPA’s action are nine States in the Western in 40 CFR 51.309 of the regional haze regional haze rule. This correction is United States (Arizona, California, rule? consistent with recommendations of the Colorado, Idaho, Nevada, New Mexico, II. Changes to the Mobile Source Provisions Western Regional Air Partnership of Section 309 Oregon, Utah and Wyoming) and Indian (WRAP). The amendments to the rule A. Why are we changing the mobile source Tribes within that same geographic area. are intended to address an emissions provisions of 40 CFR 51.309? This action, and an earlier action taken projection scenario for mobile sources B. What are the specific changes to the by EPA in 1999, provides these States mobile source provisions of 40 CFR which was not addressed when EPA and Tribes with an optional program to 51.309? published the regional haze rule in protect visibility in federally protected III. Statutory and Executive Order Reviews 1999. scenic areas. The portion of the program A. Executive Order 12866: Regulatory In the Proposed Rules section of this addressed by today’s action is a program Planning and Review Federal Register, we are proposing B. Paperwork Reduction Act for tracking of mobile source emissions approval and soliciting written C. Regulatory Flexibility Act under the 1999 rule. comment on this action. If adverse D. Unfunded Mandates Reform Act Docket. The EPA has established an written comments are received, we will E. Executive Order 13132: Federalism official public docket for this action withdraw the direct final rule and F. Executive Order 13175: Consultation and under Docket No. OAR–2002–0076. The Coordination with Indian Tribal address the comments received in a new official public docket consists of the Governments final rule; otherwise, no further documents specifically referenced in G. Executive Order 13045: Protection of rulemaking will occur on this approval this action, any public comments Children from Environmental Health and action. Safety Risks received, and other information related H. Executive Order 13211: Actions that DATES: In the ‘‘Proposed Rules’’ section to this action. Although a part of the of today’s Federal Register, we are Significantly Affect Energy Supply, official docket, the public docket does Distribution or Use publishing a proposed rule that matches not include confidential business I. National Technology Transfer the substance of this direct final rule. If information or other information whose Advancement Act the Agency receives adverse comment disclosure is restricted by statute. The J. Executive Order 12898: Federal Actions to or a request for public hearing by official public docket is the collection of Address Environmental Justice in August 4, 2003, we will withdraw this materials that is available for public Minority Populations and Low-Income direct final rule by publishing a timely viewing at the Air Docket in the EPA Populations withdrawal notice in the Federal K. Congressional Review Act Docket Center, Room B102, 1301 IV. Statutory Provisions and Legal Authority Register. If the Agency receives no Constitution Ave., NW., Washington, adverse comments to the proposed rule, DC. The EPA Docket Center Public I. Background this direct final rule is effective Reading Room is open from 8:30 a.m. to September 2, 2003. 4:30 p.m., Monday through Friday, A. What Is the Regional Haze Rule? ADDRESSES: All comments should be excluding legal holidays. The telephone Section 169(A) of the Clean Air Act submitted to Docket No. OAR–2002– number for the Reading Room is (202) (CAA) establishes a national goal for 0076. When mailing documents, 566–1744, and the telephone number for protecting visibility in federally- comments, or requests to the EPA the Air Docket is (202) 566–1742. A protected scenic areas. These ‘‘Class I’’ Docket Center through the U.S. Postal reasonable fee may be charged for areas include national parks and Service, please use the following copying. wilderness areas. The national visibility address: U.S. Environmental Protection Electronic Access. You may access goal is to remedy existing impairment Agency, EPA West (Air Docket), 1200 this Federal Register document and prevent future impairment in these Pennsylvania Avenue, NW., Room electronically through the EPA Internet Class I areas, consistent with the B108; Mail Code: 6102T, Washington, under the ‘‘Federal Register’’ listings at requirements of sections 169A and 169B DC 20460. To mail comments or http://www.epa.gov/fedrgstr/. An of the CAA. documents through a courier service, electronic version of the public docket Regional haze is a type of visibility the mailing address is: EPA Docket is available through EPA’s electronic impairment caused by air pollutants Center (Air Docket), U.S. Environmental public docket and comment system, emitted by numerous sources across a Protection Agency, 1301 Constitution EPA Dockets. You may use EPA Dockets broad region. The EPA uses the term Avenue, NW., Room B108; Mail Code: at http://www.epa.gov/edocket/ to view regional haze to distinguish this type of 6102T, Washington, DC 20004. The public comments, access the index visibility problem from those which are
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more local in nature. In 1999, EPA Region States and eligible Tribes within As a result of these new standards, the issued a regional haze rule requiring that geographic area to implement many WRAP, using EPA’s latest models,4 now States to develop implementation plans of the GCVTC recommendations within projects a significant decline in mobile that will make ‘‘reasonable progress’’ the framework of the national regional source emissions throughout the region toward the national visibility goal (64 haze rule. during the 2003–2018 time period FR 35714, July 1, 1999). The first State The provisions in 40 CFR 51.309 covered by the section 309 plans, plans for regional haze are due between comprise a comprehensive long-term particularly from on-road mobile 2003 and 2008. The regional haze rule strategy for addressing sources that sources. Rather than emissions being provisions appear at 40 CFR 51.308 and contribute to visibility impairment lowest in 2005, and subsequently rising, 40 CFR 51.309. within this geographic region. The mobile source emissions for all strategy addresses the time period pollutants except sulfur dioxide (SO ) B. What Are the Special Provisions for 2 between the year 2003, when the are expected to decline continuously Western States and Eligible Indian implementation plans are due,2 and the over the course of the first regional haze Tribes in 40 CFR 51.309 of the Regional year 2018. The provisions address planning period. Haze Rule? emissions from stationary sources, The projected trends for mobile The regional haze rule at 40 CFR mobile sources, and area sources such source emissions of SO2 differ from 51.308 sets forth the requirements for as emissions from fires and windblown those of other pollutants. Emissions State implementation plans (SIPs) under dust. reductions from pollutants such as the regional haze program. The rule nitrogen oxides (NO ) and particulate II. Changes to the Mobile Source X requires State plans to include visibility matter (PM) are dependent on Provisions of Section 309 progress goals for each Class I area, as technological changes to the onroad well as emissions reductions strategies A. Why Are We Changing the Mobile fleet and to nonroad engines which are and other measures needed to meet Source Provisions of 40 CFR 51.309? implemented gradually. In contrast, SO2 these goals. The rule also provides an emissions reductions are immediately 1. What is the Basis for the Old optional approach, described in 40 CFR realized when the sulfur content of the Provisions? 51.309, that may be followed by the fuel changes, because emissions from nine Western States (Arizona, The GCVTC determined that mobile both new and existing engines California, Colorado, Idaho, Nevada, source emissions need to be an essential immediately drop sharply. We have New Mexico, Oregon, Utah, and part of a strategy to reduce haze on the already published stringent fuel sulfur Wyoming) that comprise the transport Colorado Plateau. Therefore, one limits for onroad engines and have region analyzed by the Grand Canyon element of the GCVTC’s strategy, as proposed stringent fuel sulfur limits for Visibility Transport Commission reflected in 40 CFR 51.309(d)(5), was to nonroad engines.5 These Federal fuel (GCVTC) during the 1990’s. This address mobile sources emissions. sulfur regulations, fully implemented, optional approach is also available to Section 309 also requires States to would together result in a substantial eligible Indian Tribes within this establish a mobile source emissions reduction in SO2 emissions over the geographic region. The regulatory budget for each area that significantly 2003–2018 planning period. provisions at 40 CFR 51.309 are based contributes to visibility impairment in B. What Are the Specific Changes to the on the final report issued by the GCVTC any of the 16 Class I areas covered by Mobile Source Provisions of 40 CFR in 1996,1 which included a number of this section of the regulations. At the 51.309? recommended emissions reductions time the GCVTC made its strategies designed to improve visibility recommendations (in 1996), mobile These revisions would change in the 16 Class I areas on the Colorado source emissions were projected to be § 51.309(d)(5)(i) to eliminate the Plateau. lowest in 2005, and to subsequently rise requirement for setting mobile source In developing the regional haze rule, over the course of the first regional haze emissions budgets using the lowest EPA received a number of comments on planning period (i.e., until 2018). projected level as a planning objective the proposed rule encouraging the Accordingly, section 309 required and performance indicator for each area. Agency to recognize explicitly the work mobile source emissions budgets to be Instead, the new § 51.309(d)(5)(i) would of the GCVTC. In addition, in June 1998, set using the lowest projected level as a substitute, as the new planning Governor Leavitt of Utah provided planning objective and performance objective and performance indicator, a comments to EPA on behalf of the indicator for each area. requirement for statewide inventories to show a continuous decline in emissions Western Governors Association (WGA), 2. What is the Basis for the New of each pollutant of concern over the further emphasizing the commitment of Provisions? Western States to implementing the planning period. Should mobile source GCVTC recommendations. The WGA’s Since the GCVTC made its emissions not decline as expected, comments also suggested the translation recommendations, new developments States would have to revise their SIPs to of the GCVTC’s recommendations into have caused mobile source emissions include any feasible additional specific regulatory language. The EPA projections to change significantly. Over strategies. This new requirement issued a Notice of Availability during the past few years, we have promulgated conforms to trends that are currently the fall of 1998 requesting further a series of new emissions standards for projected. several different engine types, as well as comment on the WGA’s proposal and a In addition, in light of the continuous new standards for diesel fuel content.3 draft set of regulatory language based decline in mobile source emissions upon the WGA’s recommendations. expected over the entire region, these 2 Indian Tribes are given the flexibility under EPA revisions also eliminate the unneeded Based on the comments received on this regulations to submit implementation plans and opt Federal Register action, EPA developed into the program after the 2003 deadline. requirement in § 51.309(5)(ii) and (iii) to the provisions set forth in 40 CFR 3 See 62 FR 25355, (May 8, 1997); 63 FR 18978, (April 16, 1998); 63 FR 56968, (October 23, 1998); 4 MOBILE6 and MOBILE6.2 for on-highway 51.309 that allow the nine Transport 64 FR 73300, (December 29, 1999); 65 FR 59895, vehicles and the NONROAD model for nonroad (October 6, 2000); 66 FR 5001, (January 18, 2001); vehicles. 1 Recommendations for Improving Western 67 FR 68241, (November 8, 2002); and 68 FR 9745, 5 See http://www.epa.gov/nonroad/ [nonroad Vistas. GCVTC, June 10, 1996. (February 28, 2003). diesel proposal, signed 4/15/03].
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determine whether mobile sources information as defined by the owned and operated and is not emissions constitute a significant Paperwork Reduction Act, 44 U.S.C. dominant in its field. contributor to haze in a given State. The 3501 et seq. The OMB has approved the After considering the economic revisions retain the requirements for information collection requirements impacts of today’s direct final rule on statewide inventories and performance contained in the final Regional Haze small entities, I certify that this action demonstrations. regulations (64 FR 35714, July 1, 1999) will not have a significant economic Finally, the revisions contain a and has assigned OMB control number impact on a substantial number of small backstop provision, requested by the 2060–0421 (EPA ICR No. 1813.04). entities. In determining whether a rule WRAP, to address any potential Burden means the total time, effort, or has a significant economic impact on a concerns regarding SO2 from nonroad financial resources expended by persons substantial number of small entities, the sources in the event that recently to generate, maintain, retain, or disclose impact of concern is any significant proposed Federal standards, referenced or provide information to or for a adverse economic impact on small above, are not finalized. The backstop Federal agency. This includes the time entities, since the primary purpose of provision, contained in the new needed to review instructions; develop, the regulatory flexibility analyses is to § 51.309(d)(5)(i)(B), requires States to acquire, install, and utilize technology identify and address regulatory assess the need for any long-term and systems for the purposes of alternatives ‘‘which minimize any strategies to address SO2 from nonroad collecting, validating, and verifying significant economic impact of the mobile sources by no later than information, processing and proposed rule on small entities.’’ 5 December 31, 2008. In determining maintaining information, and disclosing U.S.C. 603 and 604. Thus, an agency whether to revise their SIPs to address and providing information; adjust the may certify that a rule will not have a significant economic impact on a SO2 from mobile sources, States may existing ways to comply with any consider the emissions reductions previously applicable instructions and substantial number of small entities if achieved—or anticipated—by any requirements; train personnel to be able the rule relieves regulatory burden, or Federal standards that are in place to respond to a collection of otherwise has a positive economic effect addressing fuel sulfur content for information; search data sources; on all of the small entities subject to the nonroad engines. complete and review the collection of rule. This rule eliminates certain information; and transmit or otherwise III. Statutory and Executive Order comprehensive requirements to address disclose the information. An agency Reviews mobile source emissions that EPA now may not conduct or sponsor, and a considers to be unnecessary. A. Executive Order 12866: Regulatory person is not required to respond to a Planning and Review Specifically, as discussed above, this collection of information unless it rule eliminates the requirements in Under Executive Order 12866 (58 FR displays a currently valid OMB control § 51.309(5)(ii) and (iii) to determine 51735, October 4, 1993), the Agency number. The OMB control numbers for whether mobile sources emissions must determine whether the regulatory EPA’s regulations are listed in 40 CFR constitute a significant contributor to action is ‘‘significant’’ and therefore part 9 and 48 CFR chapter 15. haze in a given State, and for those subject to Office of Management and C. Regulatory Flexibility Act States with areas that meet this Budget (OMB) review and the significance criterion, to establish requirements of the Executive Order. The Regulatory Flexibility Act (RFA), mobile source emissions budgets. The The Order defines ‘‘significant as amended by the Small Business rule requires emissions reductions regulatory action’’ as one that is likely Regulatory Enforcement Fairness Act of consistent with the downward trend in to result in a rule that may: 1996 (SBREFA), 5 U.S.C. 601 et seq., mobile source emission inventories that ‘‘(1) have an annual effect on the generally requires an agency to prepare is currently projected, based on economy of $100 million or more or a regulatory flexibility analysis of any regulations that have already been adversely affect in a material way the rule subject to notice and comment promulgated. We have therefore economy, a sector of the economy, rulemaking requirements under the concluded that today’s rule will relieve productivity, competition, jobs, the Administrative Procedure Act or any regulatory burden for all small entities. environment, public health or safety, or other statute unless the agency certifies D. Unfunded Mandates Reform Act State, local, or Tribal governments or that the rule will not have a significant communities; economic impact on a substantial Title II of the Unfunded Mandates (2) create a serious inconsistency or number of small entities. Small entities Reform Act of 1995 (Pub. L. 104–4) otherwise interfere with an action taken include small businesses, small (UMRA), establishes requirements for or planned by another agency; organizations, and small governmental Federal agencies to assess the effects of (3) materially alter the budgetary jurisdictions. their regulatory actions on State, local, impact of entitlements, grants, user fees, For purposes of assessing the impacts and Tribal governments and the private or loan programs or the rights and of today’s rulemaking on small entities, sector. Under section 202 of the UMRA, obligations of recipients thereof; or small entity is defined as: (1) A small 2 U.S.C. 1532, EPA generally must (4) raise novel legal or policy issues business that is a small industrial entity prepare a written statement, including a arising out of legal mandates, the as defined in the U.S. Small Business cost-benefit analysis, for any proposed President’s priorities, or the principles Administration (SBA) size standards (as or final rule that ‘‘includes any Federal set forth in the Executive Order.’’ discussed on the SBA Web site at http:/ mandate that may result in the Pursuant to the terms of Executive /www.sba.gov/size/ expenditure by State, local, and Tribal Order 12866, we have determined that indextableofsize.html); (2) a small governments, in the aggregate, or by the this direct final rule is not a significant governmental jurisdiction that is a private sector, of $100,000,000 or more regulatory action. government of a city, county, town, * * * in any one year.’’ A ‘‘Federal school district or special district with a mandate’’ is defined under section B. Paperwork Reduction Act population of less than 50,000; and (3) 421(6), 2 U.S.C. 658(6), to include a This action does not add any new a small organization that is any not-for- ‘‘Federal intergovernmental mandate’’ requirements involving the collection of profit enterprise which is independently and a ‘‘Federal private sector mandate.’’
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A ‘‘Federal intergovernmental regulatory policies that have federalism 67249, November 6, 2000), requires EPA mandate,’’ in turn, is defined to include implications.’’ ‘‘Policies that have to develop an accountable process to a regulation that ‘‘would impose an federalism implications’’ is defined in ensure ‘‘meaningful and timely input by enforceable duty upon State, local, or the Executive Order to include tribal officials in the development of Tribal governments,’’ section regulations that have ‘‘substantial direct regulatory policies that have tribal 421(5)(A)(i), 2 U.S.C. 658(5)(A)(i), effects on the States, on the relationship implications.’’ ‘‘Policies that have tribal except for, among other things, a duty between the national government and implications’’ is defined in the that is ‘‘a condition of Federal the States, or on the distribution of Executive Order to include regulations assistance,’’ section 421(5)(A)(i)(I). A power and responsibilities among the that have ‘‘substantial direct effects on ‘‘Federal private sector mandate’’ various levels of government.’’ one or more Indian tribes, on the includes a regulation that ‘‘would Under section 6(b) of Executive Order relationship between the Federal impose an enforceable duty upon the 13132, EPA may not issue a regulation private sector,’’ with certain exceptions, that has federalism implications, that government and the Indian tribes, or on section 421(7)(A), 2 U.S.C. 658(7)(A). imposes substantial direct compliance the distribution of power and Before promulgating an EPA rule for costs, and that is not required by statute, responsibilities between the Federal which a written statement is needed unless the Federal government provides government and Indian tribes.’’ under section 202 of the UMRA, section the funds necessary to pay the direct This rule eliminates certain 205, 2 U.S.C. 1535, of the UMRA compliance costs incurred by State and requirements and will overall reduce generally requires EPA to identify and local governments, or EPA consults with any regulatory burden on the Tribes. consider a reasonable number of State and local officials early in the Moreover, the section 309 program is an regulatory alternatives and adopt the process of developing a regulation. optional program for Tribes within the least costly, most cost-effective, or least Under section 6(c) of Executive Order same geographic region as the WRAP burdensome alternative that achieves 13132, EPA may not issue a regulation states. Accordingly, this rule will not the objectives of the rule. that has federalism implications and have tribal implications. In addition, Because the entire program under 40 that preempts State law, unless EPA this rule directly implements specific CFR 51.309, including today’s consults with State and local officials amendments, is an option that each of early in the process of developing the recommendations from the WRAP, the States may choose to exercise, these regulation. which includes representatives of Tribal revisions to section 309 do not establish This rule does not have federalism governments. Thus, although the rule any regulatory requirements that may implications. It will not have substantial does not have tribal implications, significantly or uniquely affect small direct effects on the States, on the representatives of Tribal governments governments, including Tribal relationship between the national have had the opportunity to provide governments. The program is not government and the States, or on the input into development of the required and, thus is clearly not a distribution of power and recommendations forming its basis. ‘‘mandate.’’ Moreover, as explained responsibilities among the various above, today’s rule eliminates certain levels of government, as specified in G. Executive Order 13045: Protection of requirements and will overall reduce Executive Order 13132. As described Children From Environmental Health any regulatory burdens. Accordingly, above, this rule contains minor and Safety Risks this rule will not result in expenditures revisions to section 309 of the regional Executive Order 13045: ‘‘Protection of to State, local, and Tribal governments, haze rule which will reduce any Children from Environmental Health in the aggregate, or the private sector, of regulatory burden on the States. In and Safety Risks’’ (62 FR 19885, April $100 million or more in any given year. addition, section 309 is an optional 23, 1997) applies to any rule that: (1) Is Thus EPA is not obligated, under program for States. The minor revisions section 203 of UMRA, to develop a to section 309, accordingly, do not determined to be ‘‘economically small government agency plan. directly impose significant new significant’’ as defined under Executive We believe that this rulemaking is not requirements on State and local Order 12866, and (2) concerns an subject to the requirements of UMRA. governments. Moreover, even if today’s environmental health or safety risk that For regional haze SIPs overall, it is revisions did have federalism EPA has reason to believe may have a questionable whether a requirement to implications, these revisions would not disproportionate effect on children. If submit a SIP revision constitutes a impose substantial direct compliance the regulatory action meets both criteria, Federal mandate, as discussed in the costs on State or local governments, nor the Agency must evaluate the preamble to the regional haze rule (64 would they preempt State law. Thus, environmental health or safety effects of FR 35761, July 1, 1999). However, Executive Order 13132 does not apply the planned rule on children, and today’s direct final rule contains no to this rule. explain why the planned regulation is Federal mandates (under the regulatory Consistent with EPA policy, we preferable to other potentially effective provisions of title II of the UMRA) for nonetheless did consult with and reasonably feasible alternatives State, local or tribal governments or the representatives of State and local considered by the Agency. private sector. In addition, the program governments in developing this rule. The EPA interprets Executive Order contained in 40 CFR 51.309, including This rule directly implements specific 13045 as applying only to those today’s revisions, is an optional recommendations from the WRAP, program. which includes representatives from all regulatory actions that are based on the affected States. health or safety risks, such that the E. Executive Order 13132: Federalism analysis required under section 5–501 of Executive Order 13132, entitled F. Executive Order 13175: Consultation the Order has the potential to influence ‘‘Federalism’’ (64 FR 43255, August 10, and Coordination With Indian Tribal the regulation. This rule is not subject 1999), requires EPA to develop an Governments to Executive Order 13045 because it accountable process to ensure Executive Order 13175, entitled does not establish an environmental ‘‘meaningful and timely input by State ‘‘Consultation and Coordination with standard intended to mitigate health or and local officials in the development of Indian Tribal Governments’’ (65 FR safety risks.
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H. Executive Order 13211: Actions That and to the Comptroller General of the previous period (i.e., 2008 less than Significantly Affect Energy Supply, United States. The EPA will submit a 2003; 2013 less than 2008; and 2018 less Distribution or Use report containing this rule and other than 2013). This rule is not subject to Executive required information to the U.S. Senate, * * * * * Order 13211, ‘‘Actions that Significantly the U.S. House of Representatives, and (d)(5)(i) Statewide inventories of Affect Energy Supply, Distribution, or the Comptroller General of the United onroad and nonroad mobile source Use’’ (66 FR 28355, May 22, 2001) States prior to publication of the rule in emissions of VOC, NOX, SO2, PM2.5, because it is not a significant regulatory the Federal Register. A ‘‘major rule’’ elemental carbon, and organic carbon action under Executive Order 12866. cannot take effect until 60 days after it for the years 2003, 2008, 2013, and is published in the Federal Register. 2018. I. National Technology Transfer This action is not a ‘‘major rule’’ as (A) The inventories must demonstrate Advancement Act defined by 5 U.S.C. 804(a). a continuous decline in total mobile Section 12(d) of the National IV. Statutory Provisions and Legal source emissions (onroad plus nonroad; Technology Transfer and Advancement Authority tailpipe and evaporative) of VOC, NOX, Act of 1995 (‘‘NTTAA’’), Public Law No. PM2.5, elemental carbon, and organic 104–113, section 12(d) (15 U.S.C. 272 Statutory authority for today’s direct carbon, evaluated separately. If the note) directs EPA to use voluntary final rule comes from sections 169(a) inventories show a continuous decline consensus standards in its regulatory and 169(b) of the CAA (42 U.S.C. in total mobile source emissions of each activities unless to do so would be 7545(c) and (k)). These sections require of these pollutants over the period inconsistent with applicable law or EPA to issue regulations that will 2003–2018, no further action is required otherwise impractical. Voluntary require States to revise their SIPs to as part of this plan to address mobile consensus standards are technical ensure that reasonable progress is made source emissions of these pollutants. If standards (e.g., materials specifications, toward the national visibility goals the inventories do not show a test methods, sampling procedures, and specified in section 169(A). continuous decline in mobile source business practices) that are developed or List of Subjects in 40 CFR Part 51 emissions of one or more of these adopted by voluntary consensus pollutants over the period 2003–2018, Environmental protection, standards bodies. The NTTAA directs the plan submission must provide for an Administrative practice and procedure, EPA to provide Congress, through OMB, implementation plan revision by no Air pollution control, Carbon monoxide, explanations when the Agency decides later than December 31, 2008 containing Nitrogen dioxide, Particulate matter, not to use available and applicable any necessary long-term strategies to Sulfur oxides, Volatile organic voluntary consensus standards. achieve a continuous decline in total compounds. This action does not involve technical mobile source emissions of the standards. Therefore, EPA did not Dated: June 27, 2003. pollutant(s), to the extent practicable, consider the use of any voluntary Christine Todd Whitman, considering economic and technological consensus standards. Administrator. reasonableness and Federal preemption J. Executive Order 12898: Federal ■ For the reasons set forth in the of vehicle standards and fuel standards Actions To Address Environmental preamble, part 51 of title 40, Chapter 1 under title II of the CAA. Justice in Minority Populations and of the Code of Federal Regulations is (B) The plan submission must also Low-Income Populations amended as follows: provide for an implementation plan Executive Order 12898 requires that revision by no later than December 31, each Federal agency make achieving PART 51—REQUIREMENTS FOR 2008 containing any long-term strategies environmental justice part of its mission PREPARATION, ADOPTION, AND necessary to reduce emissions of SO2 by identifying and addressing, as SUBMITTAL OF IMPLEMENTATION from nonroad mobile sources, consistent appropriate, disproportionately high PLANS with the goal of reasonable progress. In assessing the need for such long-term and adverse human health or ■ 1. The authority citation for part 51 environmental effects of its programs, strategies, the State may consider continues to read as follows: policies, and activities on minorities emissions reductions achieved or and low-income populations. The Authority: 42 U.S.C. 7410, 7414, 7421, anticipated from any new Federal requirements of Executive Order 12898 7470–7479, 7492, 7601, and 7602. standards for sulfur in nonroad diesel have been previously addressed to the fuel. Subpart P—Protection of Visibility extent practicable in the Regulatory (ii) [text of (iv) retained same as before] Impact Analysis (RIA) for the regional ■ 2. Section 51.309 is amended by haze rule (cited above), particularly in revising paragraphs (b)(6) and (d)(5)(i), [FR Doc. 03–16922 Filed 7–2–03; 8:45 am] chapters 2 and 9 of the RIA. Today’s deleting paragraphs (d)(ii) and (d)(iii), BILLING CODE 6560–50–P direct final rule makes no changes that and renumbering (d)(iv) to (d)(ii), to read would have a disproportionately high as follows: and adverse human health or ENVIRONMENTAL PROTECTION environmental effect on minorities and § 51.309 Requirements related to the AGENCY low-income populations. Grand Canyon Visibility Transport Commission. 40 CFR Part 180 K. Congressional Review Act * * * * * The Congressional Review Act, 5 (b)(6) Continuous decline in total [OPP–2003–0135; FRL–7313–7] U.S.C. 801 et seq., as added by the mobile source emissions means that the SBREFA, generally provides that before projected level of emissions from mobile Fludioxonil; Pesticide Tolerance a rule may take effect, the agency sources of each listed pollutant in 2008, AGENCY: Environmental Protection promulgating the rule must submit a 2013, and 2018, are less than the Agency (EPA). rule report, which includes a copy of projected level of emissions from mobile ACTION: Final rule. the rule, to each House of the Congress sources of each listed pollutant for the
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SUMMARY: This regulation establishes If you have any questions regarding the #1 South, New Brunswick, NJ 08902– tolerances for residues of fludioxonil in applicability of this action to a 3390. That notice included a summary or on Brassica, head and stem, subgroup particular entity, consult the person of the petitions prepared by Syngenta 5A; brassica, leafy greens, subgroup 5B; listed under FOR FURTHER INFORMATION Crop Protection, Inc., the registrant. carrot; herb, fresh, subgroup 19A; herb, CONTACT. The petitions requested that 40 CFR 180.516 be amended by establishing dried, subgroup 19A; longan; lychee; B. How Can I Get Copies of this pulasan; rambutan; spanish lime; and tolerances for residues of the fungicide Document and Other Related fludioxonil, (4-(2,2-difluoro-1,3- turnip, greens. Interregional Research Information? Project Number 4 (IR-4) requested these benzodioxol-4-yl)-1H-pyrrole-3- tolerances under the Federal Food, 1. Docket. EPA has established an carbonitrile), in or on the following Drug, and Cosmetic Act (FFDCA), as official public docket for this action commodities: Brassica, head and stem, amended by the Food Quality Protection under docket identification (ID) number subgroup 5A at 1.5 ppm; brassica, leafy Act of 1996 (FQPA). This regulation also OPP–2003–0135. The official public greens, subgroup 5B at 9.0 ppm; carrot deletes brassica, leafy, group at 0.01 docket consists of the documents at 0.5 ppm; herb subgroup 19A at 33 parts per million (ppm), which is specifically referenced in this action, ppm; longan, lychee, pulasan, replaced with brassica, leafy greens, any public comments received, and rambutan, and spanish lime at 2.0 ppm; subgroup 5B at 10 ppm, and brassica, other information related to this action. and turnip, greens at 9.0 ppm. head and stem, subgroup 5A at 2.0 ppm. Although a part of the official docket, Section 408(b)(2)(A)(i) of the FFDCA the public docket does not include allows EPA to establish a tolerance (the DATES: This regulation is effective July Confidential Business Information (CBI) legal limit for a pesticide chemical 3, 2003. Objections and requests for or other information whose disclosure is residue in or on a food) only if EPA hearings, identified by docket ID restricted by statute. The official public determines that the tolerance is ‘‘safe.’’ number OPP–2003–0135, must be docket is the collection of materials that Section 408(b)(2)(A)(ii) of the FFDCA received on or before September 2, is available for public viewing at the defines ‘‘safe’’ to mean that ‘‘there is a 2003. Public Information and Records reasonable certainty that no harm will ADDRESSES: Written objections and Integrity Branch (PIRIB), Rm. 119, result from aggregate exposure to the hearing requests may be submitted Crystal Mall #2, 1921 Jefferson Davis pesticide chemical residue, including electronically, by mail, or through hand Hwy., Arlington, VA. This docket all anticipated dietary exposures and all delivery/courier. Follow the detailed facility is open from 8:30 a.m. to 4 p.m., other exposures for which there is instructions as provided in Unit VI. of Monday through Friday, excluding legal reliable information.’’ This includes the SUPPLEMENTARY INFORMATION. holidays. The docket telephone number exposure through drinking water and in FOR FURTHER INFORMATION CONTACT: is (703) 305–5805. residential settings, but does not include Shaja R. Brothers, Registration Division 2. Electronic access. You may access occupational exposure. Section (7505C), Office of Pesticide Programs, this Federal Register document 408(b)(2)(C) of the FFDCA requires EPA Environmental Protection Agency, 1200 electronically through the EPA Internet to give special consideration to Pennsylvania Ave., NW.,Washington, under the ‘‘Federal Register’’ listings at exposure of infants and children to the DC 20460–0001; telephone number: http://www.epa.gov/fedrgstr/. A pesticide chemical residue in (703) 308–3194; e-mail address: frequently updated electronic version of establishing a tolerance and to ‘‘ensure [email protected]. 40 CFR part 180 is available at http:// that there is a reasonable certainty that www.access.gpo.gov/nara/cfr/ no harm will result to infants and SUPPLEMENTARY INFORMATION: cfrhtml_00/Title_40/40cfr180_00.html, a children from aggregate exposure to the I. General Information beta site currently under development. pesticide chemical residue. . . .’’ An electronic version of the public EPA performs a number of analyses to A. Does this Action Apply to Me? docket is available through EPA’s determine the risks from aggregate You may be potentially affected by electronic public docket and comment exposure to pesticide residues. For this action if you an are agricultural system, EPA Dockets. You may use EPA further discussion of the regulatory producer, food manufacturer, and Dockets at http://www.epa.gov/edocket/ requirements of section 408 of the pesticide manufacturer. Potentially to submit or view public comments, FFDCA and a complete description of affected entities may include, but are access the index listing of the contents the risk assessment process, see the final not limited to: of the official public docket, and to rule on Bifenthrin Pesticide Tolerances • Crop production (NAICS 111) access those documents in the public (62 FR 62961, November 26, 1997) • Animal production (NAICS 112) docket that are available electronically. (FRL–5754–7). • Food manufacturing (NAICS 311) Although not all docket materials may III. Aggregate Risk Assessment and • Pesticide manufacturing (NAICS be available electronically, you may still Determination of Safety 32532) access any of the publicly available This listing is not intended to be docket materials through the docket Consistent with section 408(b)(2)(D) exhaustive, but rather provides a guide facility identified in Unit I.B.1. Once in of the FFDCA, EPA has reviewed the for readers regarding entities likely to be the system, select ‘‘search,’’ then key in available scientific data and other affected by this action. Other types of the appropriate docket ID number. relevant information in support of this entities not listed in this unit could also action. EPA has sufficient data to assess be affected. The North American II. Background and Statutory Findings the hazards of and to make a Industrial Classification System In the Federal Register of April 2, determination on aggregate exposure, (NAICS) codes have been provided to 2003 (68 FR 16046) (FRL–7299–6), EPA consistent with section 408(b)(2) of the assist you and others in determining issued a notice pursuant to section 408 FFDCA, for tolerances for residues of whether this action might apply to of FFDCA, 21 U.S.C. 346a, as amended fludioxonil on Brassica, head and stem, certain entities. To determine whether by FQPA (Public Law 104–170), subgroup 5A at 2.0 ppm; brassica, leafy you or your business may be affected by announcing the filing of pesticide greens, subgroup 5B at 10 ppm; carrot this action, you should carefully petitions (PP 2E6448, 2E6462, 2E6486, at 0.75 ppm; herb, fresh, subgroup 19A examine the applicability provisions in. and 3E6526) by IR-4, 681 US Highway at 10 ppm; herb, dried, subgroup 19A at
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65 ppm; longan, lychee, pulasan, the NOAEL to exposures (margin of respondents in the USDA 1994–1996, rambutan, and spanish lime at 1.0 ppm; exposure (MOE) = NOAEL/exposure) is 1998 nationwide Continuing Surveys of and turnip, greens at 10 ppm. EPA’s calculated and compared to the LOC. Food Intake by Individuals (CSFII) and assessment of exposures and risks The linear default risk methodology accumulated exposure to the chemical associated with establishing the (Q*) is the primary method currently for each commodity. The following tolerances follow. used by the Agency to quantify assumptions were made for the acute carcinogenic risk. The Q* approach exposure assessments: The acute A. Toxicological Profile assumes that any amount of exposure analysis assumed tolerance level EPA has evaluated the available will lead to some degree of cancer risk. residues, 100% crop treatment (CT), and toxicity data and considered its validity, A Q* is calculated and used to estimate DEEM (ver. 7.76) default processing completeness, and reliability as well as risk which represents a probability of factors for all registered/proposed the relationship of the results of the occurrence of additional cancer cases commodities (tier 1). studies to human risk. EPA has also (e.g., risk is expressed as 1 x 10-6 or one ii. Chronic exposure. In conducting considered available information in a million). Under certain specific this chronic dietary risk assessment the concerning the variability of the circumstances, MOE calculations will DEEM analysis evaluated the individual sensitivities of major identifiable be used for the carcinogenic risk food consumption as reported by subgroups of consumers, including assessment. In this non-linear approach, respondents in the USDA 1994–1996, infants and children. The nature of the a ‘‘point of departure’’ is identified 1998 nationwide CSFII and toxic effects caused by fludioxonil are below which carcinogenic effects are accumulated exposure to the chemical discussed in Unit III.A. of the final rule not expected. The point of departure is for each commodity. The following on fludioxonil, which published in the typically a NOAEL based on an assumptions were made for the chronic Federal Register of December 29, 2000 endpoint related to cancer effects exposure assessments: The chronic (65 FR 82927) (FRL–6760–9), and though it may be a different value analysis assumed tolerance level August 2, 2002 (67 FR 50354) (FRL– derived from the dose response curve. residues, 100% CT, and DEEM (ver. 7188–7). To estimate risk, a ratio of the point of 7.76) default processing factors for all B. Toxicological Endpoints departure to exposure (MOE cancer = registered/proposed commodities (tier point of departure/exposures) is 1). The dose at which no adverse effects calculated. A summary of the iii. Cancer. EPA’s Cancer Peer Review are observed (the NOAEL) from the toxicological endpoints for fludioxonil Committee (CPRC) classified fludioxonil toxicology study identified as used for human risk assessment is Unit as a Group D - not classifiable as to appropriate for use in risk assessment is III.B.of the final rule on fludioxonil, human carcinogenicity. used to estimate the toxicological level which published in the Federal Register 2. Dietary exposure from drinking of concern (LOC). However, the lowest of December 29, 2000 (65 FR 82927) and water. The Agency lacks sufficient dose at which adverse effects of concern August 2, 2002 (67 FR 50354). monitoring exposure data to complete a are identified (the LOAEL) is sometimes comprehensive dietary exposure used for risk assessment if no NOAEL C. Exposure Assessment analysis and risk assessment for was achieved in the toxicology study 1. Dietary exposure from food and fludioxonil in drinking water. Because selected. An uncertainty factor (UF) is feed uses. Tolerances have been the Agency does not have applied to reflect uncertainties inherent established (40 CFR 180.516) for the comprehensive monitoring data, in the extrapolation from laboratory residues of fludioxonil, in or on a drinking water concentration estimates animal data to humans and in the variety of raw agricultural commodities. are made by reliance on simulation or variations in sensitivity among members Fludioxonil is registered for foliar modeling taking into account data on of the human population as well as application (grape, strawberry, green the physical characteristics of other unknowns. An UF of 100 is onion, dry bulb onion, bushberry, fludioxonil. routinely used, 10X to account for caneberry, juneberry, longonberry, The Agency uses the First Index interspecies differences and 10X for pistachio, salal, and watercress), post- Reservoir Screening Tool (FIRST) or the intra species differences. harvest application (stone fruit), and for Pesticide Root Zone model/Exposure For dietary risk assessment (other seed treatment purposes (numerous Analysis Modeling System (PRZM/ than cancer) the Agency uses the UF to crops) with tolerances for residues of EXAMS), to produce estimates of calculate an acute or chronic reference fludioxonil ranging from 0.01-7.0 ppm pesticide concentrations in an index dose (acute RfD or chronic RfD) where (40 CFR 180.516(a)). A section 18 reservoir. The Screening Concentration the RfD is equal to the NOAEL divided registration is also established for post- in Ground Water (SCI-GROW) model is by the appropriate UF (RfD = NOAEL/ harvest application to pomegranate with used to predict pesticide concentrations UF). Where an additional safety factors a tolerance for residues of fludioxonil of in shallow ground water. For a (SF) is retained due to concerns unique 5.0 ppm (40 CFR 180.516(b)). Currently screening-level assessment for surface to the FQPA, this additional factor is there are no tolerances established for water EPA will use FIRST (a tier 1 applied to the RfD by dividing the RfD residues of fludioxonil in/on livestock. model) before using PRZM/EXAMS (a by such additional factor. The acute or Risk assessments were conducted by tier 2 model). The FIRST model is a chronic Population Adjusted Dose EPA to assess dietary exposures from subset of the PRZM/EXAMS model that (aPAD or cPAD) is a modification of the fludioxonil in food as follows: uses a specific high-end runoff scenario RfD to accommodate this type of FQPA i. Acute exposure. Acute dietary risk for pesticides. FIRST and PRZM/ SF. assessments are performed for a food- EXAMS incorporate an index reservoir For non-dietary risk assessments use pesticide if a toxicological study has environment, and a percent crop area (other than cancer) the UF is used to indicated the possibility of an effect of factor as an adjustment to account for determine the LOC. For example, when concern occurring as a result of a 1–day the maximum percent crop coverage 100 is the appropriate UF (10X to or single exposure. The Dietary within a watershed or drainage basin. account for interspecies differences and Exposure Evaluation Model (DEEMTM) None of these models include 10X for intraspecies differences) the analysis evaluated the individual food consideration of the impact processing LOC is 100. To estimate risk, a ratio of consumption as reported by (mixing, dilution, or treatment) of raw
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water for distribution as drinking water certain diseases of turfgrass and certain procedures for cumulating effects from would likely have on the removal of foliar, stem and root diseases in substances found to have a common pesticides from the source water. The ornamentals in residential and mechanism on EPA’s website at http:// primary use of these models by the commercial landscapes. The risk www.epa.gov/pesticides/cumulative/. Agency at this stage is to provide a assessment was conducted using the D. Safety Factor for Infants and screen for sorting out pesticides for following residential exposure which it is unlikely that drinking water assumptions: Short- and intermediate- Children concentrations would exceed human term dermal exposures (adults and 1. In general. Section 408 of the health levels of concern. toddlers), and short- and intermediate- FFDCA provides that EPA shall apply Since the models used are considered term incidental ingestion exposures an additional tenfold margin of safety to be screening tools in the risk (toddlers). for infants and children in the case of assessment process, the Agency does Fludioxonil is registered for uses on threshold effects to account for prenatal not use estimated environmental residential lawns and ornamentals; and postnatal toxicity and the concentrations (EECs) from these however, it is restricted to professional completeness of the data base on models to quantify drinking water applicators only. As such, no residential toxicity and exposure unless EPA exposure and risk as a %RfD or %PAD. handler (i.e., applicator) exposures are determines that a different margin of Instead drinking water levels of anticipated. safety will be safe for infants and comparison (DWLOCs) are calculated EPA did not select short- or children. Margins of safety are and used as a point of comparison intermediate-term dermal endpoints; incorporated into EPA risk assessments against the model estimates of a subsequently, no residential post- either directly through use of a MOE pesticide’s concentration in water. application dermal assessment is analysis or through using uncertainty DWLOCs are theoretical upper limits on included. Additionally, due to the low (safety) factors in calculating a dose a pesticide’s concentration in drinking vapor pressure of fludioxonil, no level that poses no appreciable risk to water in light of total aggregate exposure significant post-application inhalation humans. to a pesticide in food, and from exposure is anticipated. As a result, 2. Prenatal and postnatal sensitivity. residential uses. Since DWLOCs address there are no significant post-application The developmental and reproductive total aggregate exposure to fludioxonil exposures anticipated from treated toxicity data did not indicate increased they are further discussed in the landscape ornamentals. Therefore, the quantitative or qualitative susceptibility aggregate risk sections E. residential component of this of rats or rabbits to in utero and/or There are no ground or surface water assessment only includes a post- postnatal exposure. monitoring data available for application assessment for toddler 3. Conclusion. There is a complete fludioxonil. Tier I models, FIRST and incidental ingestion exposures related to toxicity data base for fludioxonil and SCI-GROW, were used to derive the residential lawn applications. exposure data are complete or are surface water and ground water EECs, 4. Cumulative exposure to substances estimated based on data that reasonably respectively. According to the proposed with a common mechanism of toxicity. accounts for potential exposures. EPA label information, the maximum Section 408(b)(2)(D)(v) of the FFDCA determined that the 10X SF to protect application rate for fludioxonil is 4 lbs requires that, when considering whether infants and children should be reduced active ingredient (ai)/Acre/year on turf to establish, modify, or revoke a to 1X because: (maximum single application rate of tolerance, the Agency consider • The toxicology data base is 0.675 lbs ai/Acre). Application to turf ‘‘available information’’ concerning the complete. provided the high exposure scenario; cumulative effects of a particular • The developmental and therefore, the drinking water EECs were pesticide’s residues and ‘‘other reproductive toxicity data did not derived from the use on turf. substances that have a common indicate increased quantitative or Ground water. SCI-GROW provides a mechanism of toxicity.’’ qualitative susceptibility of rats or ground water screening exposure value EPA does not have, at this time, rabbits to in utero and/or postnatal for use in determining the potential risk available data to determine whether exposure. to human health from drinking ground fludioxonil has a common mechanism • A developmental neurotoxicity water contaminated with pesticides. of toxicity with other substances. Unlike study is not required because there was The ground water modeling generated a other pesticides for which EPA has no evidence of neurotoxicity in the ground water EEC of 0.11 parts per followed a cumulative risk approach current toxicity data base. billion (ppb) for fludioxonil. based on a common mechanism of • The exposure assessment approach Surface water. The predicted index toxicity, EPA has not made a common will not underestimate the potential reservoir concentrations for total mechanism of toxicity finding as to dietary (food and water) and non-dietary residues using FIRST for the proposed fludioxonil and any other substances exposures for infants and children use of fludioxonil generated acute and and fludioxonil does not appear to resulting from the use of fludioxonil. chronic surface water EECs of 132 ppb produce a toxic metabolite produced by E. Aggregate Risks and Determination of and 49 ppb, respectively. other substances. For the purposes of 3. From non-dietary exposure. The this tolerance action, therefore, EPA has Safety term ‘‘residential exposure’’ is used in not assumed that fludioxonil has a To estimate total aggregate exposure this document to refer to non- common mechanism of toxicity with to a pesticide from food, drinking water, occupational, non-dietary exposure other substances. For information and residential uses, the Agency (e.g., for lawn and garden pest control, regarding EPA’s efforts to determine calculates DWLOCs which are used as a indoor pest control, termiticides, and which chemicals have a common point of comparison against the model flea and tick control on pets). mechanism of toxicity and to evaluate estimates of a pesticide’s concentration Fludioxonil is currently registered for the cumulative effects of such in water EECs. DWLOC values are not use on the following residential non- chemicals, see the policy statements regulatory standards for drinking water. dietary sites: Based on the registered released by EPA’s Office of Pesticide DWLOCs are theoretical upper limits on labels, fludioxonil can be used as a Programs concerning common a pesticide’s concentration in drinking protectant fungicide for control of mechanism determinations and water in light of total aggregate exposure
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to a pesticide in food and residential taken into account in more refined change. If new uses are added in the uses. In calculating a DWLOC, the screening-level and quantitative future, OPP will reassess the potential Agency determines how much of the drinking water exposure assessments. impacts of residues of the pesticide in acceptable exposure (i.e., the PAD) is Different populations will have different drinking water as a part of the aggregate available for exposure through drinking DWLOCs. Generally, a DWLOC is risk assessment process. water (e.g., allowable chronic water calculated for each type of risk 1. Acute risk. Using the exposure exposure milligram/kilogram (mg/kg/ assessment used: Acute, short-term, assumptions discussed in this unit for day) = cPAD - (average food + intermediate-term, chronic, and cancer. acute exposure, the acute dietary residential exposure)). This allowable When EECs for surface water and exposure from food to fludioxonil will exposure through drinking water is used ground water are less than the occupy 1% of the aPAD for females 13- to calculate a DWLOC. calculated DWLOCs, OPP concludes 49 years old. Fludioxonil is not A DWLOC will vary depending on the with reasonable certainty that exposures expected to pose an acute dietary risk toxic endpoint, drinking water to the pesticide in drinking water (when for the general population (including consumption, and body weights. Default considered along with other sources of children and infants). In addition, there body weights and consumption values exposure for which OPP has reliable is potential for acute dietary exposure to as used by the USEPA Office of Water data) would not result in unacceptable fludioxonil in drinking water. After are used to calculate DWLOCs: 2 liter levels of aggregate human health risk at calculating DWLOCs and comparing (L)/70 kg (adult male), 2L/60 kg (adult this time. Because OPP considers the them to the EECs for surface and ground female), and 1L/10 kg (child). Default aggregate risk resulting from multiple water, EPA does not expect the body weights and drinking water exposure pathways associated with a aggregate exposure to exceed 100% of consumption values vary on an pesticide’s uses, levels of comparison in the aPAD for females 13–49 years old, individual basis. This variation will be drinking water may vary as those uses as shown in Table 1 of this unit:
TABLE 1.—AGGREGATE RISK ASSESSMENT FOR ACUTE EXPOSURE TO FLUDIOXONIL
Surface Ground Acute Population Subgroup aPAD (mg/ % aPAD Water EEC Water EEC DWLOC kg) (Food) (ppb) (ppb) (ppb)
Females (13-49 years old) 1.0 1 132 0.11 30,000
2. Chronic risk. Using the exposure cPAD for children 1–2 years old. Based them to the EECs for surface and ground assumptions described in this unit for on the use pattern, chronic residential water, EPA does not expect the chronic exposure, EPA has concluded exposure to residues of fludioxonil is aggregate exposure to exceed 100% of that exposure to fludioxonil from food not expected. In addition, there is the cPAD, as shown in Table 2 of this will utilize 11% of the cPAD for the potential for chronic dietary exposure to unit: U.S. population, 30% of the cPAD for fludioxonil in drinking water. After all infants (<1 year old) and 38% of the calculating DWLOCs and comparing
TABLE 2.—AGGREGATE RISK ASSESSMENT FOR CHRONIC (NON-CANCER) EXPOSURE TO FLUDIOXONIL
Surface Ground Chronic Population Subgroup cPAD mg/ %cPAD Water EEC Water EEC DWLOC kg/day (Food) (ppb) (ppb) (ppb)
U.S. population 0.3 11 49 0.11 940
All infants (<1 year old) 0.3 30 49 0.11 210
Children (1-2 years old) 0.3 38 49 0.11 190
Females (13-49 years old) 0.3 8 49 0.11 830
3. Short-term risk. Short-term Using the exposure assumptions residential uses. In addition, short-term aggregate exposure takes into account described in this unit for short-term DWLOCs were calculated and compared residential exposure plus chronic exposures, EPA has concluded that food to the EECs for chronic exposure of exposure to food and water (considered and residential exposures aggregated fludioxonil in ground and surface water. to be a background exposure level). result in aggregate MOEs of 460 for all After calculating DWLOCs and Fludioxonil is currently registered for infants < 1 year old; 410 for children 1– comparing them to the EECs for surface use that could result in short-term 2 years old; 490 for children 3–5 years and ground water, EPA does not expect residential exposure and the Agency has old. These aggregate MOEs do not short-term aggregate exposure to exceed determined that it is appropriate to exceed the Agency’s level of concern for the Agency’s level of concern, as shown aggregate chronic food and water and aggregate exposure to food and in Table 3 of this unit: short-term exposures for fludioxonil.
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TABLE 3.—AGGREGATE RISK ASSESSMENT FOR SHORT-TERM EXPOSURE TO FLUDIOXONIL
Aggregate Aggregate MOE (Food Level of Surface Ground Short-Term Population Subgroup + Concern Water EEC Water EEC DWLOC Residential) (LOC) (ppb) (ppb) (ppb)
All infants (< 1 year old) 460 100 49 0.11 780
Children (1-2 years old) 410 100 49 0.11 760
Children (3-5 years old) 490 100 49 0.11 800
4. Intermediate-term risk. and water and intermediate-term food and residential uses. In addition, Intermediate-term aggregate exposure exposures for fludioxonil. intermediate-term DWLOCs were takes into account residential exposure Using the exposure assumptions calculated and compared to the EECs for plus chronic exposure to food and water described in this unit for intermediate- chronic exposure of fludioxonil in (considered to be a background term exposures, EPA has concluded that ground and surface water. After exposure level). food and residential exposures calculating DWLOCs and comparing aggregated result in aggregate MOEs of them to the EECs for surface and ground Fludioxonil is currently registered for 200 for all infants <1 year old; 180 for use(s) that could result in intermediate- water, EPA does not expect children 1–2 years old; and 220 for intermediate-term aggregate exposure to term residential exposure and the children 3–5 years old. These aggregate exceed the Agency’s level of concern, as Agency has determined that it is MOEs do not exceed the Agency’s level shown in Table 4 of this unit: appropriate to aggregate chronic food of concern for aggregate exposure to
TABLE 4.—AGGREGATE RISK ASSESSMENT FOR INTERMEDIATE-TERM EXPOSURE TO FLUDIOXONIL
Aggregate Aggregate MOE (Food Level of Surface Ground Short-Term Population Subgroup + Concern Water EEC Water EEC DWLOC Residential) (LOC) (ppb) (ppb) (ppb)
All infants (< 1 year old) 200 100 49 0.11 130
Children (1-2 years old) 180 100 49 0.11 140
Children (3-5 years old) 220 100 49 0.11 180
5. Aggregate cancer risk for U.S. enforce the tolerance expression. The VI. Objections and Hearing Requests population. EPA’s Cancer Peer Review method may be requested from: Chief, Committee (CPRC) classified fludioxonil Analytical Chemistry Branch, Under section 408(g) of the FFDCA, as as a Group D - not classifiable as to Environmental Science Center, 701 amended by the FQPA, any person may human carcinogenicity. Mapes Rd., Ft. Meade, MD 20755–5350; file an objection to any aspect of this 6. Determination of safety. Based on telephone number: (410) 305–2905; e- regulation and may also request a these risk assessments, EPA concludes mail address: [email protected]. hearing on those objections. The EPA that there is a reasonable certainty that procedural regulations which govern the no harm will result to the general B. International Residue Limits submission of objections and requests for hearings appear in 40 CFR part 178. population, and to infants and children Canada, Codex, and Mexico do not Although the procedures in those from aggregate exposure to fludioxonil have maximum residue limits (MRLs) residues. regulations require some modification to for residues of fludioxonil in/on the reflect the amendments made to the IV. Other Considerations subject crops. Therefore, harmonization FFDCA by the FQPA, EPA will continue is not an issue. A. Analytical Enforcement Methodology to use those procedures, with The methods used in the field trial V. Conclusion appropriate adjustments, until the necessary modifications can be made. studies were similar to a method Therefore, the tolerances are validated by the Analytical Chemistry The new section 408(g) of the FFDCA established for residues of fludioxonil, provides essentially the same process Branch. Since adequate method (4-(2,2-difluoro-1,3-benzodioxol-4-yl)- validation and concurrent recoveries for persons to ‘‘object’’ to a regulation 1H-pyrrole-3-carbonitrile) in or on were attained in the field trial studies, for an exemption from the requirement brassica, head and stem, subgroup 5A at EPA concludes that the ACB validated of a tolerance issued by EPA under new 2.0 ppm; brassica, leafy greens, method is appropriate for enforcement section 408(d) of FFDCA, as was of the tolerances associated with this subgroup 5B at 10 ppm; carrot at 0.75 provided in the old sections 408 and petition. No further validation is ppm; herb, fresh, subgroup 19A at 10 409 of the FFDCA. However, the period necessary. ppm; herb, dried, subgroup 19A at 65 for filing objections is now 60 days, Adequate enforcement methodology ppm; longan, lychee, pulasan, rather than 30 days. (high pressure liquid chromatography rambutan, and spanish lime at 1.0 ppm; method AG–597B) is available to and turnip, greens at 10 ppm.
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A. What Do I Need to Do to File an 5697, by e-mail at response to a petition submitted to the Objection or Request a Hearing? [email protected], or by mailing a Agency. The Office of Management and You must file your objection or request for information to Mr. Tompkins Budget (OMB) has exempted these types request a hearing on this regulation in at Registration Division (7505C), Office of actions from review under Executive accordance with the instructions of Pesticide Programs, Environmental Order 12866, entitled Regulatory provided in this unit and in 40 CFR part Protection Agency, 1200 Pennsylvania Planning and Review (58 FR 51735, 178. To ensure proper receipt by EPA, Ave., NW., Washington, DC 20460– October 4, 1993). Because this rule has you must identify docket ID number 0001. been exempted from review under If you would like to request a waiver OPP–2003–0135 in the subject line on Executive Order 12866 due to its lack of of the tolerance objection fees, you must the first page of your submission. All significance, this rule is not subject to mail your request for such a waiver to: requests must be in writing, and must be Executive Order 13211, Actions James Hollins, Information Resources mailed or delivered to the Hearing Clerk Concerning Regulations That and Services Division (7502C), Office of Significantly Affect Energy Supply, on or before September 2, 2003. Pesticide Programs, Environmental 1. Filing the request. Your objection Distribution, or Use (66 FR 28355, May Protection Agency, 1200 Pennsylvania must specify the specific provisions in 22, 2001). This final rule does not Ave., NW., Washington, DC 20460– the regulation that you object to, and the contain any information collections 0001. subject to OMB approval under the grounds for the objections (40 CFR 3. Copies for the Docket. In addition Paperwork Reduction Act (PRA), 44 178.25). If a hearing is requested, the to filing an objection or hearing request U.S.C. 3501 et seq., or impose any objections must include a statement of with the Hearing Clerk as described in enforceable duty or contain any the factual issues(s) on which a hearing Unit VI.A., you should also send a copy unfunded mandate as described under is requested, the requestor’s contentions of your request to the PIRIB for its on such issues, and a summary of any inclusion in the official record that is Title II of the Unfunded Mandates evidence relied upon by the objector (40 described in Unit I.B.1. Mail your Reform Act of 1995 (UMRA) (Public CFR 178.27). Information submitted in copies, identified by docket ID number Law 104–4). Nor does it require any connection with an objection or hearing OPP–2003–0135, to: Public Information special considerations under Executive request may be claimed confidential by and Records Integrity Branch, Order 12898, entitled Federal Actions to marking any part or all of that Information Resources and Services Address Environmental Justice in information as CBI. Information so Division (7502C), Office of Pesticide Minority Populations and Low-Income marked will not be disclosed except in Programs, Environmental Protection Populations (59 FR 7629, February 16, accordance with procedures set forth in Agency, 1200 Pennsylvania Ave., NW., 1994); or OMB review or any Agency 40 CFR part 2. A copy of the Washington, DC 20460–0001. In person action under Executive Order 13045, information that does not contain CBI or by courier, bring a copy to the entitled Protection of Children from must be submitted for inclusion in the location of the PIRIB described in Unit Environmental Health Risks and Safety public record. Information not marked I.B.1. You may also send an electronic Risks (62 FR 19885, April 23, 1997). confidential may be disclosed publicly copy of your request via e-mail to: opp- This action does not involve any by EPA without prior notice. [email protected]. Please use an ASCII technical standards that would require Mail your written request to: Office of file format and avoid the use of special Agency consideration of voluntary the Hearing Clerk (1900C), characters and any form of encryption. consensus standards pursuant to section Environmental Protection Agency, 1200 Copies of electronic objections and 12(d) of the National Technology Pennsylvania Ave., NW., Washington, hearing requests will also be accepted Transfer and Advancement Act of 1995 DC 20460–0001. You may also deliver on disks in WordPerfect 6.1/8.0 or (NTTAA), Public Law 104–113, section your request to the Office of the Hearing ASCII file format. Do not include any 12(d) (15 U.S.C. 272 note). Since Clerk in Rm. 104, Crystal Mall #2, 1921 CBI in your electronic copy. You may tolerances and exemptions that are Jefferson Davis Hwy., Arlington, VA. also submit an electronic copy of your established on the basis of a petition The Office of the Hearing Clerk is open request at many Federal Depository under section 408(d) of the FFDCA, from 8 a.m. to 4 p.m., Monday through Libraries. such as the tolerance in this final rule, Friday, excluding legal holidays. The do not require the issuance of a telephone number for the Office of the B. When Will the Agency Grant a proposed rule, the requirements of the Hearing Clerk is (703) 603–0061. Request for a Hearing? Regulatory Flexibility Act (RFA) (5 2. Tolerance fee payment. If you file A request for a hearing will be granted U.S.C. 601 et seq.) do not apply. In an objection or request a hearing, you if the Administrator determines that the addition, the Agency has determined must also pay the fee prescribed by 40 material submitted shows the following: that this action will not have a CFR 180.33(i) or request a waiver of that There is a genuine and substantial issue substantial direct effect on States, on the fee pursuant to 40 CFR 180.33(m). You of fact; there is a reasonable possibility relationship between the national must mail the fee to: EPA Headquarters that available evidence identified by the government and the States, or on the Accounting Operations Branch, Office requestor would, if established resolve distribution of power and of Pesticide Programs, P.O. Box one or more of such issues in favor of responsibilities among the various 360277M, Pittsburgh, PA 15251. Please the requestor, taking into account levels of government, as specified in identify the fee submission by labeling uncontested claims or facts to the Executive Order 13132, entitled it ‘‘Tolerance Petition Fees.’’ contrary; and resolution of the factual Federalism(64 FR 43255, August 10, EPA is authorized to waive any fee issues(s) in the manner sought by the 1999). Executive Order 13132 requires requirement ‘‘when in the judgement of requestor would be adequate to justify EPA to develop an accountable process the Administrator such a waiver or the action requested (40 CFR 178.32). to ensure ‘‘meaningful and timely input refund is equitable and not contrary to by State and local officials in the the purpose of this subsection.’’ For VII. Statutory and Executive Order development of regulatory policies that additional information regarding the Reviews have federalism implications.’’ ‘‘Policies waiver of these fees, you may contact This final rule establishes a tolerance that have federalism implications’’ is James Tompkins by phone at (703) 305– under section 408(d) of the FFDCA in defined in the Executive Order to
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include regulations that have Government and the Indian tribes, or on rule is not a ‘‘major rule’’ as defined by ‘‘substantial direct effects on the States, the distribution of power and 5 U.S.C. 804(2). on the relationship between the national responsibilities between the Federal List of Subjects in 40 CFR Part 180 government and the States, or on the Government and Indian tribes.’’ This distribution of power and rule will not have substantial direct Environmental protection, responsibilities among the various effects on tribal governments, on the Administrative practice and procedure, levels of government.’’ This final rule relationship between the Federal Agricultural commodities, Pesticides directly regulates growers, food Government and Indian tribes, or on the and pests, Reporting and recordkeeping processors, food handlers and food distribution of power and requirements. retailers, not States. This action does not responsibilities between the Federal Dated: June 25, 2003. alter the relationships or distribution of Government and Indian tribes, as Debra Edwards, power and responsibilities established specified in Executive Order 13175. Director, Registration Division, Office of by Congress in the preemption Thus, Executive Order 13175 does not Pesticide Programs. provisions of section 408(n)(4) of the apply to this rule. ■ Therefore, 40 CFR chapter I is FFDCA. For these same reasons, the VIII. Congressional Review Act amended as follows: Agency has determined that this rule does not have any ‘‘tribal implications’’ The Congressional Review Act, 5 PART 180—[AMENDED] as described in Executive Order 13175, U.S.C. 801 et seq., as added by the Small entitled Consultation and Coordination Business Regulatory Enforcement ■ 1. The authority citation for part 180 with Indian Tribal Governments (65 FR Fairness Act of 1996, generally provides continues to read as follows: 67249, November 6, 2000). Executive that before a rule may take effect, the Authority: 21 U.S.C. 321(q), 346(a) and Order 13175, requires EPA to develop agency promulgating the rule must 371. an accountable process to ensure submit a rule report, which includes a ■ 2. Section 180.516 is amended by ‘‘meaningful and timely input by tribal copy of the rule, to each House of the removing the entry for ‘‘Vegetable, officials in the development of Congress and to the Comptroller General brassica, leafy, group’’ and by regulatory policies that have tribal of the United States. EPA will submit a alphabetically adding the following implications.’’ ‘‘Policies that have tribal report containing this rule and other commodities to the table in paragraph (a) implications’’ is defined in the required information to the U.S. Senate, to read as follows: Executive Order to include regulations the U.S. House of Representatives, and that have ‘‘substantial direct effects on the Comptroller General of the United § 180.516 Fludioxonil; tolerances for one or more Indian tribes, on the States prior to publication of this final residues. relationship between the Federal rule in the Federal Register. This final (a) * * *
Commodity Parts per million
Brassica, head and stem, subgroup 5A ...... 2.0 Brassica, leafy greens, subgroup 5B ...... 10 ***** Carrot ...... 0.75 ***** Herb, dried, subgroup 19A ...... 65 Herb, fresh, subgroup 19A ...... 10 ***** Longan ...... 1.0 Lychee ...... 1.0 ***** Pulasan ...... 1.0 ***** Rambutan ...... 1.0 ***** Spanish lime ...... 1.0 ***** Turnip, greens ...... 10 *****
* * * * * DEPARTMENT OF THE INTERIOR SUMMARY: This document corrects the [FR Doc. 03–16931 Filed 7–2–03; 8:45 am] final rule that was published on Office of the Secretary Thursday, April 3, 2003. This final rule BILLING CODE 6560–50–S outlines procedures for assessing civil 43 CFR Part 10 penalties on museums that fail to comply with applicable provisions of RIN 1024–AC84 the Native American Graves Protection and Repatriation Act of 1990 (‘‘the Act’’ Native American Graves Protection or ‘‘NAGPRA’’). and Repatriation Act Regulations— Civil Penalties; Correction EFFECTIVE DATE: May 5, 2003.
AGENCY: Department of the Interior. FOR FURTHER INFORMATION CONTACT: Mr. John Robbins, Assistant Director, ACTION: Final rules correction. Cultural Resources, National Park
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Service, 1849 C Street NW., (2253), Dated: June 16, 2003. on December 11, 2002, providing for a Washington, DC 20240, telephone (202) Craig Manson, 30 day comment period. There were no 354–2269. Assistant Secretary for Fish and Wildlife and comments received regarding the SUPPLEMENTARY INFORMATION: Parks. proposed rule. [FR Doc. 03–16802 Filed 7–2–03; 8:45 am] Background II. Final Action BILLING CODE 4312–50–P On November 16, 1990, President George Bush signed the Act into law. This final rule will amend the Department of the Treasury Acquisition The Act addresses the rights of lineal DEPARTMENT OF THE TREASURY descendants, Indian tribes, and Native Regulation system. It uses plain English, Hawaiian organizations to Native 48 CFR Chapter 10 eliminates internal operating procedures American human remains, funerary that do not have significant effect RIN 1505–AA89 objects, sacred objects, and cultural beyond Treasury, establishes the patrimony with which they are Department of the Treasury Treasury Mentor-Prote´ge´ Program, and affiliated. Section 9 of the Act Acquisition Regulation eliminates coverage that is obsolete or authorizes the Secretary of the Interior duplicates the FAR. (‘‘the Secretary’’) to assess a civil AGENCY: Office of the Procurement penalty against any museum that fails to Executive, Department of the Treasury. III. Statutory and Executive Order comply with the requirements of the Act ACTION: Final rule. Reviews [25 U.S.C. 3007]. Such penalties must be SUMMARY: The Department of the A. Executive Order 12866 assessed according to procedures Treasury (‘‘Treasury’’) is amending the This final rule is not a significant established by the Secretary through Department of the Treasury Acquisition regulation. An interim rule establishing regulatory action for the purposes of Regulation (DTAR) in its entirety. civil penalty procedures was published Executive Order 12866 as supplemented Treasury has rewritten the DTAR into in the Federal Register on January 13, plain English. The DTAR includes both by Executive Order 13132, and is not a 1997 (62 FR 1820), and went into effect policy direction and regulatory major rule under 5 U.S.C. 804; therefore on February 12, 1997. A final rule guidance. Only regulatory guidance is no review is required by the Office of establishing civil penalty procedures being published. Treasury has also Information and Regulatory Affairs was published in the Federal Register updated the DTAR to reflect changes to within the Office of Management and on April 3, 2003 (68 FR 16354), and the Federal Acquisition Regulation Budget (OMB). went into effect on May 5, 2003. As published, the final rule contains an (FAR) and to establish and encourage B. Executive Order 12988 error that needs to be corrected. participation in the Treasury Mentor- Need for Correction: The correction Prote´ge´ Program. With respect to the review of existing clarifies the amendatory instruction to DATE: August 4, 2003. regulations and the promulgation of make it clear that the final rule FOR FURTHER INFORMATION CONTACT: new regulations, section 3(a) of published in the Federal Register on Kevin Whitfield, Department of the Executive Order 12988, Treasury has April 3, 2003 (68 FR 16354) replaces the Treasury, Office of the Procurement completed the required review and interim rule published in the Federal Executive, 1500 Pennsylvania Ave., determined that this final rule meets the Register on January 13, 1997 (62 FR NW., c/o 1310 G St., NW., Suite 400W, relevant standards of Executive Order 1820). Washington, DC 20220. (202) 622–0248. 12988 as supplemented by Executive SUPPLEMENTARY INFORMATION: List of Subjects in 43 CFR Part 10 Order 13132. I. Background Administrative practices and II. Final Action C. Regulatory Flexibility Act procedure, Hawaiian Natives, Historic III. Statutory and Executive Order Reviews This final regulation does not have a preservation, Indians—Claims, A. Executive Order 12866 Museums, Reporting and record-keeping B. Executive Order 12988 significant economic impact on a requirements. C. Regulatory Flexibility Act substantial number of small entities ■ Accordingly, the final rule amending D. Paperwork Reduction Act within the meaning of the Regulatory title 43 CFR part 10 published April 3, E. National Environmental Policy Act Flexibility Act, 5 U.S.C. 601, and et seq. F. Executive Order 13132 2003 (68 FR 16354) is corrected as The analysis requirement of the Act G. Unfunded Mandates Reform Act of 1995 does not apply if the agency certifies follows: H. Treasury and General Government Appropriation Act, 1999 that the rule, if promulgated, will not PART 10—NATIVE AMERICAN have a significant impact on a GRAVES PROTECTION AND I. Background substantial number of small entities. REPATRIATION ACT REGULATIONS This final rule amends the The Mentor-Prote´ge´ Program does apply The authority citation for Part 10 Department of the Treasury Acquisition to large business and small business continues to read as follows: Regulation (DTAR). The DTAR, as firms that receive a form of incentive for reissued, uses plain English to improve assuming the role of mentor to small Authority: 25 U.S.C. 3001 et seq. clarity and understanding; eliminates businesses, other small disadvantaged In FR Doc. 03–7947 published on internal operating procedures that do businesses, qualified HUBZone small April 3, 2003, (68 FR 16354), make the not have a significant effect beyond businesses, small businesses owned and following technical correction: On page Treasury; establishes the Treasury controlled by service disabled veterans, 16360, in the second column, the Mentor-Prote´ge´ Program and, eliminates and small women-owned businesses. It amendatory instruction below the coverage that is obsolete or duplicates is expected that the protee´gee´ entities authority citation indicates that Part 10 the FAR. The DTAR is intended to be is amended by ‘‘adding’’ § 10.12. The would directly benefit from the forms of simple for contractors, offerors, and mentoring provided for in this rule. sentence is amended to read ‘‘Part 10 is Treasury contracting personnel to use. amended by revising § 10.12 as A proposed rule was published in the The other revisions do not add any follows:’’. Federal Register (67 FR 76150–67156) new requirements, but restate existing
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requirements in plain English and List of Subjects in 48 CFR Chapter 10 adequate, there will be no provide consistency with the FAR. Government acquisition. corresponding DTAR coverage. D. Paperwork Reduction Act Corey M. Rindner, 1001.104 Applicability This reissued DTAR contains Director, Office of the Procurement Executive. The FAR and DTAR apply to all information collection requirements ■ Accordingly, the Department of the acquisitions of supplies and services, subject to the Paperwork Reduction Act Treasury revises 48 CFR Chapter 10, to which obligate appropriated funds. For (44 U.S.C. 3501, et seq.) that were read as follows: acquisitions made from non- approved previously by OMB and CHAPTER 10—DEPARTMENT OF THE appropriated funds, the Senior assigned the contract numbers shown in TREASURY Procurement Executive will determine the rules and procedures that will DTAR Section 1001.106. Subchapter A—General apply. The DTAR does not apply to the E. National Environmental Policy Act Part acquisitions of the U.S. Mint. 1001 Department of the Treasury This final rule does not individually Acquisition Regulation (DTAR) System 1001.105 Issuance. or cumulatively have a significant 1002 Definitions of Words and Terms impact on the human environment, as 1003 Improper Business Practices and 1001.105–1 Publication and code determined by Treasury’s regulations Personal Conflicts of Interest arrangement. 1004 Administrative Matters (10 CFR part 1021, subpart D) The DTAR and its subsequent changes implementing the National Subchapter B—Competition and Acquisition Planning will be published in the Federal Environmental Policy Act (NEPA) of Register and codified in the Code of 1969 (42 U.S.C. 4321 et seq.). Therefore, 1005 Publicizing Contract Actions 1011 Describing Agency Needs Federal Regulations (CFR). The DTAR no environmental impact statement or will be issued as 48 CFR Chapter 10. environmental assessment is required Subchapter D—Socioeconomic Programs pursuant to NEPA. 1019 Small Business Programs 1001.105–2 Arrangement of regulations. Subchapter E—General Contracting F. Executive Order 13132 (a) References and citations. The Requirements DTAR is divided into the same parts, Executive Order 13132 requires when 1028 Bonds and Insurance subparts, sections, subsections, and formulating and implementing 1033 Protests, Disputes, and Appeals paragraphs as the FAR except that 10 or regulations, legislation, and any other Subchapter H—Clauses and Forms 100 will precede the DTAR citation so policy actions that have federalism 1052 Solicitation Provisions and Contract that there are four numbers to the left implications, that agencies must follow Clauses of the first decimal. Reference to DTAR prescribed principles and criteria. Subchapter A—General material must be made in a manner Treasury has determined that this final similar to that prescribed by FAR 1.105– rule does not contain federalism PART 1001—DEPARTMENT OF THE 2(c). TREASURY ACQUISITION implications and would not preempt 1001.105–3 Copies. State laws. REGULATORY (DTAR) SYSTEM Copies of the DTAR in Federal G. Unfunded Mandates Reform Act of Subpart 1001.1—Purpose, Authority, Register or CFR form may be purchased 1995 Issuance from the Superintendent of Documents, The Unfunded Mandates Reform Act Sec. Government Printing Office (GPO), of 1995 (Pub. L. 104–4) generally 1001.101 Purpose. Washington, DC 20402. 1001.104 Applicability. requires a Federal agency to perform a 1001.106 OMB Approval under the 1001.105 Issuance. detailed assessment of costs and Paperwork Reduction Act. 1001.105–1 Publication and code benefits of any rule imposing a federal arrangement. OMB has assigned the following mandate with costs to State, local or 1001.105–2 Arrangement of regulations. tribal governments, or to the private control numbers that must appear on 1001.105–3 Copies. the upper right-hand corner of the face sector of $100 million or more. This 1001.106 OMB Approval under the page of each solicitation, contract, final rule would only affect private Paperwork Reduction Act. modification and order: OMB Control sector entities and the impact is less Authority: 41 U.S.C. 418b (a) and (b). No. 1505–0081 (Offeror submissions), than $100 million. Subpart 1001.1—Purpose, Authority, OMB Control No. 1505–0080 H. Treasury and General Government Issuance (Contractor submissions), and OMB Appropriations Act, 1999 Control No. 1505–0107 (Protests). OMB 1001.101 Purpose. regulations and OMB’s approval and Section 654 of the Treasury and This subpart establishes Chapter 10, assignment of control numbers are General Government Appropriation, the Department of the Treasury conditioned upon Treasury bureaus not 1999 (Pub. L. 105–277) requires Federal Acquisition Regulation (DTAR), within requiring more than three copies agencies to issue a Family Policymaking Title 48 of the Federal Acquisition (including the original) of any document Assessment for any proposed rule that Regulation (FAR) System. The DTAR of information. OMB has granted a may affect family well being. This final contains policies and procedures that waiver to permit the Department to rule does not have any impact on the supplement FAR coverage and directly require up to eight copies of proposal autonomy or integrity of the family as affect the contractual relationship packages, including proprietary data, for an institution. Accordingly, Treasury between the Department of the Treasury solicitations, provided that contractors concluded that it is not necessary to and its business partners (e.g., who submit only an original and two prepare a Family Policymaking prospective offerors/bidders and copies will not be placed at a Assessment. contractors). When FAR coverage is disadvantage.
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PART 1002—DEFINITIONS OF WORDS Subchapter B—Competition and Subchapter D—Socioeconomic AND TERMS Acquisition Planning Programs Subpart 1002.1—Definitions. PART 1005—PUBLICIZING CONTRACT PART 1019—SMALL BUSINESS Sec. ACTIONS PROGRAMS 1002.101 Definitions. Subpart 1005.2—Synopses of Proposed Subpart 1019.2—Policies Authority: 41 U.S.C. 418b (a) and (b). Contract Actions Sec. Sec. 1019.202 Specific policies. Subpart 1002.1—Definitions. 1005.202 Definitions. 1019.202—70 The Treasury Mentor-Prote´ge´ Program 1002.101 Definitions. Authority: 41 U.S.C. 418(b) (a) and (b). 1019.202—70–3 Non-affiliation. 1019.202—70–4 General policy. Bureau Chief Procurement Officer Subpart 1005.2—Synopses of 1019.202—70–5 Incentives for prime (BCPO) means the senior acquisition Proposed Contract Actions contractor participation. person at each bureau’s headquarters. 1019.202—70–7 Mentor firms. 105.202 Exceptions. Within the Internal Revenue Service, 1019.202—70–8 Prote´ge´ firms. this may be the Director, Procurement or (b)(1) The Office of Federal 1019.202—70–9 Selection of Prote´ge´ firms. the Deputy Director, Procurement. Procurement Policy and the Small 1019.202—70–10 Application process for Business Administration have extended mentor firms to participate in the Legal counsel means the Treasury or the Pilot Program on Acquisition of program. bureau office providing legal services to Services from Small Businesses. It 1019.202—70–11 OSBD review and the contracting activity. approval process of agreement. allows for a waiver of the synopsis 1019.202—70–12 Agreement contents. Senior Procurement Executive (SPE) requirement for services from 1019.202—70–13 Developmental for the Department of the Treasury is the competitive small businesses between assistance. Director, Office of the Procurement $25,000 and $100,000. Contracting 1019.202—70–14 Obligation. Executive. officers may waive the synopsis 1019.202—70–16 Solicitation provisions requirement after determining the and contract clauses. PART 1003—IMPROPER BUSINESS following: Subpart 1019.7—The Small Business PRACTICES AND PERSONAL (1) Acquisitions covered by the Subcontracting Program CONFLICTS OF INTEREST waiver are for services (excluding those 1019.708 Contract clauses. exempted from set-asides under the 1019.708–70 Solicitation provisions and Subpart 1003.9—Whistleblower Small Business Competitiveness contract clauses. Demonstration Program) in amounts Protections for Contractor Employees Subpart 1019.8—Contracting With the Small over $25,000, but not exceeding the Business Adminstration (The 8(a) Program) 1003.901 Definitions. simplified acquisition threshold ($100,000), of which supply items are 1019.811 Preparing the contracts. 1019.811–3 Contract clauses. Authority: 41 U.S.C. 418b (a) and (b). expected to constitute less than 20 Authority: 41 U.S.C. 418b (a) and (b). Subpart 1003.9—Whistleblower percent of the value of the contract; (ii) The covered acquisitions will be Protections for Contractor Employees set-aside for small businesses; Subpart 1019.2—Policies 1003.901 Definitions. (iii) Quotes or offers for covered 1019.202 Specific policies. acquisitions will be solicited and Authorized official of an agency obtained from a minimum of five small 1019.202–70 The Treasury Mentor-Prote´ge´ means Treasury’s SPE. business concerns; Program. (iv) The Procurement Marketing and 1019.202 Non-affiliation. PART 1004—ADMINISTRATIVE Access Network (PRO-Net) will be used For purposes of the Small Business MATTERS to identify and solicit bids from a Act, a prote´ge´ firm may not be minimum of five small businesses; and Subpart 1004.4—Safeguarding Classified (v) If practicable, two sources not considered an affiliate of a mentor firm Information Within Industry ´ ´ included in the previous solicitation for solely on the basis that the protege firm Sec. the same services will be solicited. is receiving developmental assistance 1004.470 Investigative Requirement for referred to in DTAR 1019.202–70–13 Contractors. PART 1011—DESCRIBING AGENCY from such mentor firm under the 1004.470—1 General. NEEDS Program. Authority: 41 U.S.C. 418b (a) and (b). Subpart 1011.1—Selecting and Developing 1019.202–70–4 General policy. Requirements Documents (a) Eligible prime contractors, not Subpart 1004.4—Safeguarding Sec. included on the ‘‘List of Parties Classified Information Within Industry 1011.103 Market acceptance. Excluded from Federal Procurement and 1004.470 Investigative Requirements for Authority: 41 U.S.C. 418b (a) and (b). Nonprocurement Programs’’, that are Contractors. approved as mentors will enter into Subpart 1011.1—Selecting and agreements with eligible prote´ge´s. 1004.470—1 General. Developing Requirements Documents Mentors provide appropriate developmental assistance to enhance Contract employees not requiring 1011.103 Market Acceptance. the capabilities of prote´ge´s to perform as access to classified information must (a) BCPOs can act on behalf of the contractors or subcontractors. meet the investigative requirements of head of the agency in this subpart only. (b) A firm’s status as a prote´ge´ under Chapter II, Section 2 of TD P 71–10, BCPOs, under appropriate a Treasury contract must not have an Department of the Treasury—Security circumstances, require offerors to make effect on the firm’s eligibility to seek Manual. the required demonstrations. other contracts or subcontracts.
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1019.202–70–5 Incentives for prime controlled by service disabled veterans, 1019.202–70–11 OSBD review and contractor participation. or qualified HUBZone small business: approval process of agreement. (a) Under the Small Business Act, 15 (2) ‘‘Small’’ in the NAICS for the (a) OSBD will review the information U.S.C. 637(d)(4)(E), Treasury is services or supplies to be provided by specified in DTAR 1019.202–70–12. The authorized to provide appropriate the prote´ge´ under its subcontract to the OSBD review will be completed no later incentives to encourage subcontracting mentor; and than 30 calendar days after receipt. opportunities consistent with the (b) Upon completion of the review, (3) Eligible for receipt of Government efficient and economical performance of the mentor may implement the contracts. the contract. Proposed mentor-prote´ge´ developmental assistance program. efforts will be considered during the (b) Except for small disadvantaged (c) An approved agreement will be evaluation of such negotiated, business, or qualified HUBZone small incorporated into the mentor firm’s competitive offers. Contracting officers business firms, a prote´ge´ firm may self- contract(s) with Treasury. must provide, as an incentive, a bonus certify to a mentor firm that it meets the (d) If the OSBD disapprove the score, not to exceed 5% of the relative requirements set forth if paragraph (a) of agreement, the mentor may provide importance assigned to the technical/ this section. Mentors may rely in good additional information for management factors. faith on written representations by reconsideration. Upon finding (b) A mentor’s performance will be potential prote´ge´ that they meet the deficiencies that the OSBD considers evaluated against the criteria described specified eligibility requirements. The correctable, the OSBD will notify the in DTAR 1052.219–75. small disadvantaged business and mentor and provide a list of defects. (c) Before awarding a contract that HUBZone status eligibility and Any additional information or requires a subcontracting plan, the documentation requirements are corrections requested will be provided existence of a mentor-prote´ge´ determined according to FAR 19.304 within 30 calendar days. The review of arrangement, and performance (if any) and FAR 19.1303, respectively. any supplemental material will be under an existing arrangement, must be (c) Prote´ge´s may not have multiple completed within 30 days after receipt considered by the contracting officer in: mentors unless approved, in writing, by by the OSBD. When submission of (1) Evaluating the quality of a the Director, Office of Small Business additional data is required during a proposed subcontracting plan under Development (OSBD). Prote´ge´s proposal evaluation for a new contract FAR 19.705–4; and participating in other agency mentor- award, shorter timeframes for (2) Evaluating the contractor prote´ge´ programs in addition to the submission, review and re-evaluation compliance with the subcontracting Treasury Program should maintain a for approval may be authorized by the plans submitted in previous contracts as system for preparing separate reports of OSBD. a factor in determining contractor mentoring activity for each agency’s (e) The agreement defines the responsibility under FAR 19.705– program. relationship between the mentor and 5(a)(1). prote´ge´ firms only. The agreement itself (d) Mentor-prote´ge´ arrangements may 1019.708–70–9 Selection of prote´ge´ firms. does not create any privity of contract provide the government with greater (a) Mentor firms will be solely between the mentor or prote´ge´ and assurance that a prote´ge´ subcontractor responsible for selecting prote´ge´ firms. Treasury. will be able to perform under the The mentor is encouraged to identify 1019.202–70–12 Agreement contents. contract. and select the types of prote´ge´ firms (e) The Office of Small Business listed in 1019.202–70–7. Mentor firms The contents of the agreement will Development (OSBD) Mentoring Award may have multiple prote´ge´s. contain: is a non-monetary award that will be (a) Names and addresses of mentor (b) The selection of prote´ge´ firms by and prote´ge´ firms and a point of contact presented (annually or as often a mentor firms may not be protested. Any appropriate) to the mentoring firm within both firms who will oversee the protest regarding the size or eligibility agreement; providing the most effective status of an entity selected by a mentor developmental support of a prote´ge´. The (b) Procedures for the mentor firm to to be a prote´ge´ must be referred solely notify the prote´ge´ firm, OSBD and the Mentor-Prote´ge´ Program Manager will to Treasury’s OSBD for resolution. recommend an award winner to the contracting officer, in writing, at least 30 Treasury, at its discretion, may seek an days in advance of the mentor firm’s Director, Office of Small Business advisory opinion from the Small Development. intent to voluntarily withdraw from the Business Administration (SBA). program; 1019.219–70–7 Mentor firms. 1019.202–70–10 Application process for (c) Procedures for a prote´ge´ firm to A mentor firm may be either a large mentor firms to participate in the program. notify the mentor firm in writing at least or small business, eligible for award of 30 days in advance of the prote´ge´ firm’s (a) Firm interested in becoming a a Government contract that can provide intent to voluntarily terminate the mentor firm may apply in writing to developmental assistance to enhance mentor-prote´ge´ agreement. The mentor Treasury’s OSBD. The application will the capabilities of prote´ge´s to perform as must notify the OSBD and the be evaluated based upon the description subcontractors. Mentors will be contracting officer immediately upon of the nature and extent of technical and encouraged to enter into arrangements receipt of such notice from the prote´ge´; managerial support proposed as well as with prote´ge´s in addition to firms with (d) Each proposed mentor-prote´ge´ the extent of other developmental whom they have established business relationship must include information assistance in the form of equity relationships. on the mentor’s ability to provide investment, loans, joint-venture developmental assistance to the prote´ge´ 1019.202–70–8 Prote´ge´ firms. support, and traditional subcontracting and how that assistance will potentially (a) For selection as a prote´ge´, a firm support. increase contracting and subcontracting must be: (b) A proposed mentor will submit the opportunities for the prote´ge´ firm; (1) A small business, women-owned information listed in DTAR 1019.202– (e) A description of the type of small business, small disadvantaged 70–12 for inclusion in a mentor-prote´ge´ developmental Program that will be business, small business owned and agreement. provided by the mentor firm to the
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prote´ge´ firm, to include a description of Program resulted in the prote´ge´ Subchapter E—General Contracting the potential subcontract work, and a receiving contract(s) and subcontract(s) Requirements schedule for providing assistance and from private firms and agencies other criteria for evaluation of the prote´ge´s than the Department of the Treasury. PART 1028—BONDS AND INSURANCE developmental success; (c) Mentor and prote´ge´ firms must (f) A listing of the types and dollar submit an evaluation to the OSBD at the Subpart 1028.1—Bonds amounts of subcontracts that may be conclusion of the mutually agreed upon Sec. awarded to the prote´ge´ form; program period, the conclusion of the 1028.106 Administration. (g) Program participation term; contract, or the voluntary withdrawal by 1028.106–6 Furnishing information. (h) Termination procedures; either party from the Mentor-Prote´ge´ Subpart 1028.3—Insurance (i) Plan for accomplishing work Program, whichever comes first. should the agreement be terminated; 1028.307– Insurance under cost- and, 1019.202–70–16 Solicitation provisions reimbursement contracts. (j) Other terms and conditions, as and contract clauses. 1028.307–1 Group insurance plans. appropriate. (a) Insert the provision at DTAR Authority: 41 U.S.C. 418b (a) and (b). 1052.219–73, Department of the 1019.202–70–13 Developmental Treasury Mentor-Prote´ge´ Program, in all Subpart 1028.1—Bonds assistance. unrestricted solicitations exceeding The forms of developmental $500,000 ($1,000,000 for construction) 1028.106 Administration. assistance a mentor can provide to a that offer subcontracting possibilities. 1028.106–6 Furnishing information. prote´ge´ include: (b) Insert the clause at DTAR (a) Management guidance relating to 1052.219–75, Mentor Requirements and (b) COs must furnish certified copies financial management, organizational Evaluation, in contracts where the and determine reasonable and management, overall business prime contractor is participant in the appropriate costs, after consultation management/planning, business Treasury Mentor-Prote´ge´ Program. with legal counsel. development, and technical assistance; (b) Loans; Subpart 1019–7—The Small Business Subpart 1028.3—Insurance (c) Rent-free use of facilities and/or Subcontracting Program equipment; 1028.307 Insurance under cost- (d) Property; 1019.708 Contract clauses. reimbursement contracts. (e) Temporary assignment of 1019.708–70 Solicitation provisions and 1028.307–1 Group insurance plans. personnel to prote´ge´ for purpose of contract clauses. training; and, (a) Insert the clause at DTAR Plans must be submitted to the CO, (f) Any other types of mutually 1052.219–70, SF 294 and SF 295 who must obtain the advice of legal beneficial assistance. Reporting, in all solicitations and counsel. 1019.202–70–14 Obligation. contracts requiring a subcontracting plan. PART 1033—PROTESTS, DISPUTES, (a) Mentor or prote´ge´ firms, may AND APPEALS voluntarily withdraw from the Mentor- (b) Insert the provision at DTAR Prote´ge´ Program. However, such 1052.219–71, Subcontracting Plan, in all Subpart 1033.2—Disputes and Appeals withdrawal will not impact the program solicitations requiring a subcontracting plan. Sec. mission and contract requirements 1033.201 Definitions. under the prime contract. Subpart 1019.8—Contracting With the 1033.210 Contracting officer’s authority. (b) At the conclusion of each year in Small Business Administration (The the Mentor-Prote´ge´ Program, the prime Authority: 41 U.S.C. 418b (a) and (b). 8(a) Program) contractor and prote´ge´ must formally Subpart 1033.2—Disputes and Appeals brief the Department of the Treasury 1019.811 Preparing the contracts. team regarding program 1033.201 Definitions. accomplishments as pertains to the 1019.811–3 Contract clauses. approved agreement. Individual (d)(3) Insert theclause at DTAR Agency Board of Contract Appeals briefings may be conducted, at the 1052.219–18, Notification of means the General Services request of either party. Treasury will Competition Limited to Eligible 8(a) Administration Board of Contract evaluate these reports by considering Concerns—Alternate III (Deviation), for Appeals (GSBCA). The GSBCA is the the following: paragraph (c) of FAR 52.219–18, authorized representative of the (1) Specific actions taken by the Notification of Completion Limited to Secretary of the Treasury in hearing, mentor, during the evaluation period, to Eligible 8(a) Concerns, in all considering, and determining all increase the participation of prote´ge´ as solicitations and contracts that exceed appeals of decisions of CO’s filed by suppliers to the Federal government and $100,000 and are processed under contractors pursuant to FAR subpart to commercial entities; DTAR 1019.8. 33.2. Appeals must be governed by the (2) Specific actions taken by the (f) Insert the clause at DTAR Rules of the GSBCA (48 CFR chapter 61, mentor, during the evaluation period, to 1052.219–72, Section 8(a) Direct Award, part 6101). develop the technical and corporate in solicitations and contracts that administrative expertise of a prote´ge´ as exceed $100,000 and are processed 1033.210 Contracting officer’s authority. defined in the agreement; under DTAR 1019.8 for paragraph (c) of It is Treasury’s policy to encourage (3) To what extent the prote´ge´ has met FAR 52.219–11, Special 8(a) the use of Alternate Disputes Resolution the developmental objectives in the Subcontract Conditions; FAR 52.219– (ADR) procedures. A decision to use agreement; and, 12, Special 8(a) Subcontract Conditions; (4) To what extent the mentor firm’s and FAR 52.219–17, Section 8(a) ADR procedures requires review and participation in the Mentor-Prote´ge´ Award. approval by legal counsel.
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Subchapter H—Clauses and Forms [insert name, address and telephone technical direction issued by the COTR. In number]. the opinion of the contractor, if any direction PART 1052—SOLICITATION (b) Performance of work under this of the COTR or the designated representative PROVISIONS AND CONTRACT contract is subject to the technical direction falls within the limitations of (c) above, the CLAUSES of the COTR identified above, or a contractor must immediately notify the representative designated in writing. The contracting officer no later than the Subpart 1052.2—Texts of Provisions and term ‘‘technical direction’’ includes, without beginning of the next Government work day. Clauses limitation, direction to the contractor that (f) Failure of the contractor and the directs or redirects the labor effort, shifts the contracting officer to agree that technical Sec. work between work areas or locations, and/ direction is within the scope of the contract 1052.210–70 Contracting Officer’s or fills in details and otherwise serves to will be subject to the terms of the clause Technical Representative (COTR) ensure that tasks outlined in the work Designation and Authority. entitled ‘‘Disputes.’’ statement are accomplished satisfactorily. (end of clause) 1052.219–18 Notification of Competition (c) Technical direction must be within the Limited to Eligible 8(a) Concerns— scope of the contract specification(s)/work 1052.219–18 Notification of Competition Alternate III (Deviation). statement. The COTR does not have authority 1052.219–70 SF 294 and SF 295 Reporting. Limited to Eligible 8(a) Concerns—Alternate to issue technical direction that: III (Deviation). 1052.219–71 Subcontracting Plan. (1) Constitutes a change of assignment or 1052.219–72 Section 8(a) Direct Awards. additional work outside the contract In accordance with DTAR 1019.811– 1052.219–73 Department of the Treasury specification(s)/work statement; 3(d)(3), substitute the following for Mentor-Prote´ge´ Program. (2) Constitutes a change as defined in the paragraph (c) in FAR 52.219–18: 1052.219–74 [Reserved] clause entitled ‘‘Changes’’; 1053.219–75 Mentor Requirements and (3) In any manner causes an increase or (c) Any award resulting from this Evaluation. decrease in the contract price, or the time solicitation will be made directly by the Authority: 41 U.S.C. 418b (a) and (b). required for contract performance; contracting officer to the successful 8(a) (4) Changes any of the terms, conditions, offeror selected through the evaluation Subpart 1052.2—Texts of Provisions or specification(s)/work statement of the criteria set forth in this solicitation. contract; and Clauses 1052.219–70 SF 294 and SF 295 Reporting. (5) Interferes with the contractor’s right to 1052.201–70 Contracting Officer’s perform under the terms and conditions of Per DTAR 1019.708–70(a), insert the Technical Representative (COTR) the contract; or, following clause: Designation and Authority. (6) Directs, supervises or otherwise controls the actions of the contractor’s SF 294 AND SF 295 REPORTING (MAR Per DTAR 1001.670–3, insert the 2002) following clause: employees. (d) Technical direction may be oral or in In accordance with the clause entitled CONTRACTING OFFICER’S TECHNICAL writing. The COTR must confirm oral ‘‘Small, Small Disadvantaged and Women- REPRESENTATIVE (COTR) DESIGNATION direction in writing within five workdays, Owned Small Business Subcontracting Plan’’ AND AUTHORITY (MAR 2002) with a copy to the contracting officer. in Section I and the contract schedule, SF (a) The contracting officer’s technical (e) The contractor must proceed promptly 294 and SF 295 reports must be submitted to representative is lllllllllllll with performance resulting from the the following personnel:
Addressee Submit SF 294 Submit SF 295
Contracting Officer (Address shown on front of contract) ...... Original ...... Original. Small Business Specialist [Insert Bureau name and address] ...... Copy ...... Copy. Department of the Treasury Office of Small Business Development (MMD) 1500 Pennsyl- N/A ...... Copy. vania Avenue, NW c/o 1310 G St., NW, Suite 400W Washington, DC 20220.
(End of clause) pursuant to the Memorandum of (1) To notify the contracting officer, Understanding between the Small Business simultaneously with its notification to SBA 1052.219–71 Subcontracting Plan. Administration (SBA) and the Department of (as required by SBA’s 8(a) regulations), when As prescribed in DTAR 1019.708– the Treasury. SBA retains responsibility for the owner(s) upon whom 8(a) eligibility is 70(b), insert the following provision: 8(a) certification, 8(a) eligibility based, plan to relinquish ownership or determinations and related issues, and control of the concern. Consistent with 15 SUBCONTRACTING PLAN (MAR 2002) provides counseling and assistance to the U.S.C. 637(a)21), transfer of ownership or 8(a) contractor under the 8(a) program. The control must result in termination of the As part of its initial proposal, each large contract for convenience, unless SBA waives business offeror must submit a contracting cognizant SBA district office is: [To be completed by the contracting officer at the the requirement for termination prior to the plan, as prescribed in FAR 52.219–9. Use of actual relinquishing of control; and time of award] the subcontracting plan outlined containe in (2) To adhere to the requirements of FAR (b) The contracting officer is responsible Section J of this solicitation is optional; 52.219–14, Limitations on Subcontracting. however, plans must contain all elements for administering the purchase order or (End of clause) included in the outline. contact and taking any action on behalf of the (End of provision) Government under the terms and conditions of the purchase order or contract. However, 1052.219–73 Department of the Treasury the contracting officer shall give advance Mentor-Prote´ge´ Program. 1052.219–72 Section 8(a) Direct Awards. notice to the SBA before it issues a final As described in DTAR 1019.202–70, As prescribed in DTAR 1019.811–3(f), notice terminating performance, either in insert the following provision: insert the following clause: whole or in part, under the purchase order or contract. The contracting officer shall also DEPARTMENT OF THE TREASURY ´ ´ SECTION 8(A) DIRECT AWARDS (MAR coordinate with SBA prior to processing any MENTOR-PROTEGE PROGRAM (JAN 2000) 2002) novation agreement. The contracting officer (a) Large and small businesses are (a) This purchase order or contract is may assign contract administration functions encouraged to participate in the Department issued as a direct award between the to a contract administration office. of the Treasury Mentor-Prote´ge´ Program. contracting activity and the 8(a) contractor (c) The contractor agrees: Mentor firms provide small business prote´ge´
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with developmental assistance to enhance 1052.219–74 [Reserved] prote´ge´ will formally brief the Department of their capabilities and ability to obtain federal the Treasury Mentor-Prote´ge´ Program contracts. 1052.219–75 Mentor Requirements and Manager regarding program accomplishments Evaluation. Mentor firms are large prime contractors or under their mentor-prote´ge´ agreements. eligible small businesses capable of As prescribed in DTAR 1019.202–70, (b) A mentor or prote´ge´ must notify the providing developmental assistance. Prote´ge´ insert the following clause: OSBD and the contracting officer, in writing, firms are small businesses as defined in 13 at least 30 calendar days in advance of the MENTOR REQUIREMENTS AND effective date of the firm’s withdrawal from CFR parts 121, 124, and 126. EVALUATION (JAN 2000) Developmental assistance is technical, the Program. A mentor firm must notify the ´ ´ managerial, financial, and other mutually (a) Mentor and protege firms shall submit OSBD and the contracting officer upon an evaluation to the Department of the beneficial assistance to aid prote´ge´s. receipt of a prote´ge´’s notice of withdrawal Treasury’s OSBD at the conclusion of the Contractors interested in participating in the from the Program. mutally agreed upon Program period, or the Program are encouraged to contact the voluntary withdrawal by either party from (End of Clause) Department of the Treasury OSBD or the the Program, whichever occurs first. At the Bureau of the OSBD for further information. conclusion of each year in the Mentor- [FR Doc. 03–16918 Filed 7–2–03; 8:45 am] (End of provision) Prote´ge´ Program, the prime contractor and BILLING CODE 4811–15–M
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Proposed Rules Federal Register Vol. 68, No. 128
Thursday, July 3, 2003
This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: This the purpose of the Regulatory Flexibility contains notices to the public of the proposed proposed rule is issued pursuant to the Act, a dairy farm is considered a ‘‘small issuance of rules and regulations. The Dairy Production Stabilization Act of business’’ if it has an annual gross purpose of these notices is to give interested 1983 (7 U.S.C. 4501, et seq.), Public Law revenue of less than $750,000. There are persons an opportunity to participate in the 98–108, enacted November 29, 1983. approximately 70,000 dairy farms rule making prior to the adoption of the final This proposed rule has been reviewed rules. subject to the provisions of this Order. under Executive Order 12988, Civil Most of the parties subject to the Order Justice Reform. This proposed rule is are considered small entities. DEPARTMENT OF AGRICULTURE not intended to have a retroactive effect. The proposed rule would amend the If adopted, this proposed rule would not Dairy Promotion and Research Order by Agricultural Marketing Service preempt any State or local laws, modifying the number of member seats regulations, or policies unless they on the National Dairy Promotion and 7 CFR Part 1150 present an irreconcilable conflict with Research Board in four of the 13 this rule. geographic regions. The proposed [Docket No. DA–03–06] This proposed rule has been amendment is being made to better determined not significant for purposes National Dairy Promotion and reflect the geographic distribution of of Executive Order 12866 and, therefore, Research Program; Invitation To milk produced within each of the 13 has not been reviewed by the Office of Submit Comments on Proposed regions of the contiguous 48 States. Management and Budget. The Order currently is administered Amendments to the Order The Dairy Production Stabilization by a 36-member Dairy Board AGENCY: Agricultural Marketing Service, Act of 1983 (Act) (7 U.S.C. 4501, et seq.) representing 13 geographic regions USDA. authorizes the National Dairy Promotion within the contiguous 48 States. The ACTION: Proposed rule. and Research Program. The Act Order provides that the Dairy Board provides that administrative shall review the geographic distribution SUMMARY: This document invites proceedings must be exhausted before of milk production throughout the comments on a proposed amendment to parties may file suit in court. Under United States and, if warranted, shall the Dairy Promotion and Research Order section 4509 of the Act, any person recommend to the Secretary a (Order). The proposal would modify the subject to the Dairy Promotion and reapportionment of the regions and/or composition of the National Dairy Research Order may file with the modification of the number of members Promotion and Research Board (Dairy Secretary a petition stating that the from regions in order to better reflect the Board) by changing the number of Order, any provision of the Order, or geographic distribution of milk member seats in four geographic any obligation imposed in connection production volume in the United States. regions. The proposed amendment was with the Order is not in accordance with Based on a review of the 2002 requested by the Dairy Board, which the law and requesting a modification of geographic distribution of milk administers the Order, to better reflect the Order or to be exempted from the production, the Dairy Board has the geographic distribution of milk Order. A person subject to an Order is concluded that the number of Dairy production in the contiguous 48 States. afforded the opportunity for a hearing Board members for four of the 13 DATES: Comments must be submitted on on the petition. After a hearing, the geographical regions should be changed. or before July 17, 2003. Secretary would rule on the petition. The Dairy Board was last modified in The Act provides that the district court 1998 based on 1997 milk production. ADDRESSES: Comments should be filed of the United States in any district in Accordingly, the proposed with USDA/AMS/Dairy Programs, which the person is an inhabitant, or amendment should not have a Promotion and Research Branch, Stop has his principal place of business, has significant economic impact on persons 0233—Room 2958–S, 1400 jurisdiction to review the Secretary’s subject to the Order. The proposed Independence Avenue, SW., ruling on the petition, provided a changes merely would allow Washington, DC 20250–0233. complaint is filed not later than 20 days representation on the Dairy Board to Comments may be faxed to (202) 720– after the date of the entry of the ruling. better reflect geographic milk 0285 or e-mailed to production in the contiguous 48 States. [email protected]. Comments, Small Business Consideration which should reference the title of the In accordance with the Regulatory Paperwork Reduction Act action and the docket number, will be Flexibility Act (5 U.S.C. 601 et seq.), the In accordance with the Paperwork made available for public inspection at Agricultural Marketing Service (AMS) is Reduction Act (44 U.S.C. chapter 35), the above address during regular required to examine the impact of this the forms and reporting and business hours. Comments also will be proposed rule on small entities. The recordkeeping requirements that are posted at: http://www.ams.usda.gov/ purpose of the Regulatory Flexibility included in the Order have been dairy/index.htm. Act is to fit regulatory actions to the approved previously by the Office of FOR FURTHER INFORMATION CONTACT: scale of businesses subject to such Management and Budget (OMB). David R. Jamison, USDA, AMS, Dairy actions so that small businesses will not This proposed amendment to the Programs, Promotion and Research be disproportionately burdened. For the Order will not add any burden to Branch, Stop 0233—Room 2958–S, 1400 purpose of the Regulatory Flexibility persons subject to the Order because Independence Avenue, SW., Act, small businesses in the dairy they relate to provisions concerning Washington, DC 20250–0233, (202) 720– industry have been defined as those membership of the Dairy Board. The 6961, [email protected]. employing less than 500 employees. For proposed change would not impose
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additional reporting or collecting representing 13 geographic regions Board seats in each of the 13 geographic requirements. No relevant Federal rules within the contiguous 48 States. The regions designated in the Order. Under have been identified that duplicate, Order provides in § 1150.131 that the the formula, total milk production for overlap, or conflict with the proposed Dairy Board shall review the geographic the contiguous 48 States for the rule. distribution of milk production volume previous calender year is divided by 36 Statement of Consideration throughout the United States and, if to determine a factor of pounds of milk warranted, shall recommend to the represented by each Dairy Board The proposed rule, if adopted, would Secretary a reapportionment of the member. The resulting factor is then amend the Dairy Promotion and regions and/or modification of the Research Order by modifying the divided into the pounds of milk number of members from regions in number of member seats on the National produced in each region to determine order to best reflect the geographic Dairy Promotion and Research Board in the number of Board members for each distribution of milk production in the four of the 13 geographic regions. The region. Accordingly, the following table United States. The Dairy Board is proposed amendment reflects milk summarizes by region the volume of required to conduct the review at least produced within each of the 13 milk production distribution for 2002, geographic regions of the contiguous 48 every five years and not more than every the percentage of total milk production, States. three years. the current number of Dairy Board seats The Order currently is administered The Order specifies the formula to be per region, and the proposed number of by a 36-member Dairy Board used to determine the number of Dairy Dairy Board seats for each region.
Milk produc- Percentage Current Proposed Region and States tion (mil of total milk number of number of lbs)* production board seats board seats
1: Oregon, Washington ...... 7,713 4.5 1 2 2: California ...... 34,884 20.6 6 7 3: Arizona, Colorado, Idaho, Montana, Nevada, Utah, Wyoming ...... 16,291 9.6 3 3 4: Arkansas, Kansas, New Mexico, Oklahoma, Texas ...... 15,313 9.0 3 3 5: Minnesota, North Dakota, South Dakota ...... 10,447 6.2 3 2 6: Wisconsin ...... 22,074 13.0 5 5 7: Illinois, Iowa, Missouri, Nebraska ...... 8,971 5.3 2 2 8: Alabama, Kentucky, Louisiana, Mississippi, Tennessee ...... 4,265 2.5 1 1 9: Indiana, Michigan, Ohio, West Virginia ...... 13,264 7.8 3 3 10: Florida, Georgia, North Carolina, South Carolina, Virginia ...... 7,194 4.2 2 1 11: Delaware, Maryland, New Jersey, Pennsylvania ...... 12,492 7.4 3 3 12: New York ...... 12,217 7.2 3 3 13: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont ...... 4,518 2.7 1 1
Total: 48 Contiguous States ...... 169,643 100 36 36 * Based upon preliminary 2002 data that was released in Milk Production, Distrbution & Income, NASS,USDA, April 2003. This data will later be updated, revised, and finalized.
Upon the basis of its review of increased to 7,713 million pounds in Accordingly, it is proposed that geographic milk production volume, the 2002 up from 6,915 million pounds in member representation in Region 1 be Dairy Board has proposed that the 1997, indicating two Dairy Board increased from one member to two number of members in four of the 13 members (7,713 divided by 4,712 = 2) members, Region 2 representation be geographic regions be changed. The compared to one Dairy Board member increased from six members to seven Dairy Board was last modified in 1998 based on 1997 milk production data. members, Region 5 representation be based on 1997 milk production data. Milk production in Region 2 increased decreased from three members to two The current review conducted by the in 2002 to 34,884 million pounds up members, and Region 10 representation Dairy Board is based on 2002 data. In from 27,628 million pounds in 1997, be decreased from two members to one 2002, total milk production was 169,643 indicating seven Dairy Board members member to reflect the geographic million pounds which indicates that for the region (34,884 divided by 4,712 distribution of milk production within each of the Dairy Board members would = 7) compared to 6 Dairy Board represent 4,712 million pounds of milk. the contiguous 48 States. members based on the 1997. Also, in For 1997, total milk production was A 14-day comment period is provided Region 5, milk production decreased to 156,464 which indicated that each of for interested persons to comment on the Board members would represent 10,447 million pounds in 2002 down this proposed rule. Twelve terms of 4,346 milk pounds of milk. from 11,307 million pounds in 1997, existing Dairy Board members will Based on the 2002 milk production indicating two Dairy Board members expire on October 31, 2003. Thus, a 14- (10,447 divided by 4,712 = 2) compared data, the Dairy Board proposes that day comment period is provided to to three Board members based on 1997 member representation in Region 1 allow for a timely appointment of new milk production data. Additionally, (Oregon and Washington) and Region 2 Dairy Board members based on the milk production in Region 10 decreased (California) each be increased by one current geographic distribution of milk to 7,194 million pounds in 2002 down member, and member representation in production in the contiguous 48 States. Region 5 (Minnesota, North Dakota, and from 7,523 million pounds in 1997, South Dakota) and Region 10 (Florida, indicating one Dairy Board member for List of Subjects in 7 CFR Part 1150 Georgia, North Carolina, South Carolina, the region (7,194 divided by 4,712 = 1) and Virginia) each be decreased by one compared to two members based on Dairy Products, Milk, Promotion, member. Milk production in Region 1 1997 data. Research.
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For the reasons set forth in the The categories, and the regulations required, jointly or individually, to preamble, it is proposed that 7 CFR part that NCUA considers to be part of those categorize regulations by type, such as 1150 be amended as follows: categories, are detailed below. This ‘‘consumer regulations’’ or ‘‘safety and review presents a significant soundness’’ regulations. Once we PART 1150—DAIRY PROMOTION opportunity to consider the possibilities establish the categories, we must PROGRAM for burden reduction among groups of provide notice and ask for public similar regulations. NCUA welcomes comment on one or more of these 1. The authority citation for 7 CFR comment on the categories, the order of regulatory categories. In drafting this part 1150 continues to read as follows: review and all other aspects of the notice, the NCUA participated as part of Authority: 7 U.S.C. 4501–4513. project in order to maximize its the EGRPRA planning process with the 2. In § 1150.131, paragraphs (a)(1), (a) effectiveness. other Agencies. Because of the unique (2), (a)(5), and (a)(10 ) are revised to read Today, NCUA is publishing its first in circumstances of federally-insured as follows: a series of public notices, comprising credit unions and their members, NCUA two of the categories—‘‘Applications is issuing a separate notice from the § 1150.131 Establishment and and Reporting,’’ and ‘‘Powers and Agencies. NCUA’s notice is consistent membership. Activities’’—for public comment to and comparable with the Agency’s (a) * * * identify outdated, unnecessary, or notice, except on issues that are unique (1) Two members from region number burdensome regulatory requirements to credit unions. Section 2222 requires one comprised of the following States: imposed on federally-insured credit that NCUA ask the public to identify Washington and Oregon. unions. Since NCUA will publish a areas of the regulations that are (2) Seven members from region series of requests for comment on the outdated, unnecessary, or unduly number two comprised of the following remaining categories, it is not burdensome. NCUA must issue these State: California. recommended that burden reduction publications for comment at regular * * * * * comments be submitted now for any intervals such that all of its regulations (5) Two members from region number regulations in other categories. are published within a 10-year cycle. five comprised of the following States: DATES: Comment must be received on or The first publication cycle will end in Minnesota, North Dakota and South before October 1, 2003. September 2006. The EGRPRA review Dakota. ADDRESSES: Direct comments to Becky supplements and complements the reviews of regulations that NCUA * * * * * Baker, Secretary of the Board. Mail or conducts under other laws and its (10) One member from region number hand-deliver comments to: National Credit Union Administration, 1775 internal policies. ten comprised of the following States: Section 2222 requires a two-part Florida, Georgia, North Carolina, South Duke Street, Alexandria, Virginia 22314–3428. Fax comments to (703) regulatory response. First, NCUA must Carolina and Virginia. publish in the Federal Register a * * * * * 518–6319. E-mail comments to [email protected]. Please send summary of the comments received, Dated: June 27, 2003. comments by one method only. Because identifying the significant issues raised A.J. Yates, of the number of regulatory matters for and discussing those issues. Second, Administrator, Agricultural Marketing which NCUA may be receiving NCUA must ‘‘eliminate unnecessary Service. comments during the time this comment regulations to the extent that such [FR Doc. 03–16827 Filed 7–2–03; 8:45 am] period is open, we suggest commenters action is appropriate.’’ NCUA and the Agencies may prepare the regulatory BILLING CODE 3410–02–P identify comments in response to this notice by including ‘‘EGRPRA’’ in a response individually or jointly. Section 2222 further requires the subject or reference line in their FFIEC to submit a report to the Congress comments. NATIONAL CREDIT UNION within 30 days after NCUA and the ADMINISTRATION FOR FURTHER INFORMATION CONTACT: Agencies publish the comment Mary F. Rupp, Staff Attorney, Office of 12 CFR Chapter VII summary and discussion in the Federal General Counsel, at the above address or Register. This report must summarize Regulatory Publication and Review telephone (703) 518–6540. any significant issues raised by the Under the Economic Growth and SUPPLEMENTARY INFORMATION: public comments and the relative merits of those issues. The report also must Regulatory Paperwork Reduction Act I. Introduction of 1996 analyze whether the appropriate federal Congress enacted section 2222 of the financial regulator involved is able to AGENCY: National Credit Union Economic Growth and Regulatory address the regulatory burdens Administration. Paperwork Reduction Act of 1996 associated with the issues by regulation, ACTION: Notice of regulatory review; (EGRPRA) (Pub. L. 104–208) as part of or whether the burdens must be request for comments. an effort to minimize unnecessary addressed by legislation. government regulation consistent with SUMMARY: The NCUA Board is beginning safety and soundness, consumer II. The EGRPRA Review’s Special a review of its regulations to reduce protection, and other public policy Focus burden imposed on federally-insured goals. Under section 2222 (12 U.S.C. The regulatory review required by credit unions, as required by section 3311), NCUA and the Office of the section 2222 provides a significant 2222 of the Economic Growth and Comptroller of the Currency, Board of opportunity for the public and NCUA to Regulatory Paperwork Reduction Act of Governors of the Federal Reserve step back and look at groups of related 1996. As required by section 2222, System, Federal Deposit Insurance regulations and identify possibilities for NCUA has categorized its regulations for Corporation, and Office of Thrift streamlining. The EGRPRA review’s the purpose of the review and proposes Supervision (Agencies) must review overall focus on the ‘‘forest’’ of to publish categories of regulations for their regulations to reduce burden on regulations will offer a new perspective review between now and 2006. insured depository institutions. We are in identifying opportunities to reduce
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regulatory burden. Of course, reducing rulemaking to minimize the burdens it that the number of regulations presented regulatory burden must be consistent might impose on the industry and in any one category would overwhelm ensuring the continued safety and considers various alternatives. potential commenters. soundness of federally-insured credit NCUA will use both the EGRPRA The categories also reflect recognized unions and appropriate consumer review and its individual reviews to areas of industry interest and protections. identify and reduce burdens on ‘‘small’’ specialization or are particularly critical EGRPRA also recognizes that burden institutions. More than half of federally- to the health of the credit union system. reduction must be consistent with insured credit unions are small—having NCUA recognizes that its regulations NCUA’s statutory mandates, many of $10 million in assets or less—as defined could be categorized in other ways and which currently require certain by NCUA in IRPS 03–2. We are welcomes recommendations about the regulations. One of the significant particularly concerned about burden on categories and the regulations placed aspects of the EGRPRA review program small institutions. When a new within them. The Board notes that some is the recognition that effective burden regulation is created or an old regulation regulations, such as lending, pertain to reduction in certain areas may require is changed, small credit unions must more than one category and are legislative change. NCUA will be devote a large percentage of their staffs’ included in all applicable categories. soliciting comment on, and reviewing time to review the regulation to Joint publication is not required by the comments and regulations carefully determine if and how it will affect them. section 2222. NCUA believes that for, the relationship among burden Compliance with a regulation also can publishing its rules for public comment reduction, regulatory requirements and take large amounts of time that cannot separately from the Agencies is the most statutory mandates. This will be a key be devoted to servicing members or 1 effective method for achieving aspect of the report back to Congress. business planning. In a large credit EGRPRA’s burden reduction goals for The combination of considering the union, ensuring regulatory compliance federally-insured credit unions. The relationship of regulatory and statutory can take many more hours; however, credit union system is quite different change on regulatory burden with the those hours make up a much smaller than the banking system. For example, section 2222 requirement for grouping percentage of the credit union’s credit unions deal with issues such as regulations by type provides the resources. In situations where a membership, credit union service possibility for particularly effective regulation is aimed at an activity organizations (CUSOs), and corporate burden reduction. It may be possible to engaged in primarily by large credit credit unions, which are unique to identify statutes and regulations that unions, the compliance burden on small credit union operations. The Agencies share similar goals or complementary credit unions can outweigh its benefit. methods of compliance monitoring such have listed four categories: Banking that the compliance requirements could III. NCUA’s Proposed Plan operations; community reinvestment; be combined and overlapping NCUA must categorize its regulations international operations; and securities, requirements could be eliminated. For by ‘‘type.’’ Section 2222 gives it which have limited or no applicability example, it may be possible to combine authority to determine categories, and in the credit union system. NCUA has certain types of applications to suggests two possible categories: included two categories, agency eliminate duplication. ‘‘consumer regulations’’ and ‘‘safety and programs and corporate credit unions, The EGRPRA review can also soundness.’’ NCUA has regulations on which have no applicability in the significantly contribute to the NCUA’s more than 25 subjects covering a wide banking system. Because of these on-going efforts to reduce regulatory variety of areas from capital obvious differences, NCUA is burden. For example, since 1987, a maintenance to the privacy of consumer publishing its notices separately but formally adopted NCUA policy has financial information. A few of these maintaining comparability with the required the Board to review each of its regulations have been issued jointly Agencies’ notices to the extent the regulations at least once every three with the other Agencies and are as issues are the same. NCUA is publishing years with a view toward eliminating, uniform as possible. The majority of two categories of rules for burden simplifying, or otherwise easing the NCUA’s regulations are issued reduction comment with this notice and burden of each regulation.2 independently by NCUA and apply only plans to publish the remaining eight Further, NCUA addresses the issue of to federally-insured credit unions. categories in roughly semiannual regulatory burden every time it proposes NCUA proposes to seek comments on intervals, with 90-day comment periods and adopts a rule. Under the Paperwork 10 categories of its regulations which for categories under review, through Reduction Act of 1995 (44 U.S.C. 3501 impose burden on federally-insured September 2006. NCUA welcomes et seq.), the Regulatory Flexibility Act (5 credit unions, including regulations that recommendations on grouping the U.S.C. 601 et seq.) and internal agency apply only to federal credit unions, remaining categories and the order in policies, NCUA examines each between now and 2006.3 The categories, which to publish them. in alphabetical order, are: Agency After the conclusion of the comment 1 Credit unions are also subject to regulations Programs; Applications and Reporting; period for each EGRPRA review notice issued by other non-banking agencies, such as rules Capital; Consumer Protection; Corporate published in the Federal Register, issued by the Department of Housing and Urban Credit Unions; Directors, Officers and NCUA will review the comments it has Development (under Real Estate Settlement Procedures Act of 1974) and by the Department of Employees; Money Laundering; Powers received and decide whether further the Treasury (under the Bank Secrecy Act including and Activities; Rules of Procedure and action is appropriate with respect to the rules required by the USA Patriot Act). The rules Safety and Soundness. NCUA believes categories of regulations included in of these other agencies are beyond the scope of the that these categories are logical that notice. In the case of rules that EGRPRA review and the NCUA’s jurisdiction. To the extent the NCUA receives comments raising groupings that are not so broad such NCUA has issued jointly with the significant issues regarding these related rules, Agencies, NCUA will make that however, it intends to identify the issues in the 3 Consistent with section 2222’s focus on decision jointly with the Agencies. Any Report to Congress and will also notify the related reducing burden on insured institutions, NCUA rulemaking to amend or revise those agencies of the substance of the relevant comments. will not publish its internal organizational and 2 Interpretive Ruling and Policy Statement (IRPS) operational regulations to the extent that those rules would similarly be undertaken 87–2, 52 FR 35231 (September 8, 1987) as amended regulations impose no, or minimal, burden on jointly and will provide the public with by IRPS 03–2, 68 FR 32127 (May 29, 2003). insured credit unions. an opportunity to comment on any
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proposed amendment. NCUA will reasons why such provisions should be • Effect of the regulations on separately determine whether changed, would be most helpful to competition. Do any of the regulations amendments to its own rules are NCUA’s review efforts. Suggested in these categories or the statutes appropriate in light of comments alternative provisions or language, underlying them create competitive submitted during the EGRPRA review where appropriate, would also be disadvantages for credit unions and, if so, will separately initiate a helpful. If the implementation of a compared to another part of the rulemaking to modify its rules. comment would require modifying a financial services industry? NCUA has prepared two charts to statute that underlies the regulation, the • Reporting, recordkeeping and assist public understanding of the comment should, if possible, identify disclosure requirements. Do any of the organization of its section 2222 review. the needed statutory change. regulations in these categories or the The first chart, at V.A., presents the two Specific issues for commenters to statutes underlying them impose categories of regulations on which consider. While all comments related to particularly burdensome reporting, NCUA is requesting burden reduction any aspect of section 2222 are welcome, recordkeeping or disclosure recommendations in this notice. The NCUA invites comment on the requirements? Are any of these two categories are shown in the left following issues: requirements similar enough in purpose column. In the middle column are the • Need and purpose of the and use so that they could be subject matters that fall within the regulations. Do the regulations in these consolidated? What, if any, of these categories and in the far right column categories fulfill current needs? Have requirements could be fulfilled are the regulatory citations. The second industry or other circumstances electronically to reduce their burden? chart, at V.B., presents the remaining changed since a regulation was written • Consistency and redundancy. Do eight categories in alphabetical order in such that the regulation is no longer any of the regulations in these categories a similar format. necessary? Have there been shifts within impose inconsistent or redundant IV. Request for Burden Reduction the industry or consumer actions that regulatory requirements that are not Recommendations About the First Two suggest a re-focus of the underlying warranted by the circumstances? Categories of Regulations: regulations? • Clarity. Are the regulations in these ‘‘Applications and Reporting’’ and Do any of the regulations in these categories and the underlying statutes ‘‘Powers and Activities’ categories impose burdens not required drafted in clear and easily understood NCUA is asking the public to identify by their authorizing statutes? language? Are there specific regulations areas of regulations within two • Need for statutory change. Do the or underlying statutes that need categories—‘‘Applications and statutes impose unnecessary clarification? Reporting,’’ and ‘‘Powers and requirements? Are any of the statutory • Burden on small insured Activities’’—that impose outdated, requirements underlying these institutions. NCUA has a particular unnecessary, or unduly burdensome categories redundant, conflicting or interest in minimizing burden on small regulatory requirements on federally- otherwise unduly burdensome? insured credit unions (those with less insured credit unions. It is not necessary • Overreaching approaches/flexibility than $10 million in assets). NCUA for the public to provide burden of the regulatory standards. Generally, solicits comment on whether any reduction recommendations about is there a different approach to regulations within these categories categories of rules other than these two regulating that NCUA could use that should be continued without change, categories at this time since NCUA will would achieve statutory goals while amended or rescinded in order to publish the remaining categories before imposing less burden? Do any of the minimize any significant economic the end of the first review cycle in 2006. regulations in these categories or the impact the regulations may have on a Comments that cite particular statutes underlying them impose substantial number of small federally- provisions or language, and provide unnecessarily inflexible requirements? insured credit unions.
Category Subject Reg. Cite
V. A. Regulations About Which Burden Reduction Recommendations Are Requested Currently
1. Applications and Report- Change in Official or Senior Executive Officer in Credit Unions that are Newly Char- 12 CFR 701.14. ing. tered or in Troubled Condition. Field of Membership/Chartering ...... 12 CFR 701.1; IRPS 03–1. Fees Paid by Federal Credit Unions ...... 12 CFR 701.6. Conversion of Insured Credit Unions to Mutual Savings Banks ...... 12 CFR part 708a. Mergers of Federally-Insured Credit Unions; Voluntary Termination or Conversion of 12 CFR part 708b. Insured Status. Applications for Insurance ...... 12 CFR 741.0; 741.3; 741.4; 741.6. Conversion to a state-chartered credit union ...... 12 CFR 741.7. Purchase of assets and assumption of liabilities ...... 12 CFR 741.8. 2. Powers and Activities: a. Lending, Leasing Loans to Members and Lines of Credit to Members ...... 12 CFR 701.21. and Borrowing. Participation Loans ...... 12 CFR 701.22. Borrowed Funds from Natural Persons ...... 12 CFR 701.38. Statutory Lien ...... 12 CFR 701.39. Leasing ...... 12 CFR part 714. Member Business Loans ...... 12 CFR part 723.
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Category Subject Reg. Cite
Maximum Borrowing ...... 12 CFR 741.2. b. Investment and De- Investment and Deposit Activities ...... 12 CFR part 703. posits. Fixed Assets ...... 12 CFR 701.36. Credit union Service Organizations (CUSOs) ...... 12 CFR part 712. Payment on Shares by Public Units and Nonmembers ...... 12 CFR 701.32. Designation of low-income status; receipt of secondary capital accounts by low-in- 12 CFR 701.34. come designated credit unions. Share, Share Draft, and Share Certificate Accounts ...... 12 CFR 701.35. Treasury Tax and Loan Depositories; Depositories and Financial Agents of the Gov- 12 CFR 701.37. ernment. Refund of Interest ...... 12 CFR 701.24. c. Miscellaneous Activi- Incidental Powers ...... 12 CFR part 721. ties. Charitable Contributions and Donations ...... 12 CFR 701.25. Credit Union Service Contracts ...... 12 CFR 701.26. Purchase, Sale and Pledge of Eligible Obligations ...... 12 CFR 701.23.
V. B. Categories and Regulations About Which NCUA Will Seek Comment Later
1. Agency Programs ...... Community Development Revolving Loan Program ...... 12 CFR part 705. Central Liquidity Facility ...... 12 CFR part 725. Designation of low-income status; receipt of secondary capital accounts by low-in- 12 CFR 701.34. come designated credit unions. Regulatory Flexibility Program ...... 12 CFR part 742. 2. Capital ...... Prompt Corrective Action ...... 12 CFR part 702. Adequacy of Reserves ...... 12 CFR 741.3(a). 3. Consumer Protection ..... Nondiscrimination Requirement (Fair Housing) ...... 12 CFR 701.31. Truth in Savings (TIS) ...... 12 CFR part 707. Loans in Areas Having Special Flood Hazards ...... 12 CFR part 760. Privacy of Consumer Financial Information ...... 12 CFR part 716. Share Insurance ...... 12 CFR part 745. Advertising ...... 12 CFR part 740. Disclosure of Share Insurance ...... 12 CFR 741.10. Notice of termination of Excess Insurance Coverage ...... 12 CFR 741.5. Uninsured Membership Shares ...... 12 CFR 741.9. 4. Corporate Credit Unions Corporate Credit Unions ...... 12 CFR part 704. 5. Directors, Officers and Loans and Lines of Credit to Officials ...... 12 CFR 701.21(d). Employees. Reimbursement, Insurance and Indemnification of Officials and Employees ...... 12 CFR 701.33. Benefits for Employees of Federal Credit Unions ...... 12 CFR 701.19. Management Official Interlocks ...... 12 CFR part 711. Fidelity Bond and Insurance Coverage ...... 12 CFR 713. 6. Money Laundering ...... Report of Crimes or Suspected Crimes ...... 12 CFR 748.1(c). Bank Secrecy Act ...... 12 CFR 748.2. 7. Rules of Procedure ...... Liquidation (Involuntary and Voluntary) ...... 12 CFR parts 709 and 710. Uniform Rules of Practice and Procedure ...... 12 CFR part 747 subpart A. Local Rules of Practice and Procedure ...... 12 CFR part 747 subpart B. 8. Safety & Soundness ...... Lending ...... 12 CFR 701.21. Investments ...... 12 CFR part 703. Supervisory Committee Audits and Verifications ...... 12 CFR part 715. Security Programs ...... 12 CFR 748. Guidelines for Safeguarding Member Information ...... 12 CFR part 748, Appendix A. Records Preservation Program and Record Retention Appendix ...... 12 CFR part 749. Appraisals ...... 12 CFR 722. Examination ...... 12 CFR 741.1. Regulations Codified Elsewhere in NCUA’s Regulations as applying to Federal 12 CFR part 741, subpart Credit Unions that also apply to Federally insured state-chartered credit unions. B.
By the National Credit Union NATIONAL CREDIT UNION SUMMARY: NCUA proposes to update Administration Board on June 26, 2003. ADMINISTRATION and clarify the definitions of certain Becky Baker, terms used in NCUA’s loan Secretary of the Board. 12 CFR Part 701 participation rule. Specifically, the definition of ‘‘credit union [FR Doc. 03–16795 Filed 7–2–03; 8:45 am] Organization and Operations of organization’’ is being amended to BILLING CODE 7535–01–P Federal Credit Unions conform to the terms of the credit union AGENCY: National Credit Union service organizations (CUSOs) rule. Administration (NCUA). Also, the definition of ‘‘financial ACTION: Proposed rule with request for comments.
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organization’’ is being broadened to businesses which principally provide Congress would object to this limited provide federal credit unions (FCUs) services to credit union members as and prudent amendment. greater flexibility in choosing opposed to corporations or businesses Regulatory Procedures appropriate loan participation partners. whose business relates to the daily in- DATES: Comments must be received on house operation of credit unions.’’ 12 Regulatory Flexibility Act or before September 2, 2003. CFR 701.22(a)(4). Formerly, NCUA’s The Regulatory Flexibility Act ADDRESSES: Direct comments to Becky CUSO rule distinguished between requires NCUA to prepare an analysis to Baker, Secretary of the Board. Mail or CUSOs providing operational services to describe any significant economic hand-deliver comments to: National FCUs and those providing financial impact a proposed rule may have on a Credit Union Administration, 1775 services to FCU members. substantial number of small credit Duke Street, Alexandria, Virginia In a 1998 final rule, NCUA eliminated unions (those under one million dollars 22314–3428. You are encouraged to fax that distinction in the CUSO rule. 63 FR in assets). The proposed rule expands comments to (703) 518–6319 or email 10743 (March 5, 1998). Under NCUA’s the pool of eligible organizations with comments to [email protected] regulations, CUSOs are entities that whom an FCU may engage in loan instead of mailing or hand-delivering engage in providing products and participations, without imposing any them. Whatever method you choose, services related to the routine daily additional regulatory burden. The please send comments by one method operations of credit unions to credit proposed rule would not have a only. unions and credit union members. 12 significant economic impact on a CFR 712.3, 12 CFR 712.5. NCUA FOR FURTHER INFORMATION CONTACT: substantial number of small credit proposes to amend the definition of Frank Kressman, Staff Attorney, Office unions, and, therefore, a regulatory ‘‘credit union organization’’ in the loan of General Counsel, at the above address flexibility analysis is not required. participation rule to conform to NCUA’s or telephone: (703) 518–6540. Paperwork Reduction Act interpretation of that term in the CUSO SUPPLEMENTARY INFORMATION: rule. NCUA has determined that the Background The Act does not define the term proposed rule would not increase ‘‘financial organization.’’ Section paperwork requirements under the Engaging in loan participations is an Paperwork Reduction Act of 1995 and effective tool for FCUs to manage 701.22(a)(5) defines it as ‘‘any federally chartered or federally insured financial regulations of the Office of Management liquidity and concentration risk. It is and Budget. also a way for FCUs to comply with institution.’’ 12 CFR 701.22(a)(5). NCUA or self-imposed lending limits. Although the Act is silent, the rule Executive Order 13132 derives its definition from the legislative Additionally, small FCUs are able to Executive Order 13132 encourages history of the 1977 public law that improve the diversification of their loan independent regulatory agencies to granted FCUs various additional portfolios by participating in loans consider the impact of their actions on authorities, including the authority to originated by larger FCUs that have the state and local interests. In adherence to engage in loan participations. H.R. Rep. resources to underwrite a wider variety fundamental federalism principles, No. 95–23, at 12 (1977), reprinted in of loan types. For these and other NCUA, an independent regulatory 1977 U.S.C.C.A.N. 115. In granting this benefits, it is not surprising that FCU agency as defined in 44 U.S.C. 3502(5), authority, Congress expressed its intent interest in loan participations appears to voluntarily complies with the executive to enhance the ability of FCUs to serve be increasing. order. The proposed rule would not their members’ loan demands. Congress NCUA staff has identified § 701.22, have substantial direct effects on the also expressed its concern that the loan participation rule, as a states, on the connection between the originating FCUs must maintain regulation in need of updating and national government and the states, or discipline in the origination process. To clarification. Accordingly, NCUA is on the distribution of power and ensure that discipline and good proposing the following amendments to responsibilities among the various underwriting standards prevail, improve the rule. levels of government. NCUA has Congress requires originating FCUs to Section 701.22 of NCUA’s regulations determined that this proposed rule does retain at least a ten percent interest in provides that an FCU may engage in not constitute a policy that has the face amount of all loans they loan participations with ‘‘eligible federalism implications for purposes of participate out. organizations’’ and defines that term as the executive order. a credit union, credit union Consistent with congressional intent organization, or financial organization. to enhance the ability of FCUs to serve The Treasury and General Government 12 CFR 701.22(b), 12 CFR 701.22(a)(2). their members’ loan demands through Appropriations Act, 1999—-Assessment The rule further defines ‘‘credit union participations, NCUA believes it is of Federal Regulations and Policies on organization’’ and ‘‘financial appropriate to expand the regulatory Families organization.’’ 12 CFR 701.22(a)(4) and definition of ‘‘financial organization’’ to The NCUA has determined that this (a)(5). include state and federal government proposed rule would not affect family The Federal Credit Union Act (Act) agencies. NCUA is aware that there are well-being within the meaning of defines ‘‘credit union organization’’ as various state and federal government section 654 of the Treasury and General ‘‘any organization as determined by the supported loan programs that are Government Appropriations Act, 1999, Board, which is established primarily to particularly geared to underserved Pub. L. 105–277, 112 Stat. 2681 (1998). serve the needs of its member credit borrowers. These types of programs, unions, and whose business relates to which include agricultural and small Agency Regulatory Goal the daily operations of the credit unions business lending, are ideally suited to NCUA’s goal is to promulgate clear they serve.’’ 12 U.S.C. 1757(5)(D). the mission of FCUs. Also, this will give and understandable regulations that Section 701.22(a)(4) echoes this FCUs greater flexibility in choosing impose minimal regulatory burden. We definition, but specifically excludes, appropriate participation partners. request your comments on whether the among others, some CUSOs, which it NCUA does not read anything in the proposed rule is understandable and describes as ‘‘corporations or other legislative history to suggest that minimally intrusive.
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List of Subjects in 12 CFR Part 701 death of a member and for separate POD to Mary Smith’’ is sufficient to Credit unions, Mortgages, Reporting coverage after the merger of insured create a revocable trust account. and recordkeeping requirements. credit unions for limited periods of Although not preferable, the account time; and clarify that there is coverage title ‘‘John Smith POD’’ is also sufficient By the National Credit Union for Coverdell Education Savings to create a revocable trust account. To Administration Board on June 26, 2003. Accounts, formerly Education IRAs. be insurable as a revocable trust Becky Baker, DATES: Comments must be received on account, however, the beneficiaries Secretary of the Board. or before September 2, 2003. must be specifically named in the credit union’s account records. NCUA believes For the reasons stated above, NCUA ADDRESSES: Direct comments to Becky that naming the beneficiaries in the proposes to amend 12 CFR part 701 as Baker, Secretary of the Board. Mail or account title is the most effective way of follows: hand-deliver comments to: National establishing insurance coverage. Credit Union Administration, 1775 PART 701—ORGANIZATION AND NCUA’s share insurance rules provide Duke Street, Alexandria, Virginia OPERATIONS OF FEDERAL CREDIT that an owner’s funds in a revocable 22314–3428. You are encouraged to fax UNIONS trust account are separately insured up comments to (703) 518–6319 or email to $100,000 for each qualifying 1. The authority citation for part 701 comments to [email protected] beneficiary named in the account. 12 continues to read as follows: instead of mailing or hand-delivering CFR 745.4. A qualifying beneficiary is Authority: 12 U.S.C. 1752(5), 1755, 1756, them. Whatever method you choose, the owner’s spouse, child, grandchild, 1757, 1759, 1761a, 1761b, 1766, 1767, 1782, please send comments by one method parent, brother or sister. Id. All others 1784, 1787, and 1789 and P.L. 101–73. only. are nonqualifying beneficiaries. Section 701.6 is also authorized by 31 U.S.C. FOR FURTHER INFORMATION CONTACT: NCUA treats the interests of 3717. Section 701.31 is also authorized by 15 Frank Kressman, Staff Attorney, Office nonqualifying beneficiaries named in U.S.C. 1601 et seq., 42 U.S.C. 1861 and 42 the revocable trust account as the U.S.C. 3601–3610. of General Counsel, at the above address or telephone: (703) 518–6540. individually owned funds of the owner 2. Section 701.22 is amended by SUPPLEMENTARY INFORMATION: of the account. In this context, these revising paragraphs (a)(4) and (a)(5) to funds would be aggregated with all read as follows: A. Background other individual accounts of the owner and insured up to $100,000. The current § 701.22 Loan participation. In accordance with NCUA’s regulatory review process, NCUA staff language of § 745.4(c) could be read as (a) * * * providing that these nonqualifying (4) Credit union organization means has identified part 745 as a regulation in need of updating, clarification and beneficiary interests will only be any credit union service organization insured as the individually owned meeting the requirements of part 712 of simplification. To that end, NCUA is proposing the below amendments to funds of the owner if the owner has this chapter. This term does not include actually opened an individual account trade associations or membership improve part 745 and to maintain parity between the separate federal insurance in the insured credit union where the organizations principally composed of revocable trust account is held. 12 CFR credit unions. programs administered by NCUA and FDIC. 745.4(c). NCUA proposes to revise that (5) Financial organization means: (i) section to make clear that it will treat Any federally chartered or federally B. Proposed Amendments nonqualifying beneficiary interests as insured financial institution; and the individually owned funds of the (ii) Any state or federal government Revocable Trust Accounts owner even where the owner has not agency and their subdivisions. A revocable trust account is a actually opened an individual account * * * * * testamentary account that evidences the at the credit union. This is consistent [FR Doc. 03–16793 Filed 7–2–03; 8:45 am] owner’s intent to have funds in the with FDIC’s treatment of these funds. BILLING CODE 7535–01–P account pass to named beneficiaries upon the owner’s death. NCUA is Insurance Coverage Following the Death increasingly receiving inquiries from of a Member NATIONAL CREDIT UNION credit unions and credit union members The death of a member results in an ADMINISTRATION regarding three aspects of revocable immediate change in the ownership of trust accounts. Specifically, these the member’s share accounts. This 12 CFR Part 745 inquiries concern how: (1) Revocable change in ownership could significantly trusts are created; (2) an owner change the amount of share insurance Share Insurance and Appendix demonstrates testamentary intent; and coverage available for those accounts, AGENCY: National Credit Union (3) the interests of nonqualifying most likely reducing coverage. Administration (NCUA). beneficiaries are treated. For example, a husband and wife may ACTION: Proposed rule with request for Unlike more complicated trusts such hold a joint account, a joint revocable comments. as living trusts, which require formal, trust account for the benefit of their two often complex, written trust documents, children, and two individual accounts SUMMARY: NCUA proposes to amend its simple revocable trusts can be created at in their own names. Assuming these share insurance rules. The amendments the credit union merely by indicating accounts satisfy all applicable simplify and clarify these rules and that intent in the title to an account. requirements, these four accounts provide parity with the deposit Common terms used in the account title would be insured up to a maximum of insurance rules of the Federal Deposit to create a revocable trust and indicate $800,000. The $800,000 is broken down Insurance Corporation (FDIC). the owner’s intent include ‘‘payable on as follows: $200,000 for the joint Specifically, the amendments: clarify death’’, ‘‘in trust for’’, and ‘‘as trustee account; $400,000 for the joint revocable how revocable trust accounts are for’’, or acronyms for these phrases, trust account; and $100,000 for each of established and insured; provide respectively, POD, ITF and ATF. For the two individual accounts. Upon the continuation of coverage following the example, the account title ‘‘John Smith death of either the husband or wife,
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however, the surviving spouse would when a member has structured his or Regulatory Procedures become the sole owner of the joint her accounts at different insured credit Regulatory Flexibility Act account and the joint revocable trust unions to be fully insured. Specifically, account. Under NCUA share insurance when a member has accounts at more The Regulatory Flexibility Act rules, the joint account would be than one insured credit union, a merger requires NCUA to prepare an analysis to transformed into an individual account of those credit unions could reduce the describe any significant economic subject to aggregation with the surviving amount of share insurance coverage the impact a proposed rule may have on a spouse’s other individual account and member had before the merger. For substantial number of small credit insured up to a maximum of $100,000. example, member X has a $75,000 unions (those under one million dollars The single ownership (individual) individual account at insured credit in assets). The proposed rule only account in the name of the deceased union A and a $50,000 individual spouse would continue to be insured clarifies the share insurance coverage separately from the other accounts. The account at insured credit union B. Both available to credit union members, maximum coverage of the joint accounts are fully insured because a without imposing any regulatory revocable trust account would be member is entitled to $100,000 of burden. The proposed rule would not reduced from $400,000 to $200,000, coverage in the aggregate for all have a significant economic impact on because coverage for this type of individual accounts in each insured a substantial number of small credit account is calculated as $100,000 for credit union. 12 CFR 745.1; 12 CFR unions, and, therefore, a regulatory each combination of settlors and 745.3. If insured credit unions A and B flexibility analysis is not required. qualifying beneficiaries. In sum, the merge, then X would have individual Paperwork Reduction Act maximum coverage of the four accounts accounts in the surviving insured credit would be reduced immediately upon union totaling $125,000. X would be NCUA has determined that the the death of the husband or wife from insured for $100,000 and uninsured for proposed rule would not increase $800,000 to $400,000. $25,000. paperwork requirements under the NCUA does not believe this result is NCUA does not believe members Paperwork Reduction Act of 1995 and fair or desirable. NCUA recognizes there should immediately have reduced share regulations of the Office of Management are a number of practical difficulties a and Budget. member’s survivors might encounter in insurance coverage as a result of credit attempting to restructure the member’s union mergers. Accordingly, NCUA Executive Order 13132 share accounts immediately upon the proposes to provide members with a six- member’s death. NCUA further month grace period following the Executive Order 13132 encourages recognizes that these difficulties are merger of insured credit unions, during independent regulatory agencies to worsened in that they would occur at a which time members will receive consider the impact of their actions on time of grief when dealing with separate insurance of their accounts as state and local interests. In adherence to financial matters may not be a priority though no merger had occurred. NCUA fundamental federalism principles, for the member’s survivors. believes six months is sufficient time for NCUA, an independent regulatory Accordingly, NCUA believes it would members to restructure their accounts to agency as defined in 44 U.S.C. 3502(5), be beneficial to grant a six-month grace maximize share insurance coverage. voluntarily complies with the executive period after a member’s death for his or order. The proposed rule would not A share certificate that matures after her survivors to restructure the have substantial direct effects on the the six-month grace period will receive accounts. During this grace period, the states, on the connection between the insurance coverage of the deceased the separate insurance treatment until national government and the states, or member’s accounts would not change the first maturity date following the on the distribution of power and from that available immediately before grace period. A share certificate that responsibilities among the various the member’s death, unless the accounts matures during the six-month grace levels of government. NCUA has are restructured during the grace period period and is renewed for the same term determined that this proposed rule does by those authorized to do so. Because and dollar amount will receive the not constitute a policy that has the intent of this grace period is to avoid separate insurance treatment until the federalism implications for purposes of reduced insurance coverage, the grace first maturity date after the grace period the executive order. period will not be applied if doing so under the terms of the renewed would result in decreased share certificate. A share certificate that The Treasury and General Government insurance coverage. matures during the grace period that is Appropriations Act, 1999—Assessment of Federal Regulations and Policies on not renewed, or is renewed on any basis Insurance Coverage After the Merger of Families Insured Credit Unions other than for the same term and dollar amount as the original certificate, is The NCUA has determined that this NCUA encourages members to separately insured only for the six- structure their accounts at insured proposed rule would not affect family month grace period. credit unions in a manner that will well-being within the meaning of provide maximum share insurance Coverdell Education Savings Accounts section 654 of the Treasury and General coverage and has developed a share Government Appropriations Act, 1999, insurance program to facilitate that goal. In May 2000, Education IRAs were Pub. L. 105–277, 112 Stat. 2681 (1998). As part of that program, a member’s specified as insurable under NCUA’s Agency Regulatory Goal share accounts at an insured credit share insurance rules as irrevocable union are insured separately from that trust accounts. 65 FR 34921 (June 1, NCUA’s goal is to promulgate clear member’s share accounts at any other 2000). Since that time, Education IRAs and understandable regulations that separately chartered, insured credit have been replaced with Coverdell impose minimal regulatory burden. We union. Because of this, the merger of Education Savings Accounts. NCUA request your comments on whether the insured credit unions could jeopardize proposes to revise the share insurance proposed rule is understandable and a member’s insurance coverage even rules to reflect that change. minimally intrusive.
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List of Subjects in 12 CFR Part 745 dividends having been added to the 5. The Appendix to part 745 is Administrative practice and principal amount, and for the same term amended by revising the third sentence procedure, Bank deposit insurance, as the original share certificate, the of Section B to read as follows: separate insurance applies to the Claims, Credit unions. Appendix to Part 745—Examples of renewed share certificate until the first Insurance Coverage Afforded Accounts By the National Credit Union maturity date after the six-month Administration Board on June 26, 2003. in Credit Unions Insured by the period. A share certificate that matures National Credit Union Share Insurance Becky Baker, within the six-month grace period that Fund Secretary of the Board. is renewed on any other basis, or that For the reasons stated above, NCUA is not renewed, is separately insured * * * * * proposes to amend 12 CFR part 745 as only until the end of the six-month B. How Are Revocable Trust Accounts follows: grace period. Insured? 3. Section 745.4 is amended by PART 745—SHARE INSURANCE AND adding two sentences to the end of * * * If the named beneficiary of a APPENDIX paragraph (a) and revising paragraph (c) revocable trust account is other than the spouse, child, grandchild, parent, 1. The authority citation for part 745 to read as follows: brother or sister of the account owner, continues to read as follows: § 745.4 Revocable trust accounts. the funds corresponding to that Authority: 12 U.S.C. 1752(5), 1757, 1765, beneficiary shall be treated as an (a) * * * This required intention 1766, 1781, 1782, 1787, 1789. individually owned account of the must be demonstrated in the title of the 2. Section 745.2 is amended by owner, aggregated with any other account using commonly accepted adding paragraphs (e) and (f) to read as individually owned accounts of the terms such as, but not limited to, ‘‘in follows: owner, and insured up to $100,000. trust for’’, ‘‘as trustee for’’, ‘‘payable on *** § 745.2 General principles applicable in death to’’, or any acronym for these determining insurance of accounts. terms. In addition, the beneficiaries * * * * * * * * * * must be specifically named in the share [FR Doc. 03–16794 Filed 7–2–03; 8:45 am] (e) Continuation of insurance account records of the insured credit BILLING CODE 7535–01–P coverage following the death of a union. member. The death of a member will * * * * * not affect the member’s share insurance (c) If the named beneficiary of a DEPARTMENT OF TRANSPORTATION coverage for a period of six months revocable trust account is other than the following death unless the member’s spouse, child, grandchild, parent, Federal Aviation Administration share accounts are restructured in that brother or sister of the account owner, time period. If the accounts are the funds corresponding to that 14 CFR Part 39 restructured during the six-month grace beneficiary shall be treated as an [Docket No. 2003–CE–29–AD] period, or upon the expiration of the six individually owned account of the months if not restructured, the share owner, aggregated with any other RIN 2120–AA64 insurance coverage will be provided on individually owned accounts of the the basis of actual ownership of the owner, and insured up to $100,000. For Airworthiness Directives; PILATUS accounts in accordance with the example, if A establishes an account Aircraft Ltd. Model PC–7 Airplanes provisions of this part. The operation of payable upon death to his nephew, the AGENCY: this grace period, however, will not account would be insured as an Federal Aviation result in a reduction of coverage. individual account owned by A. Administration, DOT. (f) Continuation of separate share Similarly, if B establishes an account ACTION: Notice of proposed rulemaking insurance coverage after merger of payable upon death to her husband, son (NPRM). insured credit unions. Whenever the and nephew, two-thirds of the account SUMMARY: This document proposes to liability to pay the member accounts of balance would be eligible for revocable adopt a new airworthiness directive one or more insured credit unions is trust account coverage up to $200,000 (AD) that would apply to certain assumed by another insured credit corresponding to the two qualifying PILATUS Aircraft Ltd. (Pilatus) Model union, whether by merger, beneficiaries, the spouse and child. The PC–7 airplanes. This proposed AD consolidation, other statutory amount corresponding to the non- would require you to inspect the assumption or contract: qualifying beneficiary, the nephew, forward and aft dihedral fittings for (1) The insured status of the credit would be deemed to be owned by B as cracks and replace any cracked fitting. unions whose member account liability an individual account and insured This proposed AD would also require has been assumed terminates, for accordingly. purposes of this section, on the date of you to modify the aft dihedral fitting receipt by NCUA of satisfactory * * * * * and spar-cap bolt holes. This proposed evidence of the assumption; and 4. Section 745.9–1 is amended by AD is the result of mandatory (2) The separate insurance of member revising paragraph (c) to read as follows: continuing airworthiness information accounts assumed continues for six (MCAI) issued by the airworthiness § 745.9–1 Trust accounts. months from the date the assumption authority for Switzerland. The actions takes effect or, in the case of a share * * * * * specified by this proposed AD are certificate, the earliest maturity date (c) This section applies to trust intended to prevent cracks from after the six-month period. In the case interests created in Coverdell Education developing in the forward and aft of a share certificate that matures within Savings Accounts, formerly Education dihedral fittings, which could result in the six-month grace period that is IRAs, established in connection with failure of the wing in certain maneuvers. renewed at the same dollar amount, section 530 of the Internal Revenue Such failure could lead to loss of control either with or without accrued Code (26 U.S.C. 530). of the airplane.
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DATES: The Federal Aviation environmental, and energy aspects of manufactured in Switzerland and are Administration (FAA) must receive any this proposed rule that might suggest a type certificated for operation in the comments on this proposed rule on or need to modify the rule. You may view United States under the provisions of before August 4, 2003. all comments we receive before and section 21.29 of the Federal Aviation ADDRESSES: Submit comments to FAA, after the closing date of the rule in the Regulations (14 CFR 21.29) and the Central Region, Office of the Regional Rules Docket. We will file a report in applicable bilateral airworthiness Counsel, Attention: Rules Docket No. the Rules Docket that summarizes each agreement. 2003–CE–29–AD, 901 Locust, Room contact we have with the public that Pursuant to this bilateral 506, Kansas City, Missouri 64106. You concerns the substantive parts of this airworthiness agreement, the FOCA has may view any comments at this location proposed AD. kept FAA informed of the situation between 8 a.m. and 4 p.m., Monday How can I be sure FAA receives my described above. through Friday, except Federal holidays. comment? If you want FAA to You may also send comments acknowledge the receipt of your mailed The FAA’s Determination and an electronically to the following address: comments, you must include a self- Explanation of the Provisions of this 9–ACE–7–[email protected]. Comments addressed, stamped postcard. On the Proposed AD sent electronically must contain postcard, write ‘‘Comments to Docket What has FAA decided? The FAA has ‘‘Docket No. 2003–CE–29–AD’’ in the No. 2003–CE–29–AD.’’ We will date examined the findings of the FOCA; subject line. If you send comments stamp and mail the postcard back to reviewed all available information, electronically as attached electronic you. including the service information files, the files must be formatted in Discussion referenced above; and determined that: Microsoft Word 97 for Windows or —the unsafe condition referenced in ASCII text. What events have caused this You may get service information that proposed AD? The Federal Office for this document exists or could develop applies to this proposed AD from Civil Aviation (FOCA), which is the on other Pilatus Model PC–7 airplanes Pilatus Aircraft Ltd., Customer Liaison airworthiness authority for Switzerland, of the same type design that are on the Manager, CH–6371 Stans, Switzerland; recently notified FAA that an unsafe U.S. registry; telephone: +41 41 619 63 19; facsimile: condition may exist on certain Pilatus —the actions specified in the +41 41 619 6224; or from Pilatus Model PC–7 airplanes. The FOCA previously-referenced service Business Aircraft Ltd., Product Support reports that an operator of a similar information should be accomplished Department, 11755 Airport Way, aircraft type design, which uses on the affected airplanes; and Broomfield, Colorado 80021; telephone: identical dihedral fittings, reported a —AD action should be taken in order to (303) 465–9099; facsimile: (303) 465– crack in one fitting. An inspection of the correct this unsafe condition. 6040. You may also view this fleet revealed stress corrosion cracking What would this proposed AD information at the Rules Docket at the in six aft dihedral fittings. Each cracked require? This proposed AD would address above. fitting was found on airplanes that had require you to: FOR FURTHER INFORMATION CONTACT: logged more than 3,000 hours time-in- —inspect the forward and aft dihedral Doug Rudolph, Aerospace Engineer, service (TIS) or had been in service for fittings for cracks; 10 years or more. FAA, Small Airplane Directorate, 901 —replace any cracked fittings found; What are the consequences if the Locust, Room 301, Kansas City, and Missouri 64106; telephone: (816) 329– condition is not corrected? Cracks in the 4059; facsimile: (816) 329–4090. forward and aft dihedral fittings could —modify the aft dihedral fittings and spar-cap bolt holes. SUPPLEMENTARY INFORMATION: result in failure of the wing in certain maneuvers. Such failure could lead to How does the revision to 14 CFR part Comments Invited loss of control of the airplane. 39 affect this proposed AD? On July 10, How do I comment on this proposed Is there service information that 2002, FAA published a new version of AD? The FAA invites comments on this applies to this subject? Pilatus has 14 CFR part 39 (67 FR 47997, July 22, proposed rule. You may submit issued Pilatus PC–7 Service Bulletin No. 2002), which governs FAA’s AD system. whatever written data, views, or 57–006, Revision No. 3, dated January This regulation now includes material arguments you choose. You need to 15, 2003. that relates to special flight permits, include the proposed rule’s docket What are the provisions of this service alternative methods of compliance, and number and submit your comments to information? The service bulletin altered products. This material the address specified under the caption includes procedures for: previously was included in each ADDRESSES. We will consider all —inspecting the forward and aft individual AD. Since this material is comments received on or before the dihedral fittings for cracks; and included in 14 CFR part 39, we will not closing date. We may amend this —modifying the aft dihedral fitting and include it in future AD actions. proposed rule in light of comments spar-cap bolt holes. Cost Impact received. Factual information that What action did the FOCA take? The supports your ideas and suggestions is FOCA classified this service information How many airplanes would this extremely helpful in evaluating the as mandatory and issued Swiss AD proposed AD impact? We estimate that effectiveness of this proposed AD action Number HB 2003–196, dated May 12, this proposed AD affects 10 airplanes in and determining whether we need to 2003, in order to ensure the continued the U.S. registry. take additional rulemaking action. airworthiness of these airplanes in What would be the cost impact of this Are there any specific portions of this Switzerland. proposed AD on owners/operators of the proposed AD I should pay attention to? Was this in accordance with the affected airplanes? We estimate the The FAA specifically invites comments bilateral airworthiness agreement? following costs to accomplish the on the overall regulatory, economic, These airplane models are proposed actions of this AD:
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INSPECTIONS
Total cost on U.S. Labor cost Parts cost Total cost per airplane operators
3 workhours per fitting (4 fittings per airplane) × $60 per hour = Not applicable ...... $180 × 4 fittings per air- $720 × 10 = $7,200. $180 per fitting. plane = $720.
FORWARD DIHEDRAL FITTING REPLACEMENT
Labor cost Parts cost Total cost per airplane
93 workhours per fitting (2 fittings per airplane) × $60 per hour = $5,580 per fitting ...... $142 per replacement fitting $5,722 per fitting
AFT DIHEDRAL FITTING REPLACEMENT AND MODIFICATION
Labor cost Parts cost Total cost per airplane
20 workhours per fitting for replacement and modification (2 fittings $76 per replacement fitting $1,200 + $76 + $66 = $1,342 (labor, re- per airplane) × $60 per hour = $1,200 per fitting. and $66 for modification placement, and modification per fitting). bolts. 10 workhours per fitting for modification only (2 fittings per airplane) ...... $600 + $66 = $666 (labor and modification × $60 per hour = $600 per fitting. per fitting).
Compliance Time of This Proposed AD the relationship between the national Federal Aviation Regulations (14 CFR What would be the compliance time government and the States, or on the part 39) as follows: of this proposed AD? The compliance distribution of power and responsibilities among the various PART 39—AIRWORTHINESS time of this proposed AD is whichever DIRECTIVES occurs later: (1) upon the accumulation levels of government. Therefore, it is determined that this proposed rule of 3,000 hours time-in-service (TIS) on would not have federalism implications 1. The authority citation for part 39 the dihedral fittings or 10 years after under Executive Order 13132. continues to read as follows: installation of the dihedral fittings, Would this proposed AD involve a Authority: 49 U.S.C. 106(g), 40113, 44701. whichever occurs first; or (2) within 90 significant rule or regulatory action? For days after the effective date of the the reasons discussed above, I certify § 39.13 [Amended] proposed AD. that this proposed action: (1) Is not a 2. FAA amends § 39.13 by adding a Why is the compliance time of this ‘‘significant regulatory action’’ under proposed AD presented in both hours new airworthiness directive (AD) to Executive Order 12866; (2) is not a read as follows: TIS and calendar time? Cracking of the ‘‘significant rule’’ under DOT dihedral fittings on the affected Regulatory Policies and Procedures (44 Pilatus Aircraft Ltd.: Docket No. 2003–CE– airplanes is caused by stress corrosion, FR 11034, February 26, 1979); and (3) if 29–AD which starts as a result of high local promulgated, will not have a significant (a) What airplanes are affected by this AD? stress incurred through operation. economic impact, positive or negative, This AD affects Model PC–7 airplanes, Corrosion can then develop regardless on a substantial number of small entities manufacturer serial numbers (MSN) 101 of whether the airplane is in flight or on through 618, that are: under the criteria of the Regulatory (1) equipped with forward and aft dihedral the ground. The cracks may not be Flexibility Act. A copy of the draft noticed initially as a result of the stress fittings, part number (P/N) 111.34.07.469, regulatory evaluation prepared for this 111.34.07.470, 111.34.07.471, and P/N loads, but could then progress as a action has been placed in the Rules 111.34.07.472; and result of corrosion. The stress incurred Docket. A copy of it may be obtained by (2) certificated in any category. during flight operations or temperature contacting the Rules Docket at the (b) Who must comply with this AD? changes could then cause rapid crack location provided under the caption Anyone who wishes to operate any of the growth. In order to ensure that these ADDRESSES. airplanes identified in paragraph (a) of this stress corrosion cracks do not go AD must comply with this AD. undetected, a compliance time of List of Subjects in 14 CFR Part 39 (c) What problem does this AD address? specific hours TIS and calendar time is Air transportation, Aircraft, Aviation The actions specified by this AD are intended utilized. to prevent cracks from developing in the safety, Safety. forward and aft dihedral fittings, which Regulatory Impact The Proposed Amendment could result in failure of the wing in certain maneuvers. Such failure could lead to loss of Would this proposed AD impact Accordingly, under the authority control of the airplane. various entities? The regulations delegated to me by the Administrator, (d) What actions must I accomplish to proposed herein would not have a the Federal Aviation Administration address this problem? To address this substantial direct effect on the States, on proposes to amend part 39 of the problem, you must accomplish the following:
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Actions Compliance Procedures
(1) Accomplish the following inspections: At whichever of the following occurs later, un- Inspect in accordance with Pilatus PC–7 (i) Using Impedance-Plane Eddy-Current in- less already accomplished: upon the accu- Service Bulletin No. 57–006, Revision No. spection procedures, inspect the aft dihe- mulation of 3,000 hours time-in-service 3, dated January 15, 2003. dral fittings, P/N 111.34.07.469 and P/N (TIS) on the dihedral fittings or 10 years 111.34.07.470, for cracks; and after installation of the dihedral fittings, (ii) Using Radiographic inspection proce- whichever occurs first; or within 90 days dures, inspect the forward dihedral fittings, after the effective date of this AD. P/N 111.34.07.471 and P/N 111.34.07.472, for cracks.
(2) If a crack is found in any aft dihedral fittings, Prior to further flight after the inspection re- Modify in accordance with Pilatus PC–7 Serv- P/N 111.34.07.469 and/or P/N quired in paragraph (d)(1) of this AD. ice Bulletin No. 57–006, Revision No. 3, 111.34.07.470, replace with an improved fit- dated January 15, 2003. ting, P/N 557.10.09.071 and/or P/N 557.10.09.072 (as applicable or FAA-ap- proved equivalent P/N), and modify the spar- cap bolt holes.
(3) If no cracks are found in any aft dihedral fit- Prior to further flight after the inspection re- Modify in accordance with Pilatus PC–7 Serv- tings, P/N 111.34.07.469 and P/N quired in paragraph (d)(1) of this AD. ice Bulletin No. 57–006, Revision No. 3, 111.34.07.470, modify the fittings and the dated January 15, 2003. spar-cap bolt holes.
(4) If cracks are found in any forward dihedral Prior to further flight after the inspection re- Not applicable. fittings, P/N 111.34.07.471 and/or P/N quired in paragraph (d)(1) of this AD. 111.34.07.472, replace with a new part.
(5) If no cracks are found in any forward dihe- Not applicable. Not applicable. dral fittings, P/N 111.34.07.471 and P/N 111.34.07.472, no further action is required.
(6) Only install aft dihedral fittings that have a As of the effective date of this AD. Modify the spar-cap bolt holes in accordance P/N of 557.10.09.071 and P/N with Pilatus PC–7 Service Bulletin No. 57– 557.10.09.072. You must also accomplish the 006, Revision No. 3, dated January 15, spar-cap bolt hole modification. 2003.
(e) Can I comply with this AD in any other Issued in Kansas City, Missouri, on June yogurt; amend the standard of identity way? To use an alternative method of 26, 2003. for yogurt in numerous respects, compliance or adjust the compliance time, Michael Gallagher, including incorporation of provisions follow the procedures in 14 CFR 39.19. Send Manager, Small Airplane Directorate, Aircraft for lowfat and nonfat yogurt; and amend these requests to the Manager, Standards Certification Service. the standard of identity for cultured Office, Small Airplane Directorate. For [FR Doc. 03–16844 Filed 7–2–03; 8:45 am] milk in numerous respects, including information on any already approved BILLING CODE 4910–13–P allowing for the use of the alternate term alternative methods of compliance, contact ‘‘fermented milk.’’ We request comment Doug Rudolph, Aerospace Engineer, FAA, on whether the actions requested by the Small Airplane Directorate, 901 Locust, DEPARTMENT OF HEALTH AND petition would promote honesty and fair Room 301, Kansas City, Missouri 64106; HUMAN SERVICES dealing in the interest of consumers. telephone: (816) 329–4059; facsimile: (816) DATES: Submit written or electronic 329–4090. Food and Drug Administration (f) How do I get copies of the documents comments by October 1, 2003. ADDRESSES: Submit written comments referenced in this AD? You may get copies of 21 CFR Part 131 the documents referenced in this AD from to the Division of Dockets Management Pilatus Aircraft Ltd., Customer Liaison [Docket No. 00P–0685] (HFA–305), Food and Drug Manager, CH–6371 Stans, Switzerland; Administration, 5630 Fishers Lane, rm. telephone: +41 41 619 63 19; facsimile: +41 Milk and Cream Products and Yogurt 1061, Rockville, MD 20852. Submit 41 619 6224; or from Pilatus Business Products; Petition to Revoke electronic comments to http:// Aircraft Ltd., Product Support Department, Standards for Lowfat Yogurt and www.fda.gov/dockets/ecomments. The 11755 Airport Way, Broomfield, Colorado Nonfat Yogurt and to Amend petition is available for review at the 80021; telephone: (303) 465–9099; facsimile: Standards for Yogurt and Cultured Milk Division of Dockets Management or (303) 465–6040. You may view these AGENCY: Food and Drug Administration, electronically on FDA’s Web site at documents at FAA, Central Region, Office of HHS. http://www.fda.gov/ohrms/dockets/98fr/ the Regional Counsel, 901 Locust, Room 506, 00p-0685-cp00001.pdf. You may also ACTION: Advance notice of proposed Kansas City, Missouri 64106. request a copy of the petition from the rulemaking. Note: The subject of this AD is addressed Division of Dockets Management. in Swiss AD HB 2003–196, dated May 12, SUMMARY: The Food and Drug FOR FURTHER INFORMATION CONTACT: Ritu 2003. Administration (FDA) is announcing Nalubola, Office of Nutritional Products, that a petition has been filed requesting Labeling, and Dietary Supplements, that the agency revoke the standards of Center for Food Safety and Applied identity for lowfat yogurt and nonfat Nutrition (HFS–820), Food and Drug
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Administration, 5100 Paint Branch added for a nutritional or functional expect yogurt to contain a significant Pkwy., College Park, MD 20740, 301– purpose. amount of these cultures when they 436–2371. FDA is publishing this document in purchase the product, but have no SUPPLEMENTARY INFORMATION: accordance with section 701(e)(1) of the assurance under the current standard Federal Food, Drug, and Cosmetic Act that the yogurt will contain such I. The Petition (the act) (21 U.S.C. 371(e)(1)), which cultures. NYA maintained that its The National Yogurt Association directs the Secretary of Health and proposed standard recognizes the (NYA) submitted a citizen petition on Human Services to publish proposals defining characteristics of yogurt and February 18, 2000, requesting that FDA made by petition to amend or repeal a establishes that yogurt is a product of revoke the standards of identity in part dairy food standard, so long as the fermentation of certain characterizing 131 (21 CFR part 131) for lowfat yogurt petition includes reasonable grounds for cultures, and that the finished food (§ 131.203) and nonfat yogurt the action requested, and to provide contains a significant quantity of these (§ 131.206), amend the current standard interested persons with an opportunity live and active cultures consistent with of identity for yogurt (§ 131.200), and to present their views. FDA tentatively consumer expectations. amend the standard of identity for finds that NYA’s petition presents NYA also stated that the proposed cultured milk (§ 131.112). reasonable grounds. Therefore, FDA amendments to the standard for In its petition, NYA stated that its requests comment on whether the cultured milk would further serve proposed standard establishes that: (1) actions proposed in the petition would consumer interest. Under its proposed promote honesty and fair dealing in the Yogurt is a food product containing a actions, NYA maintained that foods interest of consumers. minimum level of certain live and active otherwise satisfying the standard of cultures; (2) takes into account current II. Grounds for the Suggested Changes identity for yogurt that do not contain industry practices; (3) recognizes the to Yogurt, Lowfat Yogurt, Nonfat the required level of the characterizing need to allow for use of future Yogurt, and Cultured Milk Standards live and active cultures would not be named ‘‘yogurt’’; rather they would be technologies; and (4) establishes a clear, NYA pointed out that several consistent, modernized, and flexible provisions of the standards of identity named ‘‘cultured milk’’ or ‘‘fermented yogurt standard that would benefit both for cultured milk, yogurt, lowfat yogurt, milk.’’ Consequently, NYA stated, industry and consumers. Specifically, and nonfat yogurt are currently stayed consumers would not be misled into NYA’s proposed yogurt standard: (1) (47 FR 41519, September 21, 1982). The believing that these foods contain a Requires a minimum level of active stayed provisions are: (1) Those significant amount of live and active cultures of 107 colony-forming units provisions of §§ 131.112(d)(1), cultures. (CFU) per gram (/g); (2) requires an 131.200(c)(1), 131.203(c)(1), and NYA also maintained that its proposal acidity of pH 4.6 or lower; (3) requires 131.206(c)(1) that restrict the type of would ensure that aspects of yogurt a minimum level of total dairy milk-derived ingredients that may be labeling, such as the use of nutrient ingredients of 51 percent; (4) provides used, to those so named, to increase the content claims, are consistent with the for preculture homogenization and nonfat solids content of cultured milk requirements of the Nutrition Labeling pasteurization; (5) permits the use of and yogurts; (2) those provisions of and Education Act of 1990 (NLEA) reconstituted milk and whey protein §§ 131.200(a), 131.203(a), and (Public Law 101–535). NYA stated that concentrate (WPC) as ‘‘standard dairy 131.206(a) that exclude the use of its proposed standard maintains the ingredients’’; (6) provides for the use of reconstituted dairy ingredients as the three yogurt types (full fat, lowfat, and any milk-derived ingredients under basic ingredient in the manufacture of nonfat yogurts) so manufacturers can optional dairy ingredients; (7) permits yogurts; (3) those provisions of continue to make lowfat and nonfat the use of safe and suitable sweeteners, §§ 131.200(c), 131.203(c), and yogurts without meeting the nutritional emulsifiers, and preservatives; (8) 131.206(c) insofar as they exclude the equivalence requirement as described in permits the optional use of any safe and addition of preservatives to yogurts; (4) § 130.10 (21 CFR 130.10). In addition, suitable ingredients added for those provisions of §§ 131.200(a), NYA maintained that its proposed nutritional or functional purpose; and 131.203(a), and 131.206(a) that set a standard would change the milkfat (9) makes provisions for lowfat and minimum titratable acidity of 0.9 content requirements of lowfat and nonfat yogurts based on total fat content percent, expressed as lactic acid; and (5) nonfat yogurts to ‘‘directly parallel’’ the of the food per reference amount the provision in § 131.200(a) that the nutrient content claim requirements for customarily consumed (RACC). In 3.25 percent minimum milkfat level the terms ‘‘lowfat’’ and ‘‘nonfat’’ addition, NYA requested that the applies to yogurt after the addition of established under the NLEA (21 CFR current standard of identity for cultured one or more of the optional sources of 101.62(b)). milk be amended to ‘‘conform’’ to the milk solids not fat listed in Additionally, NYA noted that food proposed standard for yogurt. § 131.200(c)(1). NYA contended that technology has advanced and industry Specifically, NYA’s proposed these stayed provisions create multiple practices related to yogurt amendments to the cultured milk gaps in the standards for which no manufacturing have changed since the standard: (1) Provide for the alternate guidelines exist and, as a result, the yogurt standards have been in place. term ‘‘fermented milk’’; (2) require a integrity of the food ‘‘yogurt’’ is not Consequently, NYA asserted that the minimum level of total dairy ingredients maintained. current yogurt standards impede the of 51 percent; (3) permit the use of According to NYA, yogurt has been yogurt industry and do not allow reconstituted milk and WPC as characterized for centuries by its live manufacturers to implement advances ‘‘standard dairy ingredients’’; (4) and active cultures, and thus a in food technology. NYA stated that its provide for the use of any milk-derived minimum content of live and active proposed standard establishes a ingredient under optional dairy cultures is crucial to the yogurt standard modernized, flexible standard of ingredients; (5) permit the use of safe of identity to promote honesty and fair identity for yogurt, taking into account and suitable sweeteners, emulsifiers, dealing in the interest of consumers. current industry practices and and preservatives; and (6) permit the NYA noted that consumers identify recognizing the need to allow for use of use of any safe and suitable ingredients yogurt with live and active cultures and future technologies.
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III. Matters of Particular Interest to paragraphs FDA discusses some of the reflects the lower end of titratable FDA amendments requested by NYA. acidity levels found in common 1. The standards for yogurt and FDA requests that interested persons industry practice. NYA also stated that cultured milk proposed by NYA permit submit data and information concerning measuring pH, rather than titratable the use of any safe and suitable the need for, and the appropriateness of, acidity expressed as lactic acid, reflects ingredient added for a nutritional or revoking the standards for lowfat and the current industry practice and is a functional purpose. NYA states that this nonfat yogurt and amending the more accurate and convenient method provision is necessary to maintain of measuring acidity. FDA seeks standards for yogurt and cultured milk. enough flexibility in the standards to comment both on the acidity level FDA specifically requests comment on permit the use of novel ingredients as proposed by NYA and the use of pH the following provisions set forth in the they are developed. FDA recognizes the rather than titratable acidity. petition: need for food standards to permit 5. FDA notes NYA’s assertion that 1. A single standard of identity for flexibility in food technology, so long as consumers expect yogurt to contain yogurt, which includes provisions for that technology does not alter the basic significant amounts of live and active lowfat and nonfat yogurts; 7 nature or essential characteristics of the cultures, as well as NYA’s proposed 2. A minimum of 10 CFU/g of live food. The existing regulatory framework requirement to measure live and active and active characterizing cultures at the governing standardized foods already cultures at the time of manufacture. time of manufacture of yogurt; provides for the addition of substances NYA proposed that manufacturers 3. An acidity of pH 4.6 or lower, for a nutritional purpose. Under the ‘‘may’’ test their yogurt products to rather than the current requirement of provisions of § 130.10, standardized demonstrate that the products, under titratable acidity expressed as lactic acid foods may be modified to contain proper distribution and storage in yogurt; nutrients not specifically permitted by conditions, would be expected to 4. The use of optional milk-derived the relevant standard of identity and to contain at least 106 CFU/g of live and ingredients after pasteurization and make an expressed nutrient content active cultures through the culturing of yogurt; claim defined by FDA regulation. FDA manufacturer’s designated code life (i.e., 5. The use of reconstituted dairy also notes that flexibility in the use of shelf life) for the product and at the ingredients and WPC as basic dairy ingredients for a functional purpose anticipated time of consumption. ingredients in yogurt, and the may be achieved by specifying the However, as a legal requirement, NYA specifications related to WPC, when ingredients by functional use category, proposed a minimum of 107 CFU/g at used; e.g., ‘‘emulsifiers’’ or ‘‘preservatives,’’ the time of manufacture because, NYA 6. The optional use of any milk- rather than by listing the specific maintained, once the products enter the derived ingredient that provides a ingredients. FDA seeks comment on the stream of commerce, products are technical or functional purpose in need for any functional ingredient subject to different distribution and yogurt; categories, in addition to the ones storage conditions that are not within 7. The minimum dairy ingredients proposed by the petition, in the the manufacturer’s control. FDA seeks content requirement of 51 percent of the manufacture of yogurt. comment on: (1) Whether the presence total weight of yogurt; 2. NYA proposed amendments to the of live and active cultures is an essential 8. The use of any safe and suitable current standard of identity for cultured characteristic of yogurt and, if so, in nutritive or nonnutritive sweeteners in milk (§ 131.112) to provide for the what amounts; (2) the appropriateness yogurt; alternate term ‘‘fermented milk’’ and to of NYA’s proposed provision that 9. The use of safe and suitable allow the use of currently prohibited manufacturers ‘‘may’’ conduct tests to emulsifiers in yogurt; ingredients that would be permitted by ensure the presence of live and active 10. The use of safe and suitable NYA’s proposed standard for yogurt. cultures through the assigned code life preservatives in yogurt; NYA stated that under its proposed for the product; and (3) whether NYA’s 11. The use of any safe and suitable amendments, if the food otherwise proposed standard of identity for yogurt ingredient added for a nutritional or meets the yogurt standard of identity would adequately ensure the presence functional purpose in yogurt; but does not contain the characterizing of appropriate amounts of live and 12. The use of the descriptor ‘‘nonfat’’ cultures at the required levels, then the active cultures in yogurt throughout the on a yogurt that may contain less than food qualifies as cultured milk or shelf life of the product and at the point 0.5 g of total fat per RACC (i.e., 225 g fermented milk. The standard of of purchase or consumption. FDA also for yogurt (21 CFR 101.12)); identity for cultured milk has been in seeks comment on any alternative 13. The use of the descriptor ‘‘lowfat’’ place for several decades. In light of provisions that may be needed to fulfill on a yogurt that may contain at least 0.5 consumer experience with the standard this requirement. g but not more than 3.0 g total fat per for cultured milk, FDA solicits comment Finally, FDA seeks comment on RACC; and on the need to amend it and the vitamin A fortification. FDA previously 14. The need to amend the standard appropriateness of the amendments proposed to revoke a number of lowfat for cultured milk to provide for the requested by NYA. and nonfat standards in parts 131 and alternate term ‘‘fermented milk’’ and to 3. The current standards for yogurt, 133 (21 CFR part 133) (i.e., §§ 131.122 make it consistent with any changes lowfat yogurt, and nonfat yogurt permit (Sweetened condensed skimmed milk), made in the standard for yogurt, and the heat treatment after culturing, with the 131.123 (Lowfat dry milk), 131.132 appropriateness of the proposed requirement that such treatment be (Evaporated skimmed milk), 131.135 amendments to the standard for declared in the name of the food. FDA (Lowfat milk), 131.136 (Acidified lowfat cultured milk. notes that NYA’s proposed standard milk), 131.138 (Cultured lowfat milk), After reviewing the comments does not allow for heat treatment after 131.143 (Skim milk), 131.144 (Acidified received, FDA will determine the need culturing, and seeks comment on the skim milk), 131.146 (Cultured skim for, and appropriateness of, each of the appropriateness of omitting this milk), 131.185 (Sour half-and-half), amendments requested by NYA and will provision. 131.187 (Acidified sour half-and-half), decide what actions are appropriate. To 4. NYA proposed a maximum pH of 131.203 (Lowfat yogurt), 131.206 facilitate comment, in the following 4.6 for yogurt and stated that this level (Nonfat yogurt), and 133.131 (Lowfat
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cottage cheese) (60 FR 56541, November standard dairy ingredients specified in 700, Washington, DC). Subtract the milkfat 9, 1995)) to ensure that the use of paragraph (b) of this section. Yogurt contains content (as determined by the method nutrient content claims in the labeling at least 107 CFU/g active yogurt cultures, at prescribed in section 16.059 ‘‘Roese-Gottlieb of these products would be consistent the time of manufacture, of the characterizing Method (Reference method) (11)—Official lactic acid-producing bacteria, Lactobacillus Final Action, under the heading ‘‘Fat’’) from with the provisions of the NLEA. In the delbrueckii subsp. Bulgaricus and the total milk solids content (as determined final rule (61 FR 58991, November 20, Streptococcus thermophilus, and the by the method prescribed in section 16.032, 1996), FDA revoked all of the previously manufacturer may have records ‘‘Method I—Official Final Action,’’ under the mentioned standards except for lowfat demonstrating that, under proper conditions heading ‘‘Total Solids’’). yogurt and nonfat yogurt. FDA delayed of distribution and storage, the yogurt will (3) pH—As determined under § 114.90(a) final action on its proposal to revoke contain at least 106 CFU/g live and active of this chapter, ‘‘Potentiometric method for these standards for 120 days because of cultures through the manufacturer’s assigned the determination of pH.’’ the technical difficulties and economic code life (i.e., shelf life) for the product. One (e) Nomenclature. (1) If the food contains or more of the optional ingredients specified the amount of live and active Lactobacillus considerations associated with their in paragraph (c) of this section may also be delbrueckii subsp. Bulgaricus and revocation (61 FR 58991 at 58999). FDA added. All ingredients used are safe and Streptococcus thermophilus cultures as acknowledged that if the standards for suitable. Yogurt, before the addition of indicated in paragraph (a) of this section, the lowfat and nonfat yogurts were revoked, optional ingredients specified in paragraph food is ‘‘yogurt,’’ except: modifying the standardized food yogurt (c) of this section, contains not less than 8.25 (i) If the finished food complies with the to make the nutrient content claims percent milk solids not fat from the standard requirements of § 101.62(b)(4)(i) of this ‘‘lowfat’’ or ‘‘nonfat’’ under the dairy ingredients specified in paragraph (b) chapter, and is not ‘‘lowfat yogurt’’ or provisions of § 130.10 would require of this section, and has a pH of 4.6 or lower. ‘‘nonfat yogurt,’’ then the food must comply Dairy ingredients comprise at least 51 with § 101.62(b)(4)(ii) of this chapter, and the vitamin A fortification to make the percent of the food’s overall ingredients by name of the food is ‘‘reduced fat yogurt.’’ product nutritionally equivalent to full weight. The food may be homogenized and (ii) If the finished food contains at least 0.5 fat yogurt. FDA also acknowledged that the ingredients specified in paragraph (b) of g, but not more than 3.0 g, total fat per RACC, such a fortification requirement could this section shall be pasteurized or ultra- then the name of the food is ‘‘lowfat yogurt.’’ potentially result in significant pasteurized prior to the addition of the (iii) If the finished food contains less than relabeling, reformulation, and characterizing yogurt bacterial cultures. 0.5 g total fat per RACC, the name of the food equipment costs to manufacturers. The (b) Standard dairy ingredients. Cream, is ‘‘nonfat yogurt.’’ agency had hoped that the 120-day milk, partially skimmed milk, skim milk, or (2) The name of the food shall be deferral would provide an appropriate the reconstituted versions of these standard accompanied by a declaration indicating the dairy ingredients may be used alone or in presence of any characterizing flavoring as balance between the problem the combination. Whey protein concentrate specified in § 101.22 of this chapter. industry was facing and consumers’ (WPC), minimum protein concentrate 34 (3) The following terms shall accompany interest in consistently and fairly percent, may be used if the total quantity of the name of the food wherever it appears on labeled foods. Unfortunately, this issue WPC used in this paragraph and paragraph the principal display panel or panels of the has not been resolved. According to the (c) of this section does not result in a label in letters not less than one-half of the yogurt standard proposed by NYA, quantity of WPC that exceeds 25 percent of height of the letters used in such name: manufacturers would continue to be the total milk solids not fat. When one or (i) The word ‘‘sweetened’’ if a sweetener is able to make lowfat and nonfat yogurts more of the ingredients specified in this added without the addition of characterizing without having to meet the nutritional paragraph is used, it shall be included in the flavor. culturing process. (ii) The phrase ‘‘vitamin A’’ or ‘‘vitamin A equivalence requirement. FDA seeks (c) Optional dairy ingredients. (1) Dairy added,’’ or ‘‘vitamin D’’ or ‘‘vitamin D comment on whether the yogurt ingredients. Any milk-derived ingredients added,’’ as appropriate. The word ‘‘vitamin’’ industry is better able and equipped to used for technical or functional purposes. may be abbreviated ‘‘vit.’’ meet the nutritional equivalence (2) Optional safe and suitable cultures, in (f) Declaration of ingredients. Each of the requirements of § 130.10 than it was in addition to the characterizing cultures. ingredients used in the food shall be declared 1996 when FDA deferred action on this (3) Safe and suitable sweeteners. on the label as required by the applicable issue. FDA also seeks comment on the (4) Flavoring ingredients. sections of parts 101 and 130 of this chapter. need and appropriateness of continuing (5) Color additives. NYA’s suggested standard of identity to exempt yogurt from the nutritional (6) Stabilizers and emulsifiers. for cultured milk is as follows: (7) Preservatives. equivalence requirement, unlike other (8) Vitamins and minerals. Section 131.112 Cultured Milk/Fermented standardized foods making lowfat and (i) If added, vitamin A shall be present in Milk. nonfat nutrient content claims. a minimum quantity of 500 International (a) Description. Cultured milk or fermented IV. NYA Requested Amendments Units (IU) per reference amount customarily milk is the food produced by culturing one consumed (RACC). or more of the standard dairy ingredients The requested amendments of the (ii) If added, vitamin D shall be present in specified in paragraph (b) of this section with yogurt standard and the cultured milk a minimum quantity of 100 IU per RACC. characterizing microbial organisms. One or standard submitted by NYA are set forth (9) Any safe and suitable ingredients added more of the optional ingredients specified in in the following paragraphs. The for nutritional or functional purposes. paragraph (c) of this section may also be following language is as suggested by (d) Methods of analysis. (1) Enumeration of added. All ingredients used are safe and NYA; FDA has made only minor live and active cultures—As determined by suitable. Cultured milk or fermented milk, the method prescribed by the International before the addition of optional ingredients nonsubstantive changes. FDA will Dairy Federation. specified in paragraph (c) of this section, evaluate the need and appropriateness (2) Milk solids not fat content—Calculated contains not less than 8.25 percent milk of these regulations proposed by NYA using the following methods from the solids not fat from the standard dairy following the receipt of public ‘‘Official Methods of Analysis of the ingredients specified in paragraph (b) of this comments. Association of Official Analytical Chemists,’’ section, and has a titratable acidity of not less NYA’s suggested standard of identity 15th Ed. (Copies are available from the than 0.5 percent, expressed as lactic acid, for yogurt is as follows: Association of Official Analytical Chemists, before the addition of bulky flavors. Dairy 481 North Frederick Ave., suite 500, ingredients comprise at least 51 percent of Section 131.200 Yogurt. Gaithersburg, MD 20877–2417, or available the food’s overall ingredients by weight. The (a) Description. Yogurt is the food for inspection at the Office of the Federal food may be homogenized and the produced by culturing one or more of the Register, 800 North Capitol St., NW., suite ingredients specified in paragraph (b) of this
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section shall be pasteurized or ultra- (ii) If the finished food contains at least 0.5 379e), and under the authority of the pasteurized prior to the addition of the g, but not more than 3.0 g, total fat per RACC, Commissioner of Food and Drugs, as microbial cultures. then name of the food is ‘‘lowfat fermented redelegated to the Director, Center for (b) Standard dairy ingredients. Cream, milk’’ or ‘‘lowfat cultured milk.’’ Food Safety and Applied Nutrition. milk, partially skimmed milk, skim milk, or (iii) If the finished food contains less than the reconstituted versions of any of these 0.5 g total fat per RACC, the name of the food Dated: June 3, 2003. standard dairy ingredients may be used. is ‘‘nonfat fermented milk’’ or ‘‘nonfat L. Robert Lake, Whey protein concentrate (WPC), minimum cultured milk.’’ Director, Office of Regulations and Policy, protein concentrate 34 percent, may be used (2) The name of the food shall be Center for Food Safety and Applied Nutrition. if the total quantity of WPC used in this accompanied by a declaration indicating the [FR Doc. 03–16789 Filed 7–2–03; 8:45 am] paragraph and paragraph (c) of this section presence of any characterizing flavoring as does not result in a quantity of WPC that specified in § 101.22 of this chapter. BILLING CODE 4160–01–S exceeds 25 percent of the total milk solids (3) The name of the food shall be not fat. When one or more of the ingredients accompanied by a declaration such as a specified in this paragraph is used, it shall traditional name of the food or the generic DEPARTMENT OF LABOR be included in the culturing process. name of the organisms used, thereby (c) Optional ingredients. (1) Dairy indicating the presence of the characterizing Occupational Safety and Health ingredients. Any milk-derived ingredients microbial organisms or ingredients, e.g., Administration used for technical or functional purposes. ‘‘kefir cultured milk,’’ ‘‘acidophilus (2) Aroma- and flavor-producing microbial fermented milk,’’ or when characterizing 29 CFR Part 1926 culture. ingredients such as those in paragraphs (3) Safe and suitable sweeteners. (c)(2), (c)(9), (c)(10), and (c)(11) of this [Docket No. S–030] (4) Flavoring ingredients. section and lactic acid-producing organisms (5) Color additives that do not impart a RIN 1218–AC01 are used, the food may be named ‘‘cultured color simulating that of milkfat or butterfat. buttermilk.’’ (6) Stabilizers and emulsifiers. Safety Standards for Cranes and (4) The following terms shall accompany (7) Preservatives. Derricks (8) Vitamins and minerals. the name of the food wherever it appears on (i) If added, vitamin A shall be present in the principal display panel or panels of the AGENCY: Occupational Safety and Health a minimum quantity of 500 IU per RACC. label in letters not less than one-half of the Administration (OSHA), U.S. (ii) If added, vitamin D shall be present in height of the letters used in such name: Department of Labor (i) The word ‘‘sweetened’’ if a sweetener is a minimum quantity of 100 IU per RACC. ACTION: Notice of final membership list (9) Butterfat or milkfat, which may or may added without the addition of characterizing not contain color additives, in the form of flavoring. for Negotiated Rulemaking Advisory flakes or granules. (ii) The phrase ‘‘vitamin A’’ or ‘‘vitamin A Committee. (10) Salt. added,’’ or ‘‘vitamin D’’ or ‘‘vitamin D SUMMARY: (11) Citric acid, in a maximum amount of added,’’ or ‘‘vitamin A and D added,’’ as The Occupational Safety and 0.15 percent by weight of the milk used, or appropriate. The word ‘‘vitamin’’ may be Health Administration (OSHA) is an equivalent amount of sodium citrate, as a abbreviated ‘‘vit.’’ issuing a final membership list of the flavor precursor. (5) The parenthetical phrase ‘‘(heat-treated Crane and Derrick Negotiated (12) Any safe and suitable ingredients after culturing)’’ shall follow the name of the Rulemaking Advisory Committee (C- added for nutritional or functional purposes. food if the dairy ingredients have been heat- DAC). treated after culturing. (d) Methods of analysis. (1) Milk solids not COMMENTS: Written comments on the (f) Declaration of ingredients. Each of the fat content—Calculated using the following committee’s proceedings may be methods from the ‘‘Official Methods of ingredients used in the food shall be declared Analysis of the Association of Official on the label as required by the applicable submitted to the Crane and Derrick Analytical Chemists,’’ 15th Ed. (Copies are sections of parts 101 and 130 of this chapter. Negotiated Rulemaking Advisory available from the Association of Official Committee, Docket No. S–030, Analytical Chemists, 481 North Frederick V. Comments including additional materials and Ave., suite 500, Gaithersburg, MD 20877– Interested persons may submit to the attachments, in any of three ways: hard 2417, or available for inspection at the Office Division of Dockets Management (see copy, facsimile and electronic of the Federal Register, 800 North Capitol St., ADDRESSES) written or electronic transmission. NW., suite 700, Washington, DC). Subtract comments regarding this document. the milkfat content (as determined by the ADDRESSES: Mail: You must submit method prescribed in section 16.059 ‘‘Roese- Submit a single copy of electronic three copies of your comments on Gottlieb Method (Reference method) (11)— comments or two paper copies of any committee proceedings and attachments Official Final Action, under the heading mailed comments, except that to the OSHA Docket Office, Docket No. ‘‘Fat’’) from the total milk solids content (as individuals may submit one paper copy. S–030, U.S. Department of Labor, Room determined by the method prescribed in Comments are to be identified with the N–2625, 200 Constitution Avenue, NW., section 16.032, ‘‘Method I—Official Final docket number found in brackets in the Washington, DC 20210. The OSHA Action,’’ under the heading ‘‘Total Solids’’). heading of this document. If you base Docket Office and Department of Labor (2) Titratable acidity—As determined by your comments on scientific evidence or the method prescribed in section 16.023, hours of operation are 8:15 a.m. to 4:45 ‘‘Acidity (2)—Official Final Action,’’ or by an data, please submit copies of the p.m. Note that receipt of comments equivalent potentiometric method. specific information along with your submitted by mail may be delayed by (e) Nomenclature. (1) The name of the food comments. The petition and received several weeks. is ‘‘cultured milk’’ or ‘‘fermented milk,’’ comments may be seen in the Division Facsimile (FAX): If your comments, except: of Dockets Management between 9 a.m. including any attachments, are 10 pages (i) If the finished food complies with the and 4 p.m., Monday through Friday. or fewer, you may fax them to the OSHA requirements of § 101.62(b)(4)(i) of this Docket Office, Docket No. S–030, at chapter, and is not ‘‘lowfat fermented milk’’ VI. Authority (202) 693–1648. or ‘‘lowfat cultured milk’’ or ‘‘nonfat This advance notice of proposed fermented milk’’ or ‘‘nonfat cultured milk,’’ Electronic transmission: You may then the food must comply with rulemaking is issued under sections submit comments through the Internet § 101.62(b)(4)(ii) of this chapter, and the 201, 401, 403, 409, 701, and 721 of the at http://ecomments.osha.gov. name of the food is ‘‘reduced fat fermented Federal Food, Drug, and Cosmetic Act Please note that you cannot attach milk’’ or ‘‘reduced fat cultured milk.’’ (21 U.S.C. 321, 341, 343, 348, 371, and materials, such as studies or journal
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articles, to electronic comments. If you committee for cranes and derricks cranes. However, since Manitowoc have additional materials, you must (volume 67 of the Federal Register, page owns Grove, a major manufacturer of submit three copies of them to the 46612). The notice requested comments hydraulic cranes, their member will OSHA Docket Office at the address on the appropriateness of using represent that interest. Also, Link-Belt above. The additional materials must negotiated rulemaking to develop a manufacturers hydraulic cranes, so with clearly identify your electronic proposed rule for cranes and derricks the addition of Mr. McGrew, the comments by name, date, subject and used in construction and requested interests of manufacturers of hydraulic docket number so we can attach the nominations for membership on the telescoping boom cranes will be materials to your electronic comments. Committee. In addition, the notice represented. All comments and submissions will described the negotiated rulemaking That commenter also asserted that the be available for inspection and copying process and identified some key issues committee should have a representative at the OSHA Docket Office at the anticipated to be addressed in the of an ‘‘independent’’ trainer. The address above. Comments and negotiation. proposed list included David Ritchie of submissions posted on OSHA’s Fifty-five nominations for The St. Paul Companies, who has Webpage are available at www.osha.gov. membership on the Committee and extensive experience as a trainer. The Please do not include personal several comments were received during commenter did not explain why the information (such as social security the comment period. There was broad interest of trainers can only be numbers and birth dates) in support for using negotiated rulemaking represented by an independent trainer. submissions. Contact the OSHA Docket to update the standard and OSHA Accordingly, the Agency concludes that Office at (202)-693–2350 for information decided to go forward with the the trainer interest is adequately about materials not available through negotiated rulemaking process. represented. the OSHA Webpage and for assistance One commenter (Ex. 7–4) stated that II. Discussion of Comments on the cranes and derricks are used extensively in using the Webpage to locate docket Proposed Membership List submissions. in marine construction (bridge, dock, The Agency published a proposed outfall, pipeline and dredging work) and FOR FURTHER INFORMATION CONTACT: For membership list and requested public that the marine construction general information and press inquiries, comment (68 FR 9036, February 27, environment is very different from a contact Ms. Bonnie Friedman, OSHA, 2003). In response to the notice of landside environment. He asked that a Office of Public Affairs, Room N–3647, proposed members, OSHA received 29 representative of the marine U.S. Department of Labor, 200 sets of comments. Of the comments construction industry be added. He also Constitution Avenue, NW., Washington, received, 13 supported OSHA’s noted that, ‘‘in lieu of appointing a DC 20210; telephone (202) 693–1900. proposed member list and 16 asked for marine construction representative to For technical inquiries contact Mr. individuals to be added to the list. the committee, we request that OSHA Michael Buchet, OSHA, Office of Below is a discussion of the comments provide some vehicle to ensure that Construction Standards and Guidance, that recommended adding members to marine construction interests may offer Room N–3468, U.S. Department of the committee. valuable input to the negotiated Labor, 200 Constitution Avenue, NW., Three commenters (Exs. 6–1, 7–7 and rulemaking committee. * * *’’ Washington, DC 20210; telephone (202) 7–13) indicated that there should be an OSHA believes that the marine 693–2020. For additional copies of this additional representative from the construction interest can effectively Federal Register notice, contact OSHA, mobile crane manufacturing industry. In form coalitions with other committee Office of Publications, Room N–3101, their view there was an imbalance in the members. In addition, the marine U.S. Department of Labor, 200 proposed committee list with respect to construction interest will have ample Constitution Avenue, NW, Washington, the number of manufacturing opportunities to present information to DC 20210; telephone (202) 693–1888. representatives relative to the number of and work with the C-DAC committee as Electronic copies of this Federal user representatives. The proposed issues relating to that type of work arise. Register notice, as well as news releases committee included a representative This type of information can be and other relevant documents, are from Manitowoc Cranes, Inc. OSHA provided at the public meetings of the available at OSHA’s web page on the agrees with these commenters and has full committee and in committee Internet at http://www.osha.gov. decided to add Bernie McGrew of Link- workgroups. The C–DAC Facilitator, Susan Belt Construction Equipment Company Seven commenters (Exs. 6–7, 6–9, 6– Podziba, can be reached at Susan to the Committee to provide additional 10, 6–11, 6–13, 6–14 and 6–15) objected Podziba and Associates, 21 Orchard technical expertise on the design, to the composition of the committee Road, Brookline, MA 02445; Telephone manufacturing and testing of mobile stating that the Specialized Carriers & (617) 738–5320, Fax (617) 738–6911. cranes. Rigging Association’s (SC&RA) nominee SUPPLEMENTARY INFORMATION: One industry commenter (Ex. 7–12) should be added to the committee. The suggested that the committee needs a SC&RA is an association with a large, Table of Contents representative from the Department of broad-based membership of crane- I. Background Defense and in particular the Navy related businesses. The comments II. Discussion of Comments on the Proposed Nuclear Crane Program. The Agency, reflect a cross-section of industry Membership List III. Final Committee Membership List however, is not aware of aspects of support for including the SC&RA IV. Procedure for Adding and Replacing cranes used by the Navy that cannot be nominee, Doug Williams of Buckner Members addressed by the proposed members of Heavylift Cranes. The Agency has V. Anticipated Key Issues for Negotiation the Committee. Furthermore, no decided to add Mr. Williams as a VI. Authority comments were received from the Navy member of the committee. objecting to the proposed membership One commenter (Ex. 6–6) stated that I. Background list. the proposed committee did not have On July 16, 2002, OSHA published a One commenter (Ex. 7–9) asserted sufficient representation from ‘‘public Federal Register notice of intent to that the proposed committee did not entities;’’ it appears from the context of establish a negotiated rulemaking represent hydraulic telescoping boom the comment that the commenter is
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referring to industry consensus groups. Bernie McGrew, Link-Belt Construction Training and Operator Testing The Agency believes that the final Equipment 2651 Palumbo Drive, P.O. David Ritchie, The St. Paul Companies, membership list represents a broad Box 13600, Lexington, KY 40583 P.O. Box 1419, Bastrop, TX 78602 cross-section of the industry. The Larry Means, Means Engineering & commenter has not demonstrated why Consulting, P.C., 44 South Carriage Power Line Owners the interests of the individuals who Drive, St. Joseph, MO 64506–1233 Michael Hyland, American Public serve on consensus groups, or the Lessors/Maintenance Power Association, 2301 M Street, consensus groups themselves, would be NW., Washington, DC 20037 unable to form coalitions with one or William Smith, Maxim Crane Works more of the named members. 508-C DiGiulian Blvd., Glen Burnie, Insurance One commenter (Ex. 6–5) suggested MD 21061 Charles Yorio, Acordia, Two Gateway adding a member to the committee to Users—Employers Center, Suite 1900, 603 Stanwix represent manufacturers of specialized Street, Pittsburgh, PA 15222 safety equipment and devices, such as Stephen P. Charman, Viacom Outdoor, equipment used to warn those in the Inc., 49–29 Maspeth Ave., Maspeth, IV. Procedure for Adding and vicinity of the crane or to detect NY 11378 Replacing Members hazards. Mr. Means was named to the Joseph Collins, Zachry Construction A. Additional Members committee to represent the interests of Corporation, P.O. Box 240130, San During the course of the Committee’s crane equipment suppliers. The Antonio, TX 78224 negotiations, an unanticipated issue commenter has not indicated why Brian Murphy, Sundt Corporation, 4101 significantly affecting one or more manufacturers of safety devices cannot E Irvington Road, P.O. Box 26685, unanticipated, unrepresented interests form a coalition with Mr. Means or Tucson, AZ 85726 may arise. The Committee may decide others. George R. ‘‘Chip’’ Pocock, C.P. Buckner that it is necessary for that issue to be Steel Erection, P.O. Box 598, Graham, A commenter (Ex. 6–4) recommended addressed in the proposed rule. If so, NC 27253 the addition of a member to represent the Agency will publish in the Federal the outdoor advertising industry. The Thomas ‘‘Craig’’ Steele, Schuck & Sons Register a request for additional commenter stated that the location, Construction Company, Inc., 8205 nominations to represent such interests. purpose and dimension of the work North 67th Avenue, Glendale, AZ The Secretary or her designee may then environments involved in outdoor 85302 select one or more additional advertising create unique challenges in Darlaine Taylor, Century Steel Erectors, representatives, who will be added as the area of workplace safety. In Co., LP 210 Washington Avenue, Committee members. The additional addition, the commenter noted that Dravosburg, Pennsylvania 15034 members will not be entitled to revisit work zone control and operations near William J. ‘‘Doc’’ Weaver, 8065 S. any issue that has already been electric power lines are issues that the Overhill Circle, Salt Lake City, UT negotiated, unless the Committee agrees outdoor advertising industry has 84121 by consensus to do so. extensive and unique experience with. Robert Weiss, Cranes Inc. and A.J. OSHA agrees that outdoor advertising McNulty & Company, Inc., 53–20 44th B. Replacement Members is a unique type of construction activity Street, Maspeth NY 11378 In the event an appointed member that uses specialized crane equipment. Doug Williams, Buckner Heavylift becomes unavailable or otherwise The Agency believes that this interest is Cranes, P.O. Box 598, Graham, NC unable to serve, the Secretary or her significant enough to add a member to 27253 designee will select a replacement the committee and, therefore, is adding Stephen Wiltshire, Turner Construction member to represent the interest the Stephen Charman of Viacom Outdoor Company, 6108 Waterman Drive, original member had represented. Group, Inc. to the committee to provide Fredericksburg, VA 22407 expertise on the use of cranes in the V. Anticipated Key Issues for construction of billboards. Users—Labor Organizations Negotiation The Agency has hired Susan Podziba Frank Migliaccio, International OSHA anticipates that key issues to as Facilitator for the negotiated Association of Bridge, Structural, be addressed as part of these rulemaking Committee. The primary Ornamental and Reinforcing Iron negotiations will include: functions of the Facilitator will be to Workers, 1750 New York Ave., NW., 1. The identification/description of chair the meetings of the Committee in Suite 400, Washington, DC 20006 what constitutes ‘‘cranes and derricks’’ an impartial manner and assist the Dale Shoemaker, Carpenters for purposes of determining the members of the Committee in International Training Center, 6801 equipment that will be covered by the conducting discussions and Placid Street, Las Vegas, NV 89119 proposed rule. negotiations. 2. Qualifications of individuals who Operators—Labor Organizations operate, maintain, repair, assemble, and III. Final Committee Membership List Stephen Brown, International Union of disassemble cranes and derricks. The final C–DAC membership list is Operating Engineers, 1125 17th Street, 3. Work zone control. comprised of the 23 individuals listed NW., Washington, DC 20036 4. Crane operations near electric below: Emmett Russell, International Union of power lines. 5. Qualifications of signal-persons and Manufacturers and Suppliers Operating Engineers 1125 17th Street, NW., Washington, DC 20036 communication systems and Michael Brunet, Manitowoc Cranes, requirements. Government/Public Entities Inc., 2401 S. 30th Street, Manitowoc, 6. Load capacity and control WI 54220 Noah Connell, U.S. Department of procedures. Peter Juhren, Morrow Equipment Labor/OSHA, 200 Constitution Ave., 7. Wire rope criteria. Company, L.L.C., 3218 Pringle Road NW., Room N–3468, Washington, DC 8. Crane inspection/certification SE., P.O. Box 3306, Salem, OR 97302 20210 records.
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9. Rigging procedures. DC 20210 in conference room N3437 A, the comment period. There was broad 10. Requirements for fail-safe, B and C. support for using negotiated rulemaking warning, and other safety-related Written comments to the committee to update the standard and OSHA devices/technologies. may be submitted in any of three ways: decided to go forward with the 11. Verification criteria for the by mail, by fax, or by email. Please negotiated rulemaking process. On June structural adequacy of crane include ‘‘Docket No. S–030’’ on all 12, 2003 the Department of Labor components. submissions. published a notice establishing the 12. Stability testing requirements. By mail, the address is: OSHA Docket Committee (Volume 68 of the Federal 13. Blind pick procedures. Office, Docket No. S–030, U.S. Register, page 35172). 14. Hydraulic cranes. Department of Labor, 200 Constitution II. Agenda Authority Avenue, NW., Room N–2625, Washington, DC 20210, telephone (202) Following registration, assembly and This document was prepared under 693–2350. Note that receipt of a welcome by the Agency, the the direction of John L. Henshaw, comments submitted by mail may be Facilitator will offer a brief overview of Assistant Secretary of Labor for delayed by several weeks. negotiated rulemaking and then address Occupational Safety and Health, U.S. By fax, written comments that are 10 the matters that must be resolved by the Department of Labor, 200 Constitution pages or fewer may be transmitted to the Committee at its first meeting, including Avenue, NW, Washington, D.C. 20210, OSHA Docket Office at telephone adoption of ground rules. These are the pursuant to the Negotiated Rulemaking number (202) 693–1648. procedural rules that the Committee Act of 1990, (5 U.S.C. 561 et seq.), the Electronically, comments may be will use for conducting the meetings. In Federal Advisory Committee Act (5 submitted through OSHA’s Webpage at addition there will be discussion of a U.S.C. Appendix 2), the Occupational http://ecomments.osha.gov. Please note tentative list of C–DAC workgroups. Safety and Health Act of 1970 (29 U.S.C. that you may not attach materials such The Facilitator will initiate 651 et seq.), and Secretary of Labor’s as studies or journal articles to your discussions on identifying the Order No. 5–2002 (67 FR 65008). electronic comments. If you wish to substantive issues to be addressed by C– Signed at Washington, DC, this 9th day of include such materials, you must DAC. OSHA requests that committee June, 2003. submit three copies to the OSHA Docket members and all interested parties bring John L. Henshaw, Office at the address listed above. When their calendars to facilitate the Assistant Secretary of Labor for Occupational submitting such materials to the OSHA development of a tentative schedule of Safety and Health. Docket Office, clearly identify your committee and workgroup meetings. electronic comments by name, date, [FR Doc. 03–16870 Filed 7–2–03; 8:45 am] III. Anticipated Key Issues for BILLING CODE 4510–26–U subject, and Docket Number, so that we can attach the materials to your Negotiation electronic comments. OSHA anticipates that key issues to DEPARTMENT OF LABOR FOR FURTHER INFORMATION CONTACT: be addressed as part of these Michael Buchet, Office of Construction negotiations will include: Occupational Safety and Health Standards and Guidance, Occupational 1. The identification/description of Administration Safety and Health Administration, U.S. what constitutes ‘‘cranes and derricks’’ Department of Labor, Room N–3468, for purposes of determining the 29 CFR Part 1926 200 Constitution Avenue, NW., equipment that will be covered by the proposed rule. [Docket No. S–030] Washington, DC 20210; Telephone: (202) 693–2345. 2. Qualifications of individuals who RIN 1218–AC01 operate, maintain, repair, assemble, and Table of Contents disassemble cranes and derricks. Safety Standards for Cranes and I. Background 3. Work zone control. Derricks II. Agenda 4. Crane operations near electric III. Anticipated Key Issues for Negotiation power lines. AGENCY: Occupational Safety and Health IV. Public Participation 5. Qualifications of signal-persons and Administration (OSHA), U.S. V. Supplementary Information communication systems and Department of Labor. V. Authority requirements. ACTION: Notice of first meeting of I. Background 6. Load capacity and control Negotiated Rulemaking Committee. procedures. On July 16, 2002, OSHA published a 7. Wire rope criteria. SUMMARY: The Occupational Safety and notice of intent to establish a negotiated Health Administration (OSHA) 8. Crane inspection/certification rulemaking committee (Volume 67 of records. announces the first meeting of the Crane the Federal Register, page 46612). The and Derrick Negotiated Rulemaking 9. Rigging procedures. notice requested nominations for 10. Requirements for fail-safe, Advisory Committee (C–DAC). Members membership on the C–DAC and warning, and other safety-related will be sworn in; the committee will be comments on the appropriateness of devices/technologies. charged with its duties and will address using negotiated rulemaking to develop 11. Verification criteria for the certain procedural matters and a proposed rule for cranes and derricks structural adequacy of crane substantive issues. The meeting will be used in construction. In addition, the components. open to the public. notice described the negotiated 12. Stability testing requirements. DATES: The meeting will be on July 30, rulemaking process and identified some 13. Blind pick procedures. 31, and August 1, 2003. It will begin key issues anticipated to be addressed each day at 8:30 a.m. in the negotiation. IV. Public Participation ADDRESSES: The meeting will be held at Fifty-five nominations for All interested parties are invited to The U.S. Department of Labor, 200 membership on the Committee and attend this public meeting at the time Constitution Avenue, NW., Washington, several comments were received during and place indicated above. No advanced
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registration is required. Seating will be of 1970 (29 U.S.C. 651 et seq.), and of Standards, Regulations and available to the public on a first-come, Secretary of Labor’s Order No. 5–2002 Variances, MSHA; phone: (202) 693– first-served basis. Individuals with (67 FR 65008). 9440; facsimile: (202) 693–9441; e-mail: disabilities wishing to attend should Signed at Washington, DC, this 27 day of [email protected]. contact Luz DelaCruz by Telephone at June, 2003. You can request a copy of this 202–693–2020 or by Fax at 202–693– John L. Henshaw, extension notice in an alternate format, 1689 to obtain appropriate such as a large print version, an Assistant Secretary of Labor for Occupational electronic file or a file on a disk. This accommodations no later than Tuesday, Safety and Health. July 22, 2003. The C–DAC meeting is extension notice is available on MSHA’s [FR Doc. 03–16871 Filed 7–2–03; 8:45 am] expected to last two and a half days. Internet site, http://www.msha.gov, at In addition, members of the general BILLING CODE 4510–26–P the ‘‘Statutory and Regulatory public may request an opportunity to Information’’ icon. make oral presentations to the SUPPLEMENTARY INFORMATION: Committee. The Facilitator has the DEPARTMENT OF LABOR authority to decide to what extent oral I. Rulemaking Background presentations by members of the public Mine Safety and Health Administration On July 7, 2000, the Mine Safety and may be permitted at the meeting. Oral Health Administration (MSHA) presentations will be limited to 30 CFR Parts 70, 75, and 90 published a Notice of Proposed statements of fact and views, and shall RIN 1219–AB14 Rulemaking (NPRM) in the Federal not include any questioning of the Register, Verification of Underground committee members or other Verification of Underground Coal Mine Coal Mine Operators’ Dust Control Plans participants. Questions, answers and a Operators’ Dust Control Plans and and Compliance Sampling for less formal exchange is encouraged in Compliance Sampling for Respirable Respirable Dust (Plan Verification) (65 the workgroup sessions. Dust FR 42122). A notice of public hearing The procedural requirements in Part and close of record was also published 1912 of Title 29 of the Code of Federal AGENCY: Mine Safety and Health in the Federal Register (65 FR 41286) on Regulations will apply generally to C– Administration (MSHA), Labor. July 7, 2000. During August 2000, three DAC meetings. The reporting ACTION: Proposed rule; extension of public hearings were conducted in requirements of § 1912.33 have been comment period. Morgantown, West Virginia; changed pursuant to § 1912.42 to help Prestonsburg, Kentucky; and Salt Lake meet the special needs of negotiated SUMMARY: This document extends the City, Utah. Transcripts of those rulemaking committees. Specifically, comment period for Verification of proceedings were made available to the § 1912.33 requires that verbatim Underground Coal Mine Operators’ Dust public. In response to requests from transcripts be kept of all advisory Control Plans and Compliance Sampling commenters, the public comment period committee meetings. Producing a for Respirable Dust (Plan Verification), was extend to September 8, 2000 (65 FR coherent transcript requires a certain published in the Federal Register on 29215). degree of formality. The Assistant March 6, 2003 as a proposed rule. The On March 6, 2003, (68 FR 10784), in Secretary therefore has determined comment period was scheduled to close response to commenters to the 2000 pursuant to § 1912.42 that such on July 3, 2003, but will now remain proposed rule, MSHA published a formality might interfere with the free open until further notice is published in second proposed rule in the Federal exchange of information and ideas the Federal Register. Register. During May 2003, the agency during the negotiations, and that the MSHA has decided to extend the held six public hearings in Washington, OSH Act would be better served by comment period in order to obtain Pennsylvania; Charleston, West simply requiring detailed minutes of the further information on Personal Dust Virginia; Evansville, Indiana; Lexington, proceedings without a formal transcript. Monitors (PDMs), a new technology Kentucky; Birmingham, Alabama; and Minutes of the meetings and materials which is currently being tested by the Grand Junction, Colorado. The hearings prepared for the Committee will be National Institute for Occupational were attended by over 500 members of available for public inspection at the Safety and Health (NIOSH). the public. In response to requests from OSHA Docket Office, N–2625, 200 All comments received will be the mining community the Agency Constitution Ave., NW., Washington, entered into the rulemaking. extended the post-hearing comment DC 20210; Telephone (202) 693–2350. DATES: The rulemaking record for the period from June 4, 2003 to July 3, 2003 The Facilitator, Susan Podziba, can be proposed rule published on March 6, (68 FR 32005, May 29, 2003). This reached at Susan Podziba and 2003, and for which the comment notice extends the public comment Associates, 21 Orchard Road, Brookline, period was extended on May 29, 2003, period from July 3, 2003 until further MA 02445; Telephone (617) 738–5320, will remain open until further notice in notice is published in the Federal Fax (617) 738–6911. the Federal Register. Register. VI. Authority ADDRESSES: You may use mail, facsimile II. Reasons for Extension of Comment This document was prepared under (fax), or electronic mail to send us your Period comments. Clearly identify them as the direction of John L. Henshaw, The Agency made the decision to comments and send them (1) by mail to Assistant Secretary of Labor for extend the comment period on the MSHA, Office of Standards, Occupational Safety and Health, U.S. proposed rule after careful Regulations, and Variances, 1100 Department of Labor, 200 Constitution consideration of comments during the Wilson, Blvd., Room 2313, Arlington, Avenue, NW., Washington, DC 20210, May 2003 public hearings concerning Virginia 22209–3939; by fax to (202) pursuant to section 3 of the Negotiated the preliminary success of in-mine tests 693–9441; or (3) electronic mail to: Rulemaking Act of 1990, (5 U.S.C. 561 on a prototype of personal dust [email protected]. et seq.), the Federal Advisory monitors (PDMs). Committee Act (5 U.S.C. Appendix 2), FOR FURTHER INFORMATION CONTACT: The Comment period will remain the Occupational Safety and Health Act Marvin W. Nichols, Jr., Director, Office open during which time:
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• The in-mine testing of the pre- Protection Agency, EPA West, 1200 40 CFR 19.2 to make the penalty production prototype PDMs at mines in Pennsylvania Avenue, NW., Room amounts set forth in 40 CFR 19.4 apply Pennsylvania, West Virginia, Alabama, B133, Washington, DC 20460 (in to all applicable violations that occur and Utah is completed; triplicate, if possible). Please use a font after the effective date of the final rule. • NIOSH and MSHA commit size no smaller than 12. Written The DCIA requires that the $150,000 each for further testing comments may be delivered in person adjustment reflect the percentage contingent upon completion and to: U.S. Environmental Protection increase in the Consumer Price Index positive assessment of the in-mine Agency, EPA West, 1301 Constitution between June of the calendar year testing; and Avenue, NW., Room B133, Washington, preceding the adjustment and June of • Information is obtained to assist in DC 20460. Comments may also be the calendar year in which the amount controlling and monitoring respirable submitted electronically to was last set or adjusted. The DCIA coal mine dust and preventing Black [email protected] or faxed to (202) defines the Consumer Price Index as the Lung disease. 566–1511. Attach electronic comments Consumer Price Index for all urban For all the reasons stated herein, the as an ASCii (text) file, and avoid the use consumers published by the Department comment period on the proposed rule is of special characters and any form of of Labor (‘‘CPI–U’’). As the initial hereby extended until further notice is encryption. Be sure to include the adjustment was made and published on published in the Federal Register. docket number, EC–2001–008 on your December 31, 1996, the inflation A separate notice reopening the document. Public comments, if any, adjustment for the CMPs set forth in the rulemaking record for the proposed rule may be reviewed at the Enforcement proposed rule was calculated by ‘‘Determination of Concentration of and Compliance Docket Information comparing the CPI–U for June 1996 Respirable Coal Mine Dust,’’ (68 FR Center, U.S. Environmental Protection (156.7) with the CPI-U for June 2002 10940, 68 FR 32005) will be published Agency, EPA West, 1301 Constitution (179.9), resulting in an inflation in the Federal Register shortly. Avenue, NW., Room B133, Washington, adjustment of 14.8 percent. In addition, Dated: June 30, 2003. DC 20460. Persons interested in the DCIA’s rounding rules require that an increase be rounded to the nearest John R. Caylor, reviewing this docket may do so by calling (202) 566–1512. multiple of: $10 in the case of penalties Deputy Assistant Secretary for Mine Safety less than or equal to $100; $100 in the and Health. FOR FURTHER INFORMATION CONTACT: case of penalties greater than $100 but David Abdalla, Office of Regulatory [FR Doc. 03–16979 Filed 7–1–03; 11:28 am] less than or equal to $1,000; $1,000 in Enforcement, Multimedia Enforcement BILLING CODE 4510–43–M the case of penalties greater than $1,000 Division, Mail Code 2248A, 1200 but less than or equal to $10,000; $5,000 Pennsylvania Avenue, NW., in the case of penalties greater than ENVIRONMENTAL PROTECTION Washington, DC 20460, (202) 564–2413. $10,000 but less than or equal to AGENCY SUPPLEMENTARY INFORMATION: $100,000; $10,000 in the case of Background penalties greater than $100,000 but less 40 CFR Parts 19 and 27 than or equal to $200,000; and $25,000 Pursuant to section 4 of the Federal [FRL–7522–4] in the case of penalties greater than Civil Penalties Inflation Adjustment Act $200,000. Civil Monetary Penalty Inflation of 1990, 28 U.S.C. 2461 note, as The amount of each CMP was Adjustment Rule amended by the Debt Collection multiplied by 14.8 percent (the inflation Improvement Act of 1996, 31 U.S.C. adjustment) and the resulting increase AGENCY: Environmental Protection 3701 note, (‘‘DCIA’’), each federal amount was rounded up or down Agency (EPA). agency is required to issue regulations according to the rounding requirements ACTION: Proposed rule. adjusting for inflation the maximum of the statute. The table below shows civil monetary penalties that can be the inflation-adjusted CMPs and SUMMARY: The Environmental Protection imposed pursuant to such agency’s includes only the CMPs as of the Agency is proposing to amend the final statutes. The purpose of these effective date of the final rule. EPA Civil Monetary Penalty Inflation adjustments is to maintain the deterrent intends to readjust these amounts in the Adjustment Rule, as mandated by the effect of CMPs and to further the policy year 2007 and every four years Debt Collection Improvement Act of goals of the laws. The DCIA requires thereafter, assuming there are no further 1996, to adjust EPA’s civil monetary adjustments to be made at least once changes to the mandate imposed by the penalties (‘‘CMPs’’) for inflation on a every four years following the initial DCIA. periodic basis. The Agency is required adjustment. The EPA’s initial On June 18, 2002, the EPA published to review its penalties at least once adjustment to each CMP was published a direct final rule and a parallel every four years and to adjust them as in the Federal Register on December 31, proposed rule in the Federal Register necessary for inflation according to a 1996, at 61 FR 69360 and became (67 FR 41343). The direct final rule formula specified in the statute. A effective on January 30, 1997. would have amended the Civil complete version of Table 1 from the The proposed rule adjusts the amount Monetary Penalty Inflation Adjustment proposed regulatory text, which lists all for each type of CMP that EPA has Rule, as mandated by the DCIA, to of the EPA’s civil monetary penalty jurisdiction to impose in accordance adjust EPA’s civil monetary penalties authorities, appears near the end of this with these statutory requirements. It for inflation. EPA stated in the direct document. does so by revising the table contained final rule that if we received adverse DATES: Written comments should be in 40 CFR 19.4. The table identifies the comment by July 18, 2002, EPA would submitted on or before August 4, 2003. statutes that provide EPA with CMP publish a timely notice of withdrawal ADDRESSES: Mail written comments to authority and sets out the inflation- on or before the August 19, 2002 the Docket Office, Enforcement & adjusted maximum penalty that EPA effective date, and then address that Compliance Docket and Information may impose pursuant to each statutory comment in a subsequent final action Center (2201AT), Docket Number EC– provision. The proposed rule also based on the parallel proposal 2001–008, U.S. Environmental revises the effective date provisions of published at (67 FR 41363). EPA
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subsequently received one adverse second comment period on this action. respond to a collection of information comment on the direct final rule from Any parties interested in commenting unless it displays a currently valid OMB the Government Accounting Office must do so at this time. control number. The OMB control (‘‘GAO’’), which stated that EPA had numbers for EPA’s regulations are listed Statutory and Executive Order Review misinterpreted the rounding formula in 40 CFR part 9 and 48 CFR chapter 15. provided in the DCIA. Accordingly, EPA Executive Order 12866: Regulatory Regulatory Flexibility Act withdrew the direct final rule on August Planning and Review The Regulatory Flexibility Act, as 19, 2002 (67 FR 53743). Under Executive Order 12866, (58 FR amended by the Small Business The formula for the amount of the 51735 (October 4, 1993)) the Agency Regulatory Enforcement Fairness Act of penalty adjustment is prescribed by must determine whether the regulatory 1996 (SBREFA), 5 U.S.C. 601 et seq., Congress in the DCIA and these changes action is ‘‘significant’’ and therefore generally requires an agency to prepare are not subject to the exercise of subject to OMB review and the a regulatory flexibility analysis of any discretion by EPA. However the requirements of the Executive Order. rule subject to notice and comment rounding requirement of the statute is The Order defines ‘‘significant rulemaking requirements unless the subject to different interpretations. regulatory action’’ as one that is likely agency certifies that the rule will not Some agencies rounded the increase to result in a rule that may: based on the amount of the current (1) Have an annual effect on the have a significant economic impact on penalty before adjustment, while other economy of $100 million or more or a substantial number of small entities. agencies have rounded the increase adversely affect in a material way the Small entities include small businesses, based on the amount of the increase economy, a sector of the economy, small organizations, and small resulting from the CPI percentage productivity, competition, jobs, the governmental jurisdictions. For calculation. Still other agencies first environment, public health or safety, or purposes of assessing the impacts of added the CPI increase to the amount of State, local, or tribal governments or today’s rule on small entities, small the current penalty and then rounded communities; entity is defined as (1) a small business the total based on the amount of the (2) Create a serious inconsistency or as defined in the Small Business increased penalty. The penalties in otherwise interfere with an action taken Administration regulations at 13 CFR EPA’s direct final rule were rounded or planned by another agency; part 121; (2) a small governmental based on the amount of the increase (3) Materially alter the budgetary jurisdiction that is a government of a resulting from the CPI percentage impact of entitlements, grants, user fees, city, county, town school district or increase because this approach appears or loan programs or the rights and special district with a population of less to achieve the intent of the DCIA by obligations of recipients thereof; or than 50,000; and (3) a small steadily tracking the CPI over time. (4) Raise novel legal or policy issues organization that is any not-for-profit However, the GAO’s adverse comment arising out of legal mandates, the enterprise which is independently asserts that a strict reading of the DCIA President’s priorities, or the principles owned and operated and is not requires rounding the CPI increase set forth in the Executive Order. dominant in its field. based on the amount of the current It has been determined that the After considering the economic penalty before adjustment. EPA proposed rule is not a ‘‘significant impacts of today’s rule on small entities, proposes to adopt GAO’s interpretation regulatory action’’ under the terms of I certify that this action will not have a of the DCIA rounding rules and round Executive Order 12866, and is therefore significant economic impact on a the CPI increases based on the amount not subject to review by the Office of substantial number of small entities. of the current penalty before Management and Budget. EPA is required by the DCIA to adjust adjustment. EPA intends to use this civil monetary penalties for inflation. Paperwork Reduction Act formula for calculating future The formula for the amount of the adjustments to the CMPs and will not This action does not impose an penalty adjustment is prescribed by provide additional comment periods at information collection burden under the Congress and is not subject to the the time future adjustments are made. provisions of the Paperwork Reduction exercise of discretion by EPA. EPA’s Act (44 U.S.C. 3501 et seq.). Burden action implements this statutory Administrative Requirements means the total time, effort, financial mandate and does not substantively Although EPA is publishing this rule resources expended by persons to alter the existing regulatory framework. with proposal, we view this as a generate, maintain, retain, or disclose or This rule does not affect mechanisms noncontroversial amendment and provide information to or for a Federal already in place, including statutory anticipate no further adverse comment. agency. This includes the time needed provisions and EPA policies, that This rule incorporates requirements to review instructions; develop, acquire, address the special circumstances of specifically set forth in the DCIA install, and utilize technology and small entities when assessing penalties requiring EPA to issue a regulation systems for purposes of collecting, in enforcement actions. implementing inflation adjustments for validating, and verifying information, Although this proposed rule will not all its civil penalty provisions. These processing and maintaining have a significant economic impact on technical changes, required by law, do information, and disclosing and a substantial number of small entities, not substantively alter the existing providing information; adjust the EPA nonetheless has tried to reduce the regulatory framework or in any way existing ways to comply with any impact of this rule on small entities. affect the terms under which civil previously applicable instructions and Small entities may be affected by this penalties are assessed by EPA. In requirements; train personnel to be able rule only if the federal government finds addition, EPA has made minor to respond to a collection of them in violation and seeks monetary conforming changes to the regulations to information; search data sources; penalties. EPA’s media penalty policies reflect the effective date of the new complete and review the collection of generally take into account an entity’s penalties prescribed by Congress. We information; and transmit or otherwise ‘‘ability to pay’’ in determining the will address all public comments in a disclose the information. amount of a penalty. Additionally, the subsequent final rule based on this An Agency may not conduct or final amount of any civil penalty proposed rule. We will not institute a sponsor, and a person is not required to assessed against a violator remains
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committed to the discretion of the EPA has determined that the proposed environmental health or safety effects of Federal Judge or Administrative Law rule contains no regulatory the planned rule on children, and Judge hearing a particular case. We requirements that might significantly or explain why the planned regulation is continue to be interested in the uniquely affect small governments. preferable to other potentially effective potential impacts of the proposed rule Executive Order 13132: Federalism and reasonably feasible alternatives on small entities and welcome considered by the Agency. EPA Executive Order 13132, entitled comments on issues related to such interprets Executive Order 13045 as Federalism (64 FR 43255, August 10, impacts. applying only to those regulatory 1999), requires EPA to develop an Unfunded Mandates Reform Act accountable process to ensure actions that are based on health or safety Title II of the Unfunded Mandates ‘‘meaningful and timely input by State risks, such that the analysis required Reform Act of 1995 (UMRA), Public and local officials in the development of under section 5–501 of the Order has Law 104–4, establishes requirements for regulatory policies that have federalism the potential to influence the regulation. Federal agencies to assess the effects of implications.’’ ‘‘Policies that have This rule is not subject to Executive their regulatory actions on State, local, federalism implications’’ is defined in Order 13045 because it does not and tribal governments and the private the Executive Order to include establish an environmental standard sector. Under section 202 of the UMRA, regulations that have ‘‘substantial direct intended to mitigate health or safety EPA generally must prepare a written effects on the States, on the relationship risks. Because this action does not statement, including a cost-benefit between the national government and involve technical standards, EPA did analysis, for proposed and final rules the States, or on the distribution of not consider the use of any voluntary with ‘‘Federal mandates’’ that may power and responsibilities among the consensus standards under the National result in expenditures to State, local, various levels of government.’’ The Technology Transfer and Advancement and tribal governments, in the aggregate, proposed rule does not have federalism Act of 1995 (15 U.S.C. 272 note). or to the private sector, of $100 million implications. It will not have substantial or more in any one year. Before direct effects on the States, on the Executive Order 13211: Actions That promulgating an EPA rule for which a relationship between the national Significantly Affect Energy Supply, written statement is needed, section 205 government and the States, or on the Distribution, or Use of the UMRA generally requires EPA to distribution of power and identify and consider a reasonable responsibilities among the various This rule is not subject to Executive number of regulatory alternatives and levels of government, as specified in Order 13211, ‘‘Actions Concerning adopt the least costly, most cost- Executive Order 13132. Thus, Executive Regulations That Significantly Affect effective or least burdensome alternative Order 13132 does not apply to this rule. Energy Supply, Distribution, or Use’’ (66 that achieves the objectives of the rule. FR 28355 (May 22, 2001)) because it is The provisions of section 205 do not Executive Order 13175: Consultation not a significant regulatory action under apply when they are inconsistent with and Coordination With Indian Tribal Executive Order 12866. applicable law. Moreover, section 205 Governments allows EPA to adopt an alternative other Executive Order 13175, entitled National Technology Transfer than the least costly, most cost-effective Consultation and Coordination with Advancement Act or least burdensome alternative if the Indian Tribal Governments (65 FR Section 12(d) of the National Administrator publishes with the final 67249, November 9, 2000), requires EPA Technology Transfer Advancement Act to develop an accountable process to rule an explanation why that alternative of 1995 (‘‘NTTAA’’), Public Law 104– was not adopted. Before EPA establishes ensure ‘‘meaningful and timely input by 113, section 12(d) (15 U.S.C. 272 note) any regulatory requirements that may tribal officials in the development of significantly or uniquely affect small regulatory policies that have tribal directs EPA to use voluntary consensus governments, including tribal implications.’’ As the proposed rule will standards in its regulatory activities governments, it must have developed not have substantial direct effects on unless to do so would be inconsistent under section 203 of the UMRA a small tribal governments, on the relationship with applicable law or otherwise government agency plan. The plan must between the Federal government and impractical. Voluntary consensus provide for notifying potentially Indian tribes, or on the distribution of standards are technical standards (e.g., affected small governments, enabling power and responsibilities between the materials specifications, test methods, officials of affected small governments Federal government and Indian tribes, sampling procedures, and business to have meaningful and timely input in Executive Order 13175 does not apply practices) that are developed or adopted the development of EPA regulatory to this rule. by voluntary consensus standards proposals with significant Federal bodies. The NTTAA directs EPA to Executive Order 13045: Protection of intergovernmental mandates, and provide Congress, through OMB, informing, educating, and advising Children From Environmental Health & Safety Risks explanations when the Agency decides small governments on compliance with not to use available and applicable the regulatory requirements. Executive Order 13045, Protection of voluntary consensus standards. This The proposed rule contains no Children from Environmental Health proposed rulemaking does not involve Federal mandates (under the regulatory Risks and Safety Risks (62 FR 19885, technical standards. Therefore, EPA is provisions of Title II of the UMRA) for April 23, 1997), applies to any rule that: not considering the use of any voluntary State, local, or tribal governments or the (1) Is determined to be ‘‘economically consensus standards. private sector because the rule significant’’ as defined under Executive implements mandate(s) specifically and Order 12866, and (2) concerns an Because this action does not involve explicitly set forth by the Congress environmental health or safety risk that technical standards, EPA did not without the exercise of any policy EPA has reason to believe may have a consider the use of any voluntary discretion by EPA. Thus, the proposed disproportionate effect on children. If consensus standards under the National rule is not subject to the requirements the regulatory action meets both criteria, Technology Transfer and Advancement of sections 202 and 205 of the UMRA. the Agency must evaluate the Act of 1995 (15 U.S.C. 272 note).
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Executive Order 12898: Federal Actions This action is not a ‘‘major rule’’ as Authority: Pub. L. 101–410, 28 U.S.C. 2461 To Address Environmental Justice in defined by 5 U.S.C. 804(2). note; Pub. L. 104–134, 31 U.S.C. 3701 note. Minority Populations and Low-Income List of Subjects § 19.1 Applicability. Populations 40 CFR Part 19 This part applies to each statutory Nor does it require any special provision under the laws administered considerations under Executive Order Environmental protection, by the Environmental Protection Agency 12898, entitled Federal Actions to Administrative practice and procedure, concerning the maximum civil Address Environmental Justice in Penalties. monetary penalty which may be Minority Populations and Low-Income 40 CFR Part 27 assessed in either civil judicial or Populations (59 FR 7629, February 16, administrative proceedings. 1994). Administrative practice and procedure, Assessments, Claims, Fraud, § 19.2 Effective Date. Congressional Review Act Penalties. The increased penalty amounts set The Congressional Review Act, 5 Dated: June 27, 2003. forth in this rule apply to all violations U.S.C. 801 et seq., as added by the Small Christine Todd Whitman, under the applicable statutes and Business Regulatory Enforcement regulations which occur after July 3, Fairness Act of 1996, generally provides Administrator. 2003. [The regulatory penalty provisions that before a rule may take effect, the For the reasons set out in the of this part effective on January 30, 1997 agency promulgating the rule must preamble, title 40, chapter I of the Code remain in effect for any violation of law submit a rule report, which includes a of Federal Regulations is amended as occurring between January 30, 1997 and copy of the rule, to each House of the follows: July 3, 2003. Congress and to the Comptroller General 1. Revise part 19 to read as follows: of the United States. EPA will submit a § 19.3 [Reserved]. report containing this rule and other PART 19—ADJUSTMENT OF CIVIL required information to the U.S. Senate, MONETARY PENALTIES FOR § 19.4 Penalty Adjustment and Table. the U.S. House of Representatives, and INFLATION The adjusted statutory penalty the Comptroller General of the United Sec. provisions and their maximum States prior to publication of the rule in 19.1 Applicability. applicable amounts are set out in Table the Federal Register. A major rule 19.2 Effective Date. 1. The last column in the table provides cannot take effect until 60 days after it 19.3 [Reserved]. the newly effective maximum penalty is published in the Federal Register. 19.4 Penalty Adjustment and Table. amounts.
TABLE 1 OF § 19.4.—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS
U.S. Code citation Civil monetary penalty description New maximum penalty amount in dollars
7 U.S.C. 1361.(a)(1)...... FEDERAL INSECTICIDE, FUNGICIDE, & $6,500 RODENTICIDE ACT CIVIL PENALTY—GENERAL— COMMERCIAL APPLICATORS, ETC.. 7 U.S.C. 1361.(a)(2)...... FEDERAL INSECTICIDE, FUNGICIDE, & $650/$1,100 RODENTICIDE ACT CIVIL PENALTY—PRIVATE APPLICATORS—FIRST AND SUBSEQUENT OF- FENSES OR VIOLATIONS. 15 U.S.C. 2615(a) ...... TOXIC SUBSTANCES CONTROL ACT CIVIL PEN- $32,500 ALTY. 15 U.S.C. 2647(a) ...... ASBESTOS HAZARD EMERGENCY RESPONSE ACT $6,500 CIVIL PENALTY. 31 U.S.C. 3802(a)(1) ...... PROGRAM FRAUD CIVIL REMEDIES ACT/VIOLATION $6,500 INVOLVING FALSE CLAIM. 31 U.S.C. 3802(a)(2) ...... PROGRAM FRAUD CIVIL REMEDIES ACT/VIOLATION $6,500 INVOLVING FALSE STATEMENT. 33 U.S.C. 1319(d)...... CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL $32,500 PENALTY. 33 U.S.C. 1319(g)(2)(A)...... CLEAN WATER ACT VIOLATION/ADMINISTRATIVE $11,000/$32,500 PENALTY PER VIOLATION AND MAXIMUM. 33 U.S.C. 1319(g)(2)(B)...... CLEAN WATER ACT VIOLATION/ADMINISTRATIVE $11,000/$157,500 PENALTY PER VIOLATION and MAXIMUM. 33 U.S.C. 1321(b)(6)(B)(I)...... CLEAN WATER ACT VIOLATION/ADMIN PENALTY $11,000/$32,500 OF SEC 311(b)(3)&(j) PER VIOLATION AND MAX- IMUM. 33 U.S.C. 1321(b)(6)(B)(ii) ...... CLEAN WATER ACT VIOLATION/ADMIN PENALTY $11,000/$157,500 OF SEC 311(b)(3)&(j) PER VIOLATION AND MAX- IMUM. 33 U.S.C. 1321(b)(7)(A)...... CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL $32,500 or $1,100 per barrel or unit. PENALTY OF SEC 311(b)(3)—PER VIOLATION PER DAY OR PER BARREL OR UNIT. 33 U.S.C. 1321(b)(7)(B)...... CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL $32,500 PENALTY OF SEC 311(c)&(e)(1)(B). 33 U.S.C. 1321(b)(7)(C)...... CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL $32,500 PENALTY OF SEC 311(j).
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TABLE 1 OF § 19.4.—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS—Continued
U.S. Code citation Civil monetary penalty description New maximum penalty amount in dollars
33 U.S.C. 1321(b)(7)(D) ...... CLEAN WATER ACT VIOLATION/MINIMUM CIVIL JU- $120,000 or $3,300 per barrel or unit. DICIAL PENALTY OF SEC 311(b)(3)—PER VIOLA- TION OR PER BARREL/UNIT. 33 U.S.C. 1414b(d)...... MARINE PROTECTION, RESEARCH & SANC- $760 TUARIES ACT VIOL SEC 104b(d). 33 U.S.C. 1415(a)...... MARINE PROTECTION RESEARCH AND SANC- $60,000/$157,500 TUARIES ACT VIOLATIONS—FIRST & SUBSE- QUENT VIOLATIONS. 42 U.S.C. 300g–3(b) ...... SAFE DRINKING WATER ACT/CIVIL JUDICIAL PEN- $32,500 ALTY OF SEC 1414(b). 42 U.S.C. 300g–3(c) ...... SAFE DRINKING WATER ACT/CIVIL JUDICIAL PEN- $32,500 ALTY OF SEC 1414(c). 42 U.S.C. 300g–3(g)(3)(A) ...... SAFE DRINKING WATER ACT/CIVIL JUDICIAL PEN- $32,500 ALTY OF SEC 1414(g)(3)(a). 42 U.S.C. 300g–3(g)(3)(B) ...... SAFE DRINKING WATER ACT/MAXIMUM ADMINIS- $6,000/$30,000 TRATIVE PENALTIES PER SEC 1414(g)(3)(B). 42 U.S.C. 300g–3(g)(3)(C) ...... SAFE DRINKING WATER ACT/THRESHOLD REQUIR- $30,000 ING CIVIL JUDICIAL ACTION PER SEC 1414(g)(3)(C). 42 U.S.C. 300h–2(b)(1) ...... SDWA/CIVIL JUDICIAL PENALTY/VIOLATIONS OF $32,500 REQS—UNDERGROUND INJECTION CONTROL (UIC). 42 U.S.C. 300h–2(c)(1) ...... SDWA/CIVIL ADMIN PENALTY/VIOLATIONS OF UIC $11,000/$157,500 REQS—PER VIOLATION AND MAXIMUM. 42 U.S.C.300h–2(c)(2) ...... SDWA/CIVIL ADMIN PENALTY/VIOLATIONS OF UIC $6,500/$157,500 REQS—PER VIOLATION AND MAXIMUM. 42 U.S.C. 300h–3(c)(1) ...... SDWA/VIOLATION/OPERATION OF NEW UNDER- $6,500 GROUND INJECTION WELL. 42 U.S.C. 300h–3(c)(2) ...... SDWA/WILLFUL VIOLATION/OPERATION OF NEW $11,000 UNDERGROUND INJECTION WELL. 42 U.S.C. 300i(b) ...... SDWA/FAILURE TO COMPLY WITH IMMINENT AND $15,000 SUBSTANTIAL ENDANGERMENT ORDER. 42 U.S.C. 300i–1(c) ...... SDWA/ATTEMPTING TO OR TAMPERING WITH PUB- $100,000/$1,000,000 LIC WATER SYSTEM/CIVIL JUDICIAL PENALTY. 42 U.S.C. 300j(e)(2)...... SDWA/FAILURE TO COMPLY W/ORDER ISSUED $2,750 UNDER SEC. 1441(c)(1). 42 U.S.C. 300j–4(c) ...... SDWA/REFUSAL TO COMPLY WITH REQS. OF SEC. $32,500 1445(a) OR (b). 42 U.S.C. 300j–6(b)(2) ...... SDWA/FAILURE TO COMPLY WITH ADMIN. ORDER $30,000 ISSUED TO FEDERAL FACILITY. 42 U.S.C. 300j–23(d) ...... SDWA/VIOLATIONS/SECTION 1463(b)—FIRST OF- $6,500/$60,000 FENSE/REPEAT OFFENSE. 42 U.S.C. 4852d(b)(5) ...... RESIDENTIAL LEAD-BASED PAINT HAZARD REDUC- $11,000 TION ACT OF 1992, SEC 1018—CIVIL PENALTY. 42 U.S.C. 4910(a)(2) ...... NOISE CONTROL ACT OF 1972—CIVIL PENALTY ..... $11,000 42 U.S.C. 6928(a)(3)...... RESOURCE CONSERVATION & RECOVERY ACT/ $32,500 VIOLATION SUBTITLE C ASSESSED PER ORDER. 42 U.S.C. 6928(c) ...... RES. CONS. & REC. ACT/CONTINUED NONCOMPLI- $32,500 ANCE OF COMPLIANCE ORDER. 42 U.S.C. 6928(g) ...... RESOURCE CONSERVATION & RECOVERY ACT/ $32,500 VIOLATION SUBTITLE C. 42 U.S.C. 6928(h)(2)...... RES. CONS. & REC. ACT/NONCOMPLIANCE OF $32,500 CORRECTIVE ACTION ORDER. 42 U.S.C. 6934(e) ...... RES. CONS. & REC. ACT/NONCOMPLIANCE WITH $6,500 SECTION 3013 ORDER. 42 U.S.C. 6973(b) ...... RES. CONS. & REC. ACT/VIOLATIONS OF ADMINIS- $6,500 TRATIVE ORDER. 42 U.S.C. 6991e(a)(3) ...... RES. CONS. & REC. ACT/NONCOMPLIANCE WITH $32,500 UST ADMINISTRATIVE ORDER. 42 U.S.C. 6991e(d)(1) ...... RES. CONS. & REC. ACT/FAILURE TO NOTIFY OR $11,000 FOR SUBMITTING FALSE INFORMATION. 42 U.S.C. 6991e(d)(2)...... RCRA/VIOLATIONS OF SPECIFIED UST REGU- $11,000 LATORY REQUIREMENTS. 42 U.S.C. 14304(a)(1) ...... BATTERY ACT VIOLATIONS ...... $11,000 42 U.S.C. 14304(g) ...... BATTERY ACT/VIOLATIONS OF CORRECTIVE AC- $11,000 TION ORDERS. 42 U.S.C. 7413(b)...... CLEAN AIR ACT/VIOLATION/OWNERS & OPERA- $32,500 TORS OF STATIONARY AIR POLLUTION SOURCES—JUDICIAL PENALTIES.
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TABLE 1 OF § 19.4.—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS—Continued
U.S. Code citation Civil monetary penalty description New maximum penalty amount in dollars
42 U.S.C. 7413(d)(1)...... CLEAN AIR ACT/VIOLATION/OWNERS & OPERA- $32,500/$245,000 TORS OF STATIONARY AIR POLLUTION SOURCES—ADMINISTRATIVE PENALTIES PER VIOLATION & MAX. 42 U.S.C. 7413(d)(3) ...... CLEAN AIR ACT/MINOR VIOLATIONS/STATIONARY $6,500 AIR POLLUTION SOURCES—FIELD CITATIONS. 42 U.S.C. 7524(a) ...... TAMPERING OR MANUFACTURE/SALE OF DEFEAT $2,750 DEVICES IN VIOLATION OF 7522(a)(3)(A) OR (a)(3)(B)—BY PERSONS. 42 U.S.C. 7524(a) ...... VIOLATION OF 7522(a)(3)(A) OR (a)(3)(B)—BY MANU- $32,500 FACTURERS OR DEALERS; ALL VIOLATIONS OF 7522(a)(1), (2), (4), & (5) BY ANYONE. 42 U.S.C. 7524(c) ...... ADMINISTRATIVE PENALTIES AS SET IN 7524(a) & $245,000 7545(d) WITH A MAXIMUM ADMINISTRATIVE PEN- ALTY. 42 U.S.C. 7545(d) ...... VIOLATIONS OF FUELS REGULATIONS ...... $32,500 42 U.S.C. 9604(e)(5)(B) ...... SUPERFUND AMEND. & REAUTHORIZATION ACT/ $32,500 NONCOMPLIANCE W/REQUEST FOR INFO OR AC- CESS. 42 U.S.C. 9606(b)(1)...... SUPERFUND/WORK NOT PERFORMED W/IMMI- $32,500 NENT, SUBSTANTIAL ENDANGERMENT. 42 U.S.C. 9609(a)&(b) ...... SUPERFUND/ADMIN. PENALTY VIOLATIONS UNDER $32,500 42 U.S.C. SECT. 9603, 9608, OR 9622. 42 U.S.C. 9609(b) ...... SUPERFUND/ADMIN. PENALTY VIOLATIONS—SUB- $92,500 SEQUENT. 42 U.S.C. 9609(c) ...... SUPERFUND/CIVIL JUDICIAL PENALTY/VIOLATIONS $32,500 OF SECT. 9603, 9608, 9622. 42 U.S.C. 9609(c) ...... SUPERFUND/CIVIL JUDICIAL PENALTY/SUBSE- $92,500 QUENT VIOLATIONS OF SECT. 9603, 9608, 9622. 42 U.S.C. 11045(a)&(b)(1), (2) & (3) ...... EMERGENCY PLANNING AND COMMUNITY RIGHT- $32,500 TO-KNOW ACT CLASS I & II ADMINISTRATIVE AND CIVIL PENALTIES. 42 U.S.C. 11045(b)(2) & (3) ...... EPCRA CLASS I & II ADMINISTRATIVE AND CIVIL $92,500 PENALTIES—SUBSEQUENT VIOLATIONS. 42 U.S.C. 11045(c)(1) ...... EPCRA CIVIL AND ADMINISTRATIVE REPORTING $32,500 PENALTIES FOR VIOLATIONS OF SECTIONS 11022 OR 11023. 42 U.S.C. 11045(c)(2) ...... EPCRA CIVIL AND ADMINISTRATIVE REPORTING $11,000 PENALTIES FOR VIOLATIONS OF SECTIONS 11021 OR 11043(b). 42 U.S.C. 11045(d)(1) ...... EPCRA—FRIVOLOUS TRADE SECRET CLAIMS— $32,500 per barrel or unit. CIVIL AND ADMINISTRATIVE PENALTIES.
PART 27—[AMENDED] penalty of not more than $6,500 1 for penalty of not more than $6,500 2 for each such claim. each such statement. 2. The authority citation for Part 27 * * * * * * * * * * continues to read as follows: (b) * * * [FR Doc. 03–16925 Filed 7–2–03; 8:45 am] Authority: 31 U.S.C. 3801–3812; Pub. L. (1) * * * BILLING CODE 6560–50–P 101–410, 104 Stat. 890, 28 U.S.C. 2461 note; Pub L. 104–134, 110 Stat. 1321, 31 U.S.C. (ii) Contains, or is accompanied by, an 3701 note. express certification or affirmation of the truthfulness and accuracy of the 3. Section 27.3 is amended by revising contents of the statement, shall be paragraphs (a)(1)(iv) and (b)(1)(ii) to subject, in addition to any other remedy read as follows: that may be prescribed by law, to a civil § 27.3 Basis for civil penalties and assessments. (a) * * * (1) * * * 1 As adjusted in accordance with the Federal Civil (iv) Is for payment for the provision Penalties Inflation Adjustment Act of 1990 (Pub. L. of property or services which the person 101–410, 104 Stat. 890), as amended by the Debt has not provided as claimed, shall be Collection Improvement Act of 1996 (Pub. L. 104– 2 As adjusted in accordance with the Federal Civil subject, in addition to any other remedy 134, 110 Stat. 1321). [The regulatory penalty Penalties Inflation Adjustment Act of 1990 (Pub. L. provisions of this part effective on January 30, 1997 101–410, 104 Stat. 890), as amended by the Debt that may be prescribed by law, to a civil remain in effect for any violation of law occurring Collection Improvement Act of 1996 (Pub. L. 104– between January 30, 1997 and July 3, 2003. 134, 110 Stat. 1321).
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ENVIRONMENTAL PROTECTION public hearing, contact Kathy Kaufman, select ‘‘search,’’ then key in the docket AGENCY Integrated Policies and Strategies Group, identification number OAR–2002–0076. (919) 541–0102 or by e-mail Outline. The contents of today’s 40 CFR Part 51 [email protected]. preamble are listed in the following outline. [FRL–7522–6] SUPPLEMENTARY INFORMATION: I. Background Revisions to the Regional Haze Rule Regulated Entities A. What is the regional haze rule? To Correct Mobile Source Provisions B. What are the special provisions for in Optional Program for Nine Western Entities potentially regulated by this Western States and eligible Indian Tribes States and Eligible Indian Tribes action are nine States in the Western in 40 CFR 51.309 of the regional haze Within That Geographic Area United States (Arizona, California, rule? Colorado, Idaho, Nevada, New Mexico, II. Changes to the Mobile Source Provisions AGENCY: Environmental Protection Oregon, Utah and Wyoming) and Indian of Section 309 Agency (EPA). Tribes within that same geographic area. A. Why are we changing the mobile source provisions of 40 CFR 51.309? ACTION: Proposed rule. This proposed action, and an earlier B. What are the specific changes to the action taken by EPA in 1999, provides mobile source provisions of 40 CFR SUMMARY: The EPA is proposing to these States and Tribes with an optional 51.309? approve a correction to the mobile program to protect visibility in federally III. Statutory and Executive Order Reviews source provisions in the EPA’s regional protected scenic areas. The portion of A. Executive Order 12866: Regulatory haze rule. This correction is consistent the program addressed by this proposed Planning and Review with recommendations of the Western rule is a program for tracking of mobile B. Paperwork Reduction Act Regional Air Partnership (WRAP). The source emissions under the 1999 rule. C. Regulatory Flexibility Act amendments to the rule are intended to D. Unfunded Mandates Reform Act Docket. The EPA has established an E. Executive Order 13132: Federalism address an emissions projection official public docket for this action F. Executive Order 13175: Consultation scenario for mobile sources which was under Docket No. OAR–2002–0076. The and Coordination With Indian Tribal not addressed when EPA published the official public docket consists of the Governments regional haze rule in 1999. documents specifically referenced in G. Executive Order 13045: Protection of DATES: Comments on this proposal must this action, any public comments Children from Environmental Health and be received by August 4, 2003. received, and other information related Safety Risks H. Executive Order 13211: Actions that In the ‘‘Final Rules’’ section of today’s to this action. Although a part of the Federal Register, we are publishing a Significantly Affect Energy Supply, official docket, the public docket does Distribution or Use direct final rule that matches the not include confidential business I. National Technology Transfer substance of this proposed rule. If the information or other information whose Advancement Act Agency receives adverse comment or a disclosure is restricted by statute. The J. Executive Order 12898: Federal Actions request for public hearing by August 4, official public docket is the collection of To Address Environmental Justice in 2003, we will withdraw the direct final materials that is available for public Minority Populations and Low-Income rule by publishing a timely withdrawal viewing at the Air Docket in the EPA Populations notice in the Federal Register. If the Docket Center, Room B102, 1301 IV. Statutory Provisions and Legal Authority Agency receives no adverse comments Constitution Ave., NW., Washington, I. Background to this proposed rule, the direct final DC. The EPA Docket Center Public rule is effective September 2, 2003. Reading Room is open from 8:30 a.m. to A. What Is the Regional Haze Rule? ADDRESSES: All comments should be 4:30 p.m., Monday through Friday, Section 169(A) of the Clean Air Act submitted to Docket No. OAR–2002– excluding legal holidays. The telephone (CAA) establishes a national goal for 0076. When mailing documents, number for the Reading Room is (202) protecting visibility in federally- comments, or requests to the EPA 566–1744, and the telephone number for protected scenic areas. These ‘‘Class I’’ Docket Center through the U.S. Postal the Air Docket is (202) 566–1742. A areas include national parks and Service, please use the following reasonable fee may be charged for wilderness areas. The national visibility address: U.S. Environmental Protection copying. goal is to remedy existing impairment Agency, EPA West (Air Docket), 1200 Electronic Access. You may access and prevent future impairment in these Pennsylvania Avenue, NW., Room this Federal Register document Class I areas, consistent with the B108; Mail Code: 6102T, Washington, electronically through the EPA Internet requirements of sections 169A and 169B DC 20460. To mail comments or under the ‘‘Federal Register’’ listings at of the CAA. documents through a courier service, http://www.epa.gov/fedrgstr/. An Regional haze is a type of visibility the mailing address is: EPA Docket electronic version of the public docket impairment caused by air pollutants Center (Air Docket), U.S. Environmental is available through EPA’s electronic emitted by numerous sources across a Protection Agency, 1301 Constitution public docket and comment system, broad region. The EPA uses the term Avenue, NW., Room B108; Mail Code: EPA Dockets. You may use EPA Dockets regional haze to distinguish this type of 6102T, Washington, DC 20004. The at http://www.epa.gov/edocket/ to view visibility problem from those which are normal business hours are 8:30 a.m. to public comments, access the index more local in nature. In 1999, EPA 4:30 p.m., excluding legal holidays. listing of the contents of the official issued a regional haze rule requiring Comments can be submitted to the public docket, and to access those States to develop implementation plans address above, by fax (202) 566–1741, or documents in the public docket that are that will make ‘‘reasonable progress’’ by e-mail to [email protected]. available electronically. Although not toward the national visibility goal (64 The voice telephone number is (202) all docket materials may be available FR 35714, July 1, 1999). The first State 566–1742. electronically, you may still access any plans for regional haze are due between FOR FURTHER INFORMATION CONTACT: If of the publicly available docket 2003 and 2008. The regional haze rule you would like further information materials through the docket facility provisions appear at 40 CFR 51.308 and about this proposed rule or to request a identified above. Once in the system, 40 CFR 51.309.
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B. What Are the Special Provisions for between the year 2003, when the lowest in 2005, and subsequently rising, Western States and Eligible Indian implementation plans are due,2 and the mobile source emissions for all Tribes in 40 CFR 51.309 of the Regional year 2018. The provisions address pollutants except sulfur dioxide (SO2) Haze Rule? emissions from stationary sources, are expected to decline continuously The regional haze rule at 40 CFR mobile sources, and area sources such over the course of the first regional haze 51.308 sets forth the requirements for as emissions from fires and windblown planning period. State implementation plans (SIPs) under dust. The projected trends for mobile the regional haze program. The rule source emissions of SO2 differ from II. Changes to the Mobile Source those of other pollutants. Emission requires State plans to include visibility Provisions of Section 309 progress goals for each Class I area, as reductions from pollutants such as well as emissions reductions strategies A. Why Are We Changing the Mobile nitrogen oxides (NOX) and particulate and other measures needed to meet Source Provisions of 40 CFR 51.309? matter (PM) are dependent on technological changes to the onroad these goals. The rule also provides an 1. What Is the Basis for the Old fleet and to nonroad engines which are optional approach, described in 40 CFR Provisions? 51.309, that may be followed by the implemented gradually. In contrast, SO2 The GCVTC determined that mobile nine Western States (Arizona, emissions reductions are immediately source emissions need to be an essential California, Colorado, Idaho, Nevada, realized when the sulfur content of the part of a strategy to reduce haze on the New Mexico, Oregon, Utah, and fuel changes, because emissions from Colorado Plateau. Therefore, one Wyoming) that comprise the transport both new and existing engines element of the GCVTC’s strategy, as region analyzed by the Grand Canyon immediately drop sharply. We have reflected in 40 CFR 51.309(d)(5), was to Visibility Transport Commission already published stringent fuel sulfur address mobile source emissions. (GCVTC) during the 1990’s. This limits for onroad engines and have Section 309 also requires States to optional approach is also available to proposed stringent fuel sulfur limits for establish a mobile source emissions 5 eligible Indian Tribes within this nonroad engines. These Federal fuel budget for each area that significantly geographic region. The regulatory sulfur regulations, fully implemented, contributes to visibility impairment in provisions at 40 CFR 51.309 are based would together result in a substantial any of the 16 Class I areas covered by on the final report issued by the GCVTC reduction in SO2 emissions over the this section of the regulations. At the in 1996,1 which included a number of 2003—2018 planning period. time the GCVTC made its recommended emissions reductions recommendations (in 1996), mobile B. What Are the Specific Changes to the strategies designed to improve visibility source emissions were projected to be Mobile Source Provisions of 40 CFR in the 16 Class I areas on the Colorado lowest in 2005, and to subsequently rise 51.309? Plateau. In developing the regional haze rule, over the course of the first regional haze These revisions would change EPA received a number of comments on planning period (i.e., until 2018). § 51.309(d)(5)(i) to eliminate the the proposed rule encouraging the Accordingly, section 309 required requirement for setting mobile source Agency to recognize explicitly the work mobile source emissions budgets to be emissions budgets using the lowest of the GCVTC. In addition, in June 1998, set using the lowest projected level as a projected level as a planning objective Governor Leavitt of Utah provided planning objective and performance and performance indicator for each area. comments to EPA on behalf of the indicator for each area. Instead, the new § 51.309(d)(5)(i) would Western Governors Association (WGA), 2. What Is the Basis for the New substitute, as the new planning further emphasizing the commitment of Provisions? objective and performance indicator, a Western States to implementing the requirement for statewide inventories to Since the GCVTC made its show a continuous decline in emissions GCVTC recommendations. The WGA’s recommendations, new developments comments also suggested the translation of each pollutant of concern over the have caused mobile source emissions planning period. Should mobile source of the GCVTC’s recommendations into projections to change significantly. Over specific regulatory language. The EPA emissions not decline as expected, the past few years, we have promulgated States would have to revise their SIPs to issued a Notice of Availability during a series of new emissions standards for the fall of 1998 requesting further include any feasible additional several different engine types, as well as comment on the WGA’s proposal and a strategies. This new requirement new standards for diesel fuel content.3 draft set of regulatory language based conforms to trends that are currently As a result of these new standards, the upon the WGA’s recommendations. projected. WRAP, using EPA’s latest models,4 now Based on the comments received on this In addition, in light of the continuous projects a significant decline in mobile Federal Register action, EPA developed decline in mobile source emissions source emissions throughout the region the provisions set forth in 40 CFR expected over the entire region, these during the 2003–2018 time period 51.309 that allow the nine Transport revisions also eliminate the unneeded covered by the section 309 plans, Region States and eligible Tribes within requirement in § 51.309(5)(ii) and (iii) to particularly from onroad mobile that geographic area to implement many determine whether mobile sources of the GCVTC recommendations within sources. Rather than emissions being emissions constitute a significant the framework of the national regional contributor to haze in a given State. The 2 Indian Tribes are given the flexibility under EPA revisions retain the requirements for haze rule. regulations to submit implementation plans and opt The provisions in 40 CFR 51.309 into the program after the 2003 deadline. statewide inventories and performance comprise a comprehensive long-term 3 See 62 FR 25355, (May 8, 1997); 63 FR 18978, demonstrations. strategy for addressing sources that (April 16, 1998); 63 FR 56968, (October 23, 1998); Finally, the revisions contain a contribute to visibility impairment 64 FR 73300, (December 29, 1999); 65 FR 59895, backstop provision, requested by the (October 6, 2000); 66 FR 5001, (January 18, 2001); WRAP, to address any potential within this geographic region. The 67 FR 68241, (November 8, 2002); and 68 FR 9745, strategy addresses the time period (February 28, 2003). concerns regarding SO2 from nonroad 4 MOBILE6 and MOBILE6.2 for on-highway 1 Recommendations for Improving Western vehicles and the NONROAD model for nonroad 5 See http://www.epa.gov/nonroad/ [placeholder Vistas. GCVTC, June 10, 1996. vehicles. for nonroad diesel proposal, signed 4/15/03].
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sources in the event that recently to generate, maintain, retain, or disclose adverse economic impact on small proposed Federal standards, referenced or provide information to or for a entities, since the primary purpose of above, are not finalized. The backstop Federal agency. This includes the time the regulatory flexibility analyses is to provision, contained in the new needed to review instructions; develop, identify and address regulatory §51.309(d)(5)(i)(B), requires States to acquire, install, and utilize technology alternatives ‘‘which minimize any assess the need for any long-term and systems for the purposes of significant economic impact of the strategies to address SO2 from nonroad collecting, validating, and verifying proposed rule on small entities.’’ 5 mobile sources by no later than information, processing and U.S.C. 603 and 604. Thus, an agency December 31, 2008. In determining maintaining information, and disclosing may certify that a rule will not have a whether to revise their SIPs to address and providing information; adjust the significant economic impact on a SO2 from mobile sources, States may existing ways to comply with any substantial number of small entities if consider the emissions reductions previously applicable instructions and the rule relieves regulatory burden, or achieved—or anticipated—by any requirements; train personnel to be able otherwise has a positive economic effect Federal standards that are in place to respond to a collection of on all of the small entities subject to the addressing fuel sulfur content for information; search data sources; rule. nonroad engines. complete and review the collection of This proposed rule would eliminate information; and transmit or otherwise certain comprehensive requirements to III. Statutory and Executive Order disclose the information. An agency address mobile source emissions that Reviews may not conduct or sponsor, and a EPA now considers to be unnecessary. A. Executive Order 12866: Regulatory person is not required to respond to a Specifically, as discussed above, this Planning and Review collection of information unless it proposed rule would eliminate the displays a currently valid OMB control requirements in § 51.309(5)(ii) and (iii) Under Executive Order 12866 (58 FR number. The OMB control numbers for to determine whether mobile sources 51735, October 4, 1993), the Agency EPA’s regulations are listed in 40 CFR emissions constitute a significant must determine whether the regulatory part 9 and 48 CFR chapter 15. contributor to haze in a given State, and action is ‘‘significant’’ and therefore for those States with areas that meet this subject to Office of Management and C. Regulatory Flexibility Act significance criterion, to establish Budget (OMB) review and the The Regulatory Flexibility Act (RFA), mobile source emissions budgets. This requirements of the Executive Order. as amended by the Small Business proposed rule would require emissions The Order defines ‘‘significant Regulatory Enforcement Fairness Act of reductions consistent with the regulatory action’’ as one that is likely 1996 (SBREFA), 5 U.S.C. 601 et. seq., downward trend in mobile source to result in a rule that may: generally requires an agency to prepare emission inventories that is currently ‘‘(1) have an annual effect on the a regulatory flexibility analysis of any projected, based on regulations that economy of $100 million or more or rule subject to notice and comment have already been promulgated. We adversely affect in a material way the rulemaking requirements under the have therefore concluded that this economy, a sector of the economy, Administrative Procedure Act or any proposed rule would relieve regulatory productivity, competition, jobs, the other statute unless the agency certifies burden for all small entities. environment, public health or safety, or that the rule will not have a significant State, local, or Tribal governments or economic impact on a substantial D. Unfunded Mandates Reform Act communities; number of small entities. Small entities Title II of the Unfunded Mandates (2) create a serious inconsistency or include small businesses, small Reform Act of 1995 (Public Law 104–4) otherwise interfere with an action taken organizations, and small governmental (UMRA), establishes requirements for or planned by another agency; jurisdictions. Federal agencies to assess the effects of (3) materially alter the budgetary For purposes of assessing the impacts their regulatory actions on State, local, impact of entitlements, grants, user fees, of today’s proposed rulemaking on and Tribal governments and the private or loan programs or the rights and small entities, small entity is defined as: sector. Under section 202 of the UMRA, obligations of recipients thereof; or (1) A small business that is a small 2 U.S.C. 1532, EPA generally must (4) raise novel legal or policy issues industrial entity as defined in the U.S. prepare a written statement, including a arising out of legal mandates, the Small Business Administration (SBA) cost-benefit analysis, for any proposed President’s priorities, or the principles size standards (as discussed on the SBA or final rule that ‘‘includes any Federal set forth in the Executive Order.’’ Web site at http://www.sba.gov/size/ mandate that may result in the Pursuant to the terms of Executive indextableofsize.html); (2) a small expenditure by State, local, and Tribal Order 12866, we have determined that governmental jurisdiction that is a governments, in the aggregate, or by the this proposed rule is not a significant government of a city, county, town, private sector, of $100,000,000 or more regulatory action. school district or special district with a * * * in any one year.’’ A ‘‘Federal population of less than 50,000; and (3) mandate’’ is defined under section B. Paperwork Reduction Act a small organization that is any not-for- 421(6), 2 U.S.C. 658(6), to include a This action does not add any new profit enterprise which is independently ‘‘Federal intergovernmental mandate’’ requirements involving the collection of owned and operated and is not and a ‘‘Federal private sector mandate.’’ information as defined by the dominant in its field. A ‘‘Federal intergovernmental Paperwork Reduction Act, 44 U.S.C. After considering the economic mandate,’’ in turn, is defined to include 3501 et seq. The OMB has approved the impacts of today’s direct final rule on a regulation that ‘‘would impose an information collection requirements small entities, I certify that this action enforceable duty upon State, local, or contained in the final Regional Haze will not have a significant economic tribal governments,’’ section regulations (64 FR 35714, July 1, 1999) impact on a substantial number of small 421(5)(A)(i), 2 U.S.C. 658(5)(A)(i), and has assigned OMB control number entities. In determining whether a rule except for, among other things, a duty 2060–0421 (EPA ICR No. 1813.04). has a significant economic impact on a that is ‘‘a condition of Federal Burden means the total time, effort, or substantial number of small entities, the assistance,’’ section 421(5)(A)(i)(I). A financial resources expended by persons impact of concern is any significant ‘‘Federal private sector mandate’’
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includes a regulation that ‘‘would Under section 6(b) of Executive Order tribal officials in the development of impose an enforceable duty upon the 13132, EPA may not issue a regulation regulatory policies that have tribal private sector,’’ with certain exceptions, that has federalism implications, that implications.’’ ‘‘Policies that have tribal section 421(7)(A), 2 U.S.C. 658(7)(A). imposes substantial direct compliance implications’’ is defined in the Before promulgating an EPA rule for costs, and that is not required by statute, Executive Order to include regulations which a written statement is needed unless the Federal government provides that have ‘‘substantial direct effects on under section 202 of the UMRA, section the funds necessary to pay the direct one or more Indian tribes, on the 205, 2 U.S.C. 1535, of the UMRA compliance costs incurred by State and relationship between the Federal generally requires EPA to identify and local governments, or EPA consults with government and the Indian tribes, or on consider a reasonable number of State and local officials early in the the distribution of power and regulatory alternatives and adopt the process of developing a regulation. responsibilities between the Federal least costly, most cost-effective, or least Under section 6(c) of Executive Order government and Indian tribes.’’ burdensome alternative that achieves 13132, EPA may not issue a regulation This proposed rule would eliminate the objectives of the rule. that has federalism implications and certain requirements and will overall Because the entire program under 40 that preempts State law, unless EPA reduce any regulatory burden on the CFR 51.309, including today’s consults with State and local officials Tribes. Moreover, the section 309 amendments, is an option that each of early in the process of developing the program is an optional program for the States may choose to exercise, these regulation. Tribes within the same geographic revisions to section 309 do not establish This proposed rule does not have region as the WRAP states. Accordingly, any regulatory requirements that may federalism implications. It would not this proposed rule would not have tribal significantly or uniquely affect small have substantial direct effects on the implications. In addition, this proposed governments, including Tribal States, on the relationship between the rule would directly implement specific governments. The program is not national government and the States, or recommendations from the WRAP, required and, thus is clearly not a on the distribution of power and which includes representatives of Tribal ‘‘mandate.’’ Moreover, as explained responsibilities among the various governments. Thus, although this above, today’s rule eliminates certain levels of government, as specified in proposed rule would not have tribal requirements and will overall reduce Executive Order 13132. As described implications, representatives of Tribal any regulatory burdens. Accordingly, above, this proposed rule contains governments have had the opportunity this rule will not result in expenditures minor revisions to section 309 of the to provide input into development of to State, local, and tribal governments, regional haze rule which would reduce the recommendations forming its basis. in the aggregate, or the private sector, of any regulatory burden on the States. In G. Executive Order 13045: Protection of $100 million or more in any given year. addition, section 309 is an optional Children from Environmental Health Thus EPA is not obligated, under program for States. The minor revisions section 203 of UMRA, to develop a to section 309, accordingly, would not and Safety Risks small government agency plan. directly impose significant new Executive Order 13045: ‘‘Protection of We believe that this rulemaking is not requirements on State and local Children from Environmental Health subject to the requirements of UMRA. governments. Moreover, even if today’s and Safety Risks’’ (62 FR 19885, April For regional haze SIPs overall, it is proposed revisions did have federalism 23, 1997) applies to any rule that: (1) Is questionable whether a requirement to implications, these proposed revisions determined to be ‘‘economically submit a SIP revision constitutes a would not impose substantial direct significant’’ as defined under Executive Federal mandate, as discussed in the compliance costs on State or local Order 12866, and (2) concerns an preamble to the regional haze rule (64 governments, nor would they preempt environmental health or safety risk that FR 35761, July 1, 1999). However, State law. Thus, Executive Order 13132 EPA has reason to believe may have a today’s direct final rule contains no does not apply to this proposed rule. disproportionate effect on children. If Federal mandates (under the regulatory Consistent with EPA policy, we the regulatory action meets both criteria, provisions of title II of the UMRA) for nonetheless did consult with the Agency must evaluate the State, local or Tribal governments or the representatives of State and local environmental health or safety effects of private sector. In addition, the program governments in developing this the planned rule on children, and contained in 40 CFR 51.309, including proposed rule. This rule directly explain why the planned regulation is today’s revisions, is an optional implements specific recommendations preferable to other potentially effective program. from the WRAP, which includes and reasonably feasible alternatives E. Executive Order 13132: Federalism representatives from all the affected considered by the Agency. States. The EPA interprets Executive Order Executive Order 13132, entitled In the spirit of Executive Order 13132 13045 as applying only to those ‘‘Federalism’’ (64 FR 43255, August 10, and consistent with EPA policy to regulatory actions that are based on 1999), requires EPA to develop an promote communications between EPA health or safety risks, such that the accountable process to ensure and State and local governments, EPA analysis required under section 5–501 of ‘‘meaningful and timely input by State specifically solicits comment on today’s the Order has the potential to influence and local officials in the development of rule from State and local officials. the regulation. This proposed rule is not regulatory policies that have federalism subject to Executive Order 13045 F. Executive Order 13175: Consultation implications.’’ ‘‘Policies that have because it does not establish an and Coordination With Indian Tribal federalism implications’’ is defined in environmental standard intended to Governments the Executive Order to include mitigate health or safety risks. regulations that have ‘‘substantial direct Executive Order 13175, entitled effects on the States, on the relationship ‘‘Consultation and Coordination with H. Executive Order 13211: Actions that between the national government and Indian Tribal Governments’’ (65 FR Significantly Affect Energy Supply, the States, or on the distribution of 67249, November 6, 2000), requires EPA Distribution or Use power and responsibilities among the to develop an accountable process to This proposed rule is not subject to various levels of government.’’ ensure ‘‘meaningful and timely input by Executive Order 13211, ‘‘Actions that
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Significantly Affect Energy Supply, 7545(c) and (k)). These sections require of these pollutants over the period Distribution, or Use’’ (66 FR 28355, May EPA to issue regulations that will 2003–2018, no further action is required 22, 2001) because it is not a significant require States to revise their SIPs to as part of this plan to address mobile regulatory action under Executive Order ensure that reasonable progress is made source emissions of these pollutants. If 12866. toward the national visibility goals the inventories do not show a continuous decline in mobile source I. National Technology Transfer specified in section 169(A). emissions of one or more of these Advancement Act List of Subjects in 40 CFR Part 51 pollutants over the period 2003–2018, Section 12(d) of the National Environmental protection, the plan submission must provide for an Technology Transfer and Advancement Administrative practice and procedure, implementation plan revision by no Act of 1995 (‘‘NTTAA’’), Public Law Air pollution control, Carbon monoxide, later than December 31, 2008 containing 104–113, section 12(d) (15 U.S.C. 272 Nitrogen dioxide, Particulate matter, any necessary long-term strategies to note) directs EPA to use voluntary Sulfur oxides, Volatile organic achieve a continuous decline in total consensus standards in its regulatory compounds. mobile source emissions of the activities unless to do so would be Dated: June 27, 2003. pollutant(s), to the extent practicable, inconsistent with applicable law or Christine Todd Whitman, considering economic and technological otherwise impractical. Voluntary reasonableness and federal preemption Administrator. consensus standards are technical of vehicle standards and fuel standards standards (e.g., materials specifications, For the reasons set forth in the under title II of the CAA. test methods, sampling procedures, and preamble, part 51 of title 40, Chapter 1 (B) The plan submission must also business practices) that are developed or of the Code of Federal Regulations is provide for an implementation plan adopted by voluntary consensus proposed to be amended as follows: revision by no later than December 31, standards bodies. The NTTAA directs PART 51—REQUIREMENTS FOR 2008 containing any long-term strategies EPA to provide Congress, through OMB, PREPARATION, ADOPTION, AND necessary to reduce emissions of SO2 explanations when the Agency decides SUBMITTAL OF IMPLEMENTATION from nonroad mobile sources, consistent not to use available and applicable PLANS with the goal of reasonable progress. In voluntary consensus standards. assessing the need for such long-term This proposed rulemaking does not 1. The authority citation for part 51 strategies, the State may consider involve technical standards. Therefore, continues to read as follows: emissions reductions achieved or EPA is not considering the use of any anticipated from any new Federal voluntary consensus standards. We Authority: 42 U.S.C. 7410, 7414, 7421, 7470–7479, 7492, 7601, and 7602. standards for sulfur in nonroad diesel welcome comments on this aspect of the fuel. proposed rulemaking and, specifically, Subpart P—Protection of Visibility (ii) [text of (iv) retained same as invite the public to identify potentially- before] applicable voluntary consensus 2. Section 51.309 is amended by [FR Doc. 03–16923 Filed 7–2–03; 8:45 am] revising paragraphs (b)(6) and (d)(5)(i), standards and to explain why such BILLING CODE 6560–50–P standards should be used in this deleting paragraphs (d)(ii) and (d)(iii), regulation. and renumbering (d)(iv) to (d)(ii), to read as follows: J. Executive Order 12898: Federal DEPARTMENT OF THE INTERIOR Actions To Address Environmental § 51.309 Requirements related to the Justice in Minority Populations and Grand Canyon Visibility Transport Fish and Wildlife Service Low-Income Populations Commission. 50 CFR Part 17 Executive Order 12898 requires that * * * * * each Federal agency make achieving (b)(6) Continuous decline in total RIN 1018–AI68 environmental justice part of its mission mobile source emissions means that the Endangered and Threatened Wildlife by identifying and addressing, as projected level of emissions from mobile and Plants; Listing of the Central appropriate, disproportionately high sources of each listed pollutant in 2008, California Distinct Population Segment and adverse human health or 2013, and 2018, are less than the of the California Tiger Salamander; environmental effects of its programs, projected level of emissions from mobile Reclassification of the Sonoma County policies, and activities on minorities sources of each listed pollutant for the and Santa Barbara County Distinct and low-income populations. The previous period (i.e., 2008 less than Populations From Endangered to requirements of Executive Order 12898 2003; 2013 less than 2008; and 2018 less Threatened; Special Rule have been previously addressed to the than 2013). extent practicable in the Regulatory * * * * * AGENCY: Fish and Wildlife Service, Impact Analysis (RIA) for the regional (d)(5)(i) Statewide inventories of Interior. haze rule (cited above), particularly in onroad and nonroad mobile source ACTION: Proposed rule; extension of chapters 2 and 9 of the RIA. This emissions of VOC, NOX, SO2, PM2.5, comment period and notice of public proposed rule makes no changes that elemental carbon, and organic carbon hearings. would have a disproportionately high for the years 2003, 2008, 2013, and and adverse human health or 2018. SUMMARY: We, the U.S. Fish and environmental effect on minorities and (A) The inventories must demonstrate Wildlife Service, are extending the low-income populations. a continuous decline in total mobile comment period on a proposed rule that source emissions (onroad plus nonroad; would: (1) List the Central California IV. Statutory Provisions and Legal tailpipe and evaporative) of VOC, NOX, distinct population segment (DPS) of the Authority PM2.5, elemental carbon, and organic California Tiger Salamander Statutory authority for today’s carbon, evaluated separately. If the (Ambystoma californiense) as a proposed rule comes from sections inventories show a continuous decline threatened species under the 169(a) and 169(b) of the CAA (42 U.S.C. in total mobile source emissions of each Endangered Species Act of 1973, as
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amended (Act) (16 U.S.C. 1531 et seq.); by appointment, during normal business and their possible impacts on this (2) reclassify the Sonoma County and hours, at the above address. You may animal; and Santa Barbara County DPSs of the obtain copies of the proposed rule from (5) Additional information pertaining California Tiger Salamander from the above address, by calling (916) 414– to the promulgation of a special rule to endangered to threatened; and (3) 6600, or from our Web site at http:// exempt from section 9 take prohibitions exempt, under section 4(d) of the Act, sacramento.fws.gov. existing routine ranching practices existing routine ranching activities on FOR FURTHER INFORMATION CONTACT: located on private and Tribal lands. private or Tribal lands from section 9 Adam Zerrenner or Glen Tarr, Previously submitted comments need prohibitions for the three DPSs of the Sacramento Fish and Wildlife Office, California tiger salamander. Comments not be resubmitted. If you submit 2800 Cottage Way Room W–2605, comments by electronic mail (e-mail), previously submitted need not be Sacramento, CA 95825 (telephone (916) resubmitted as they will be incorporated please submit them as an ASCII file and 414–6600, facsimile (916) 414–6713, or avoid the use of special characters and into the public record as part of this visit our Web site at http:// extended comment period, and will be any form of encryption. Please also sacramento.fws.gov/). Information include ‘‘Attn: RIN 1018–AI68’’ and fully considered in the final rule. We are regarding this proposal is available in also providing two additional public your name and address in your e-mail alternative formats upon request. message. If you do not receive a hearings to receive oral comments on SUPPLEMENTARY INFORMATION: this proposed rule. confirmation from the system that we Background have received your e-mail message, DATES: Comments and information from contact us directly by calling the On May 23, 2003, we published a all interested parties will be accepted Sacramento Fish and Wildlife Office proposed rule to list the central until 5 p.m. on September 22, 2003. We (see ADDRESSES). will hold public hearings at the California DPS of the California tiger following times: salamander as a threatened species (68 Anyone wishing to make an oral (1) Tuesday, July 29, 2003, in Santa FR 28647). The rule also proposed to comment or statement for the record at Rosa, California. Two sessions: 1 p.m. reclassify the Sonoma County and Santa one of the hearings listed above is until 3 p.m. and 6 p.m. until 8 p.m. Barbara County DPSs from endangered encouraged (but not required) to also Registration will begin at 12:30 p.m. for to threatened, and to exempt, under provide a written copy of the statement the afternoon session and at 5:30 p.m. section 4(d) of the Act, existing routine and present it to us at the hearing. In the for the evening session. ranching activities from ‘‘take’’ event there is a large attendance, the (2) Thursday, July 31, 2003, in Santa prohibitions under section 9 of the Act time allotted for oral statements may be Maria, California. Two sessions: 1 p.m. for the three DPSs. For further limited. Oral and written statements until 3 p.m. and 6 p.m. until 8 p.m.. information regarding background receive equal consideration. There are Registration will begin at 12:30 p.m. for biological information, previous Federal no limits to the length of written the afternoon session and at 5:30 p.m. actions, factors affecting the subspecies, comments presented at the hearing or for the evening session. and conservation measures available to mailed, faxed, or e-mailed to us. Legal notices announcing the date, time, and ADDRESSES: these three DPSs of the California tiger (1) You may submit written comments salamander, please refer to this location of the public hearing will be to the Field Supervisor (Attn: CTS), U.S. proposed rule. published in newspapers concurrently with this Federal Register notice. Fish and Wildlife Service, Sacramento Public Comments Solicited Persons needing reasonable Fish and Wildlife Office, 2800 Cottage We intend that any final action Way, Suite W–2605, Sacramento, CA accommodations in order to attend and resulting from this proposal will be as participate in a public hearing should 95825. accurate and as effective as possible. (2) You may send comments by contact Patti Carroll at 503/231–2080 as Therefore, we are soliciting comments soon as possible. In order to allow electronic mail (e-mail) to: from the public, other concerned sufficient time to process requests, [email protected]. See the ‘‘Public governmental agencies, the scientific please call no later than 1 week before Comments Solicited’’ section below for community, industry, or any other the hearing date. file format and other information on interested party concerning this electronic filing. proposed rule. We are particularly Author (3) You may hand-deliver comments seeking comments concerning: to our Sacramento Fish and Wildlife (1) Biological, commercial trade, or The primary authors of this notice are Office at the address above. other relevant data concerning any Chris Nagano, Chief, Endangered (4) You may make oral comments at threat (or lack thereof) to the California Species Division and Glenn Tarr, Acting a public hearing. Such oral comments tiger salamander; Chief, Listing Branch (see ADDRESSES). will be transcribed and given weight (2) The location of any additional Authority equal to that of written comments. subpopulations or breeding sites of this We will hold public hearings at the species, and the reasons why any The authority for this action is the Flamingo Resort Hotel and Conference habitat should or should not be Endangered Species Act of 1973 (16 Center, 2777 Fourth St., Santa Rosa, CA, determined to be critical habitat U.S.C. 1531 et seq.). and at the Radisson Hotel Santa Maria, pursuant to section 4 of the Act; Dated: June 19, 2003. 3455 Skyway Dr., Santa Maria, CA. (3) Additional information concerning Comments and materials received, as the range, distribution, and population Thomas O. Melius, well as supporting documentation used sizes of this species; Acting Director, Fish and Wildlife Service. in the preparation of the proposed rule, (4) Current or planned activities or [FR Doc. 03–16881 Filed 7–2–03; 8:45 am] will be available for public inspection, land use practices in the subject area BILLING CODE 4310–55–P
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Notices Federal Register Vol. 68, No. 128
Thursday, July 3, 2003
This section of the FEDERAL REGISTER National Capital Region, General recordkeeping or other compliance contains documents other than rules or Services Administration; requirements for small entities other proposed rules that are applicable to the John C. Surina, Deputy Assistant than the small organizations that will public. Notices of hearings and investigations, Secretary for Administration, U.S. furnish the products to the Government. committee meetings, agency decisions and Department of Agriculture. rulings, delegations of authority, filing of 2. If approved, the action will result petitions and applications and agency Dated: June 30, 2003. in authorizing small entities to furnish statements of organization and functions are Ralston Cox, the products to the Government. examples of documents appearing in this Director, Office of Administration, Advisory section. 3. There are no known regulatory Council on Historic Preservation. alternatives which would accomplish [FR Doc. 03–16936 Filed 7–2–03; 8:45 am] the objectives of the Javits-Wagner- ADVISORY COUNCIL ON HISTORIC BILLING CODE 4310–10–M O’Day Act (41 U.S.C. 46–48c) in PRESERVATION connection with the products proposed for addition to the Procurement List. Performance Review Board COMMITTEE FOR PURCHASE FROM Comments on this certification are Appointments PEOPLE WHO ARE BLIND OR invited. SEVERELY DISABLED Commenters should identify the AGENCY: Advisory Council on Historic Preservation. Procurement List; Proposed Additions statement(s) underlying the certification on which they are providing additional ACTION: Notice of performance review AGENCY: Committee for Purchase From information. board appointments. People Who Are Blind or Severely (End of Certification) SUMMARY: This notice provides the Disabled. names of individuals who have been ACTION: Proposed additions to The following products are proposed appointed to serve as members of the procurement list. for addition to Procurement List for Performance Review Board for the production by the nonprofit agencies SUMMARY: The Committee is proposing Advisory Council on Historic listed: to add to the Procurement List products Preservation. to be furnished by nonprofit agencies Products DATES: These appointments are effective employing persons who are blind or upon publication in the Federal have other severe disabilities. Product/NSN: Folder, Classification, Register. Comments Must Be Received On or Pressboard FOR FURTHER INFORMATION CONTACT: Before: August 3, 2003. 7530–00–NIB–0672 (Legal Size—1 Ralston Cox, Director, Office of ADDRESSES: Committee for Purchase Divider/4 Part—Light Blue) Administration, Advisory Council on From People Who Are Blind or Severely 7530–00–NIB–0673 (Legal Size—1 Historic Preservation, Room 809, 1100 Disabled, Jefferson Plaza 2, Suite 10800, Divider/6 Part—Red) Pennsylvania Avenue, NW., 1421 Jefferson Davis Highway, Arlington, Virginia, 22202–3259. 7530–00–NIB–0674 (Legal Size—1 Washington, DC 20004–2501. Divider/4 Part—Dark Blue) Telephone Number: (202) 606–8528. FOR FURTHER INFORMATION CONTACT: Sheryl D. Kennerly, (703) 603–7740. 7530–00–NIB–0675 (Legal Size—1 Senior Executive Service Performance Divider/4 Part—Green) Review Board SUPPLEMENTARY INFORMATION: This notice is published pursuant to 41 U.S.C 7530–00–NIB–0676 (Legal Size—1 The following individuals have been 47(a)(2) and 41 CFR 51–2.3. Its purpose Divider/4 Part—Yellow) appointed to serve on the Performance is to provide interested persons an 7530–00–NIB–0679 (Letter Size—2 Review Board for the Advisory Council opportunity to submit comments of the Divider/6 Part—Gray/Green) on Historic Preservation. proposed actions. Bernadette Castro, Vice Chairman of If the Committee approves the NPA: Georgia Industries for the Blind, the Advisory Council on Historic proposed additions, the entities of the Bainbridge, Georgia. Preservation and Commissioner, New Federal Government identified in the Contract Activity: Office Supplies & York State Office of Parks, Recreation, notice for each product will be required Paper Products Acquisition Center, and Historic Preservation; to procure the products listed below New York, New York. Nelson R. Bregon, Deputy Assistant from nonprofit agencies employing Product/NSN: Jumbo Butterfly Mop, Secretary for Grant Programs, Office of persons who are blind or have other M.R. 1035. Community Planning and Development, severe disabilities. U.S. Department of Housing and Urban NPA: L.C. Industries For The Blind, Development; Regulatory Flexibility Act Certification Inc., Durham, North Carolina. Patrick J. Meehan, Jr., Director, I certify that the following action will Contract Activity: Defense Commissary Program Integration, Office of the not have a significant impact on a Agency (DeCA), Ft. Lee, Virginia. Deputy Undersecretary of Defense for substantial number of small entities. Installations and Environment, U.S. The major factors considered for this Sheryl D. Kennerly, Department of Defense; certification were: Director, Information Management. Anthony E. Costa, Assistant Regional 1. If approved, the action will not [FR Doc. 03–16945 Filed 7–2–03; 8:45 am] Administrator, Public Buildings Service, result in any additional reporting, BILLING CODE 6353–01–P
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COMMITTEE FOR PURCHASE FROM Services NPA: New Leaf, Inc., Oak Harbor, PEOPLE WHO ARE BLIND OR Service Type/Location: Grounds Washington. SEVERELY DISABLED Maintenance, U.S. Border Station, Contract Activity: Department of the St. John Highway, New York. Navy. Procurement List; Additions NPA: Clinton County Chapter, Service Type/Location: Grounds AGENCY: Committee for Purchase From NYSARC, Inc., Plattsburgh, New Maintenance, Puget Sound Naval People Who Are Blind or Severely York. Shipyard, Bremerton, Washington. Disabled. Contract Activity: GSA/PBS Upstate NPA: Peninsula Services, Bremerton, New York Service Center , Washington. ACTION: Additions to procurement list. Syracuse, New York. Contract Activity: Department of the Navy. SUMMARY: This action adds to the Service Type/Location: Janitorial/ Procurement List services to be Custodial, Fridley USARC, Service Type/Location: Grounds furnished by nonprofit agencies Covington, Virginia. Maintenance, Keyport Naval employing persons who are blind or NPA: Jackson River Enterprises, Undersea Warfare Center, Keyport, have other severe disabilities. Covington, Virginia. Washington. Contract Activity: 99th Regional NPA: Peninsula Services, Bremerton, EFFECTIVE DATE: August 3, 2003. Support Command, Coraopolis, Washington. ADDRESSES: Committee for Purchase Pennsylvania. Contract Activity: Department of the From People Who Are Blind or Severely This action does not affect current Navy. Disabled, Jefferson Plaza 2, Suite 10800, contracts awarded prior to the effective Service Type/Location: Grounds 1421 Jefferson Davis Highway, date of this addition or options that may Maintenance, Fox Island Acoustic Arlington, Virginia, 22202–3259. be exercised under those contracts. Laboratory, Fox Island, Washington. FOR FURTHER INFORMATION CONTACT: Sheryl D. Kennerly, NPA: Peninsula Services, Bremerton, Sheryl D. Kennerly, (703) 603–7740. Director, Information Management. Washington. Contract Activity: Department of the SUPPLEMENTARY INFORMATION: On April [FR Doc. 03–16946 Filed 7–2–03; 8:45 am] Navy. 18, and April 25, 2003, the Committee BILLING CODE 6353–01–P for Purchase From People Who Are Service Type/Location: Grounds Blind or Severely Disabled published Maintenance, Janitorial/Custodial, notice (68 FR 19188, and 20371) of COMMITTEE FOR PURCHASE FROM Grounds Maintenance, Mess proposed additions to the Procurement PEOPLE WHO ARE BLIND OR Attendant (The Grounds List. SEVERELY DISABLED Maintenance Portion of this project After consideration of the material will be consolidated October 1, presented to it concerning capability of Procurement List; Redesignation of 2003), Naval Station Everett, qualified nonprofit agencies to provide Services Everett, Washington. the services and impact of the additions NPA: Northwest Center for the AGENCY: Committee for Purchase from on the current or most recent Retarded, Seattle, Washington. People Who Are Blind or Severely contractors, the Committee has Contract Activity: Department of the Disabled. determined that the services listed Navy. below are suitable for procurement by ACTION: Redesignation of procurement Service Type/Location: Grounds the Federal Government under 41 U.S.C. list services. Maintenance, Naval Ordnance 46–48c and 41 CFR 51–2.4. SUMMARY: This notice redesignates Center, Pacific Division, Detachment Port Hadlock, Port Regulatory Flexibility Act Certification services on the Procurement List which will be procured on a consolidated basis Hadlock, Washington. I certify that the following action will rather than individually. These services NPA: Skookum Education Programs, not have a significant impact on a are being performed for the Department Port Townsend, Washington. substantial number of small entities. of the Navy in the Puget Sound area. Contract Activity: Department of the The major factors considered for this Comments on this redesignation must Navy. certification were: be received by August 3, 2003. The above services will be procured 1. The action will not result in any EFFECTIVE DATE: July 3, 2003. by the Department of the Navy on a additional reporting, recordkeeping or consolidated basis and are thus being ADDRESSES: Committee for Purchase other compliance requirements for small redesignated collectively on the From People Who Are Blind or Severely entities other than the small Procurement List as set forth below, and Disabled, Jefferson Plaza 2, Suite 10800, organizations that will furnish the the nonprofit agency identified below 1421 Jefferson Davis Highway, services to the Government. has been designated as the qualified Arlington, Virginia, 22202–3259. 2. The action will result in nonprofit agency which will serve as authorizing small entities to furnish the FOR FURTHER INFORMATION CONTACT: prime contractor for the consolidated services to the Government. Sheryl D. Kennerly, (703) 603–7740. services. The services identified above 3. There are no known regulatory SUPPLEMENTARY INFORMATION: The will remain on the Procurement List for alternatives which would accomplish following services are on the performance by the above-designated the objectives of the Javits-Wagner- Procurement List to be performed by the nonprofit agencies. O’Day Act (41 U.S.C. 46–48c) in designated nonprofit agencies for the Service Type/Location: Facility Support connection with the services proposed Department of the Navy activities Services, Various locations in the for addition to the Procurement List. identified below: Navy Region Northwest. Service Type/Location: Grounds NPA: Skookum Educational Programs, (End of Certification) Maintenance, Whidbey Island Port Townsend, Washington. Accordingly, the following services Naval Air Station, Oak Harbor, Contract Activity: Engineering Field are added to the Procurement List: Washington. Activity, Naval Facilities
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Engineering Command, Department COMMISSION ON CIVIL RIGHTS projects and gather input regarding of the Navy, Poulsboro, meaningful and measurable SAC Washington. Agenda and Notice of Public Meeting activity in the current context. of the Massachusetts Advisory This conference call is available to the Sheryl D. Kennerly, Committee public through the following call-in Director, Information Management. number: 1–800–659–1145, access code Notice is hereby given, pursuant to [FR Doc. 03–16947 Filed 7–2–03; 8:45 am] number: 17780815, contact name is the provisions of the rules and Edward Darden. Any interested member BILLING CODE 6353–01–P regulations of the U.S. Commission on of the public may call this number and Civil Rights, that a conference call of the listen to the meeting. Callers can expect Massachusetts Advisory Committee to to incur charges for calls not initiated the Commission will convene at 1 p.m. using the supplied call-in number or COMMISSION ON CIVIL RIGHTS and adjourn at 2 p.m. on Thursday, July over wireless lines and the Commission 17, 2003. The purpose of the conference Agenda and Notice of Public Meeting will not refund any incurred charges. call is for the project planning of the Delaware Advisory Committee Callers will incur no charge for calls subcommittee to discuss and choose using the call-in number over land-line project topic and alternatives to present Notice is hereby given, pursuant to connections. Persons with hearing to the full committee. impairments may also follow the the provisions of the rules and This conference call is available to the proceedings by first calling the Federal regulations of the U.S. Commission on public through the following call-in Relay Service at 1–800–977–8339 and Civil Rights, that a conference call of the number: 1–888–532–3522, access code: providing the Service with the Delaware Advisory Committee will 17805880, contact name Aonghas St- conference call number and contact convene at 1 p.m. and adjourn at 3:30 Hilaire. Any interested member of the name. p.m. on Tuesday, July 15, 2003. The public may call this number and listen To ensure that the Commission purpose of the conference call is to plan to the meeting. Callers can expect to secures an appropriate number of lines projects and gather input on meaningful incur charges for calls not initiated for the public, persons are asked to and measurable SAC activity. using the supplied call-in number or register by contacting Edward Darden of over wireless lines and the Commission This conference call is available to the the Eastern Regional Office, (202) 376– will not refund any incurred charges. public through the following call-in 7533, TDD (202) 376–8116 by 1 p.m. on Callers will incur no charge for calls number: 1–800–659–8292, access code Tuesday, July 15, 2003. 17529964, contact name Edward using the call-in number over land-line The meeting will be conducted Darden. Any interested member of the connections. Persons with hearing pursuant to the provisions of the rules public may call this number and listen impairments may also follow the and regulations of the Commission. proceedings by first calling the Federal to the meeting. Callers can expect to Relay Service at 1–800–977–8339 and Dated at Washington, DC, June 26, 2003. incur charges for calls not initiated providing the Service with the Ivy L. Davis, using the supplied call-in number or conference call number and contact Chief, Regional Programs Coordination Unit. over wireless lines and the Commission name. [FR Doc. 03–16933 Filed 7–2–03; 8:45 am] will not refund any incurred charges. To ensure that the Commission BILLING CODE 6335–01–M Callers will incur no charge for calls secures an appropriate number of lines using the call-in number over land-line for the public, persons are asked to connections. Persons with hearing register by contacting Aonghas St- DEPARTMENT OF COMMERCE impairments may also follow the Hilaire of the Eastern Regional Office, proceedings by first calling the Federal 202–376–7533 (TDD 202–376–8116), by Foreign-Trade Zones Board Relay Service at 1–800–977–8339 and 4 p.m. on Wednesday, July 16, 2003. providing the Service with the The meeting will be conducted [Docket 33–2003] conference call number and [contact pursuant to the provisions of the rules Foreign-Trade Zone 40—Cleveland, name or access code number, which and regulations of the Commission. OH, Area Application for Expansion ever you select]. Dated at Washington, DC, June 26, 2003. An application has been submitted to To ensure that the Commission Ivy L. Davis, the Foreign-Trade Zones (FTZ) Board secures an appropriate number of lines Chief, Regional Programs Coordination Unit. (the Board), by the Cleveland-Cuyahoga for the public, persons are asked to [FR Doc. 03–16932 Filed 7–2–03; 8:45 am] County Port Authority, grantee of register by contacting Edward Darden of BILLING CODE 6335–01–P Foreign-Trade Zone 40, requesting the Eastern Regional Office, 202–376– authority to expand its zone in the 7533, TDD number 202–376–8116, by 1 Cleveland, Ohio, area, within the p.m. on Monday, July 14, 2003. COMMISSION ON CIVIL RIGHTS Cleveland Customs port of entry. The The meeting will be conducted Agenda and Notice of Public Meeting application was submitted pursuant to pursuant to the provisions of the rules of the Virginia Advisory Committee the provisions of the Foreign-Trade and regulations of the Commission. Zones Act, as amended (19 U.S.C. 81a– Notice is hereby given, pursuant to 81u), and the regulations of the Board Dated at Washington, DC, June 26, 2003. the provisions of the rules and (15 CFR part 400). It was formally filed Ivy L. Davis, regulations of the U.S. Commission on on June 27, 2003. Chief, Regional Programs Coordination Unit. Civil Rights, that a conference call of the FTZ 40 was approved on September [FR Doc. 03–16934 Filed 7–2–03; 8:45 am] Virginia Advisory Committee will 29, 1978 (Board Order 135, 43 FR 46886, BILLING CODE 6335–01–P convene at 1 p.m. and adjourn at 3:30 10/11/78) and expanded in June 1982 p.m. on Wednesday, July 16, 2003. The (Board Order 194, 47 FR 27579, 6/25/ purpose of the conference call is to 82); April 1992 (Board Order 574, 57 FR make plans that advance current SAC 13694, 4/17/92); February 1997 (Board
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Order 870, 62 FR 7750, 2/20/97; June has been designated examiner to determination in the antidumping duty 1999 (Board Order 1040, 64 FR 33242, investigate the application and report to investigation of high and ultra-high 6/22/99); and, April 2002 (Board Order the Board. voltage ceramic station post insulators 1224, 67 FR 20087, 4/15/02). The Public comment on the application is (HVSPs) from Japan. The deadline for general-purpose zone project currently invited from interested parties. issuing the final determination in this consists of the following sites in the Submissions (original and 3 copies) investigation is now October 29, 2003. Cleveland, Ohio, area: Site 1 (94 shall be addressed to the Board’s SUPPLEMENTARY INFORMATION: acres)—Port of Cleveland complex on Executive Secretary at one of the Lake Erie at the mouth of the Cuyahoga following addresses: Background River, Cleveland; Site 2 (128 acres)—the 1. Submissions via Express/Package On June 16, 2003, the Department IX Center (formerly the ‘‘Cleveland Tank Delivery Services: Foreign-Trade Zones published its preliminary determination Plant’’), in Brook Park, adjacent to the Board, U.S. Department of Commerce, in the investigation of HVSPs from Cleveland Hopkins International Franklin Court Building-Suite 4100W, Japan (68 FR 35627). The notice stated Airport; Site 3 (1,900 acres)—Cleveland 1099—14th Street, NW., Washington, that the Department would issue its Hopkins International Airport complex; DC 20005. final determination no later than 75 Site 4 (450 acres)—Burke Lakefront 2. Submissions via the U.S. Postal days after the date of publication of the Airport, 1501 North Marginal Road, Service: Foreign-Trade Zones Board, preliminary determination. Cleveland; Site 5 (298 acres)—Emerald U.S. Department of Commerce, FCB- Valley Business Park, Cochran Road and Suite 4100W, 1401 Constitution Postponement of Final Determination Beaver Meadow Parkway, Glenwillow; Avenue, NW., Washington, DC 20230. On June 20, 2003, the Department Site 6 (30 acres)—Collinwood site, The closing period for their receipt is received a request for postponement of South Waterloo (South Marginal) Road September 2, 2003. Rebuttal comments the final determination from NGK and East 152nd Street, Cleveland; Site 7 in response to material submitted Insulators, Ltd., a manufacturer/exporter (47 acres)—Water Tower Industrial during the foregoing period may be who accounts for a significant portion of Park, Coit Road and East 140th Street, submitted during the subsequent 15-day the exports of subject merchandise. Cleveland; Site 8 (83 acres)— period (to September 16, 2003). There are no compelling reasons for the A copy of the application and Strongsville Industrial Park, Royalton Department to deny this request. accompanying exhibits will be available Road (State Route 82), Strongsville; Site Therefore, pursuant to section 19 CFR 9 (13 acres)—East 40th Street between during this time for public inspection at address Number 1 listed above, and at 351.210(b)(2)(ii), the Department is Kelley & Perkins Avenues (3830 Kelley postponing the deadline for issuing the Avenue), Cleveland; and, Site 10 (15 the U.S. Department of Commerce Export Assistance Center, 600 Superior final determination until October 29, acres)—Frane Industrial Park, Forman 2003. Road, Ashtabula; Temporary Site 11 (15 Avenue East, Suite 700, Cleveland, OH 44114. This notice of postponement is in acres)—Snow Road Industrial Park, accordance with section 735(a)(2)(A) of 18901 Snow Road, Brook Park; and, Dated: June 27, 2003. the Tariff Act of 1930, as amended, and Temporary Site 12 (32 acres)—Tow Path Dennis Puccinelli, 19 CFR 351.210(b)(2)(ii). Valley Business Park, 3060 Eggers Executive Secretary. Dated: June 23, 2003. Avenue, Cleveland. Applications are [FR Doc. 03–16921 Filed 7–2–03; 8:45 am] Joseph A. Spetrini, pending with the FTZ Board to expand BILLING CODE 3510–DS–P existing Site 3 (Docket 38–2002), to Acting Assistant Secretary for Import expand existing Site 1 (Docket 6–2003) Administration. and to expand existing Site 8 (Docket DEPARTMENT OF COMMERCE [FR Doc. 03–16919 Filed 7–2–03; 8:45 am] 14–2003). BILLING CODE 3510–DS–P The applicant is now requesting International Trade Administration authority to expand the general-purpose [A–588–862] zone to include an additional site (New DEPARTMENT OF COMMERCE Proposed Site 11) in the City of Notice of Postponement of Final International Trade Administration Vermilion (Lorain County). New Antidumping Duty Determination: High Proposed Site 11 (172 acres, 2 parcels) and Ultra-High Voltage Ceramic Station [A–533–502] is located within the 800-acre Harbour Post Insulators from Japan Point Business Park, Baumhart Road, at Welded Carbon Steel Pipes and Tubes the intersections of U.S. Route 6 and AGENCY: Import Administration, From India Ohio Route 2, Vermilion. (Though there International Trade Administration, AGENCY: Import Administration, is an existing Site 11, it is temporary, Department of Commerce. International Trade Administration, and an application is pending with the ACTION: Postponement of final Department of Commerce. Board that would incorporate it as part antidumping duty determination. of Site 3.) The proposed zone project is ACTION: Notice of initiation of new immediately adjacent to the Ford Motor EFFECTIVE DATE: July 3, 2003. shipper antidumping duty review: Company subzone in Lorain. The site is FOR FURTHER INFORMATION CONTACT: Welded carbon steel pipes and tubes owned by Great Lakes Development, Timothy Finn or Michele Mire, AD/CVD from India. Ltd. The site will provide public Enforcement, Office 4, Group II, Import warehousing and distribution services Administration, International Trade EFFECTIVE DATE: July 3, 2003. to area businesses. No specific Administration, U.S. Department of SUMMARY: On May 30, 2003, the manufacturing requests are being made Commerce, 14th Street and Constitution Department of Commerce received a at this time. Such requests would be Avenue NW., Washington, DC 20230; request to conduct a new shipper review made to the Board on a case-by-case telephone (202) 482–0065 or (202) 482– of the antidumping duty order on basis. 4711, respectively. welded carbon steel pipes and tubes In accordance with the Board’s SUMMARY: The Department of Commerce from India. In accordance with section regulations, a member of the FTZ Staff (the Department) is postponing the final 751(a)(2)(B) of the Tariff Act of 1930, as
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amended, and 19 CFR 351.214(d), we continue to suspend liquidation of any determined by the status of the stock are initiating a new shipper review. entries of the subject merchandise and during each of the 3–year intervals. FOR FURTHER INFORMATION CONTACT: to allow, at the option of the importer, Secretarial Amendment 2 also Minoo Hatten or Mark Ross at (202) the posting of a bond or security in lieu establishes biomass-based stock 482–1690 and (202) 482–4794, of a cash deposit for each entry of the rebuilding targets and thresholds (i.e., respectively, AD/CVD Enforcement III, subject merchandise produced and maximum sustainable yield (MSY), Import Administration, International exported by Surya until the completion optimum yield (OY), maximum fishing Trade Administration, U.S. Department of the review. Surya has certified that it mortality threshold (MFMT), and of Commerce, 14th Street and both produced and exported the subject minimum stock size threshold (MSST)), Constitution Avenue, NW., Washington, merchandise on which it based the consistent with the requirements of the DC 20230. request for a new shipper review. Sustainable Fisheries Act of 1996 (SFA). SUPPLEMENTARY INFORMATION: Therefore, we will apply the bonding The intended effect of Secretarial option only to subject merchandise for Amendment 2 is to prevent overfishing Background which it is both the producer and and rebuild the greater amberjack The notice announcing the exporter. resource consistent with the antidumping duty order on welded Interested parties that need access to requirements of the Magnuson-Stevens carbon steel pipes and tubes from India proprietary information in this new Fishery Conservation and Management was published on May 12, 1986. On shipper review should submit Act (Magnuson-Stevens Act) while May 30, 2003, we received a request for applications for disclosure under minimizing, to the extent practicable, a new shipper review of the administrative protective order in adverse economic impacts on all users antidumping duty order on welded accordance with 19 CFR 351.305 and of the resource and the affected fishing carbon steel pipes and tubes from India 351.306. communities. from Surya Roshni, Ltd. (Surya), and This initiation and notice are in FOR FURTHER INFORMATION CONTACT: Phil K&K Enterprises, Inc. Surya is both the accordance with section 751(a) of the Steele, telephone: 727–570–5305, fax: producer and exporter of the subject Act and 19 CFR 351.214 and 727–570–5583, e-mail: merchandise on which its request for a 351.221(c)(1)(i). [email protected]. new shipper review is based. Dated: June 30, 2003. SUPPLEMENTARY INFORMATION: The reef Jeffrey May, Initiation of Review fish fishery in the exclusive economic Deputy Assistant Secretary for Import zone of the Gulf of Mexico is managed Pursuant to 19 CFR 351.214(b)(2)(i) Administration. under the Fishery Management Plan for and (iii)(A), Surya provided a [FR Doc. 03–16920 Filed 7–2–03; 8:45 am] the Reef Fish Resources of the Gulf of certification that it did not export BILLING CODE 3510–DS–P Mexico (FMP). The FMP was prepared subject merchandise to the United by the Council and is implemented States during the period of investigation under the authority of the Magnuson- (POI) and, that since the initiation of the DEPARTMENT OF COMMERCE Stevens Act by regulations at 50 CFR investigation, it has never been affiliated part 622. with any exporter or producer that National Oceanic and Atmospheric On March 14, 2003, NMFS published exported the subject merchandise to the Administration a notice of availability of Secretarial United States during the POI, including [I.D. 021903B] Amendment 2 and requested public those not individually examined during comment (68 FR 12344). After RIN 0648–AQ24 the investigation. considering the public comments In addition, Surya submitted Fisheries of the Caribbean, Gulf of received, NMFS approved Secretarial documentation establishing the Amendment 2, without modification, on following: (1) The date on which it first Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; June 12, 2003. The background and shipped the subject merchandise for rationale for the measures in Secretarial export to the United States and the date Rebuilding Plan for Greater Amberjack in the Gulf of Mexico Amendment 2 are contained in the on which its subject merchandise was amendment and the notice of first entered, or withdrawn from AGENCY: National Marine Fisheries availability and are not repeated here. warehouse, for consumption; (2) the Service (NMFS), National Oceanic and volume of its first shipment and the Atmospheric Administration (NOAA), Comments and Responses volume of subsequent shipments; and Commerce. NMFS received one set of comments (3) the date of its first sale to an ACTION: Notice of agency action. on Secretarial Amendment 2 from a unaffiliated customer in the United group of environmental organizations. States. SUMMARY: NMFS announces approval of Those comments and NMFS’ responses Pursuant to section 751(a)(2)(B) of the Secretarial Amendment 2 to the Reef are provided below. Tariff Act, as amended (the Act), and 19 Fish Fishery Management Plan Comment 1: NOAA Fisheries must CFR 351.214(d)(1), we are initiating a (Secretarial Amendment 2) that assess the amount and type of bycatch new shipper review for shipments of establishes a 10–year stock rebuilding occurring in each fishery and ensure welded carbon steel pipes and tubes plan for greater amberjack in the Gulf of that each plan includes conservation from India produced and exported by Mexico. The Secretary of Commerce, and management measures that, to the Surya. The period of review is May 1, acting through the Gulf of Mexico extent practicable, minimize bycatch 2002, through April 30, 2003. See 19 Fishery Management Council (Council), and minimize the mortality of such CFR 351.214(g)(1)(i)(A). We intend to prepared Secretarial Amendment 2. The bycatch that cannot be avoided. issue the final results of this review no greater amberjack rebuilding plan Response: NMFS is committed to later than 270 days from the date of consists of a series of 3–year working through the Council process for initiation. See 19 CFR 351.214(i). management goals and the associated development and implementation of We will instruct the Bureau of management measures and actions fishery management plans to minimize Customs and Border Protection to necessary to achieve those goals, as bycatch, and to the extent practicable,
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minimize the mortality of bycatch that (3.2 million kg) for years 2009–2011, NOAA Fisheries guidance documents, cannot be avoided. Within this mandate, and 7.9 million lb (3.6 million kg) for we are concerned that these landings are NMFS is working with the Council to: 2012. Additionally, the amendment overly optimistic. Our concern is that (1) promote the development and contains biomass-based definitions of the highest documented level of greater improvement of a database on bycatch maximum sustainable yield and amberjack taken in the Gulf is and bycatch mortality; (2) assess the optimum yield and adds new stock approximately 10 million lb (4.5 million effects of management measures on the status determination criteria regarding kg) in 1989. Landings from the mid amount and type of bycatch and bycatch definitions of ‘‘overfished’’ (minimum 1980s through the early 1990s averaged mortality; and (3) select measures that, stock size threshold) and ‘‘overfishing’’ approximately 6 million lb (2.7 million to the extent practicable, will minimize (maximum fishing mortality threshold). kg). High landings during these years bycatch and bycatch mortality. These criteria are necessary to meet are thought to be part of the reason Additionally, NMFS has established a requirements of the Magnuson-Stevens greater amberjack are now in an National Bycatch Working Group to Act, as amended by the Sustainable overfished state. Accordingly, we ask begin the process of developing Fisheries Act. The amendment does not that future scientific work be scientific and policy strategies for change the current fishing regulations undertaken to refine status addressing the nation’s bycatch for greater amberjack. determination criteria for this species. problems. The National Bycatch While Secretarial Amendment 2 does Response: The Preferred Alternative, Strategy consists of six components, all not specifically address bycatch Alternative 1, describes the yield that of which are being implemented within reporting methodologies or methods to would be associated with the fishing different time frames and include: (1) minimize bycatch and reduce bycatch mortality rate (F) needed to maintain a Assessing progress toward meeting the mortality, methodologies for reporting population at 30 percent spawning national bycatch goal, its supporting this information have already been potential ratio (SPR) in equilibrium objectives and strategies, and regional implemented. The methodology for conditions and so is consistent with recommendations as set forth in NMFS’ reporting bycatch from the recreational recommendations made to the Council 1998 publication Managing the Nation’s component of the catch of greater about this species for setting MSY in the Bycatch (available at http:// amberjack was implemented through generic Sustainable Fisheries Act (SFA) www.nmfs.noaa.gov/bycatch.htm); (2) the Marine Recreational Fisheries amendment. It is also consistent with Developing a national approach to a Statistics Survey program developed by the current maximum fishing mortality standardized bycatch reporting NMFS. The commercial component of threshold (MFMT) of F30% SPR that methodology; (3) Implementing the the greater amberjack catch has been has been approved by NMFS. In the national bycatch goal through regional monitored through the commercial most recent stock assessment, the yield implementation plans; (4) Undertaking logbook program since 1992. This estimated from fishing at F30% SPR was education and outreach involving program has required that all vessels 9.5 million lb (4.3 million kg). cooperative efforts to develop effective submit a reporting form for each trip Alternative 1 is consistent with the best and efficient methods for reducing listing landings by species, numbers and available scientific estimate of what bycatch; (5) Utilizing existing pounds. Additionally, beginning in MSY should be. Fishing at or below this partnerships and developing new 2001, the NMFS Southeast Fisheries recommended level (F30% SPR) to international approaches to reducing Science Center has required 20 percent achieve this yield should allow the bycatch of living marine resources of all the permitted vessels to submit stock to be fished over the long term and including fish stocks, sea turtles, marine forms for each trip listing species maintain the highest average yield mammals, and migratory birds, where discarded as bycatch by number. possible. appropriate; and (6) Identifying new Further, additional alternatives to Further, the period of highest funding requirements to effectively address bycatch issues are currently landings for amberjack was 1986–1989 support the NMFS National Bycatch being developed for the entire reef fish when the annual landings averaged 7.7 Strategy on an ongoing basis. management unit in Amendment 18 to million lb (3.5 million kg) and peaked Comment 2: Secretarial Amendment 2 the Reef Fish Fishery Management Plan. in 1989 at 9.9 million lb (4.5 million kg). is not approvable because it does not An options paper for Amendment 18 is The most likely reason that the current address bycatch. scheduled for presentation at the Gulf of estimate of MSY is so much higher than Response: The greater amberjack Mexico Fishery Management Council historical landings is that, until 1990, resource in the Gulf of Mexico was (Council) meeting in July 2003. The there were no minimum size limits on declared overfished by NMFS on Council is tentatively scheduled to take this species. Cummings and McClellan February 9, 2001, but is not considered final action on this amendment at its (2000) indicate that prior to 1990, a to be undergoing overfishing due to November 2003 meeting. While substantial amount of small fish (less Council actions taken in 1997, 1998, Amendment 18 will focus primarily on than 16–inch (40.6–cm) fork length) and 1999. Consequently, actions to grouper management actions, it will also were landed by the fishery. Therefore, further reduce fishing mortality are not address bycatch issues for all species growth overfishing and possibly needed at this time. Through this within the reef fish fishery management recruitment overfishing may have been amendment, NMFS establishes a unit including greater amberjack. occurring. It was not until 1998 that all rebuilding plan for greater amberjack in Comment 3: Recommended Options the current management measures were the Gulf of Mexico. Actions in the for Status Determination Criteria implemented and halted overfishing. amendment include setting total Maximum Sustainable Yield (MSY) NMFS will revisit these estimates as allowable catch (TAC) for 3–year Alternatives - While Alternative 1, the new information from stock assessments intervals with TAC being set at the yield Preferred Alternative, which sets MSY becomes available. associated with year one of the 3–year at the yield value of 9.5 million lb (4.3 Optimum Yield (OY) Alternatives - interval from the constant F40% million kg) is technically consistent We have similar concerns with rebuilding stream. TAC will be 2.9 with expected values produced by the proposed Alternative 1, the Preferred million lb (1.3 million kg) for the years most recent stock assessment on greater Alternative, which sets OY at a value of 2003–2005, 5.2 million lb (2.6 million amberjack, the legal requirements of the 8.5 million lb (3.9 million kg). We are kg) for years 2006–2008, 7.0 million lb Magnuson-Stevens Act and applicable concerned that this level may be too
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high based on an analysis of past was not exceeding the expected annual ETP under certain conditions. If landings and the current condition of harvest needed for the rebuilding plan, requested by the harvesting nation, the greater amberjack. We therefore again and to provide any potential new Assistant Administrator will determine recommend that this value will be information that may be incorporated whether to make an affirmative finding reassessed at regular intervals to insure into the rebuilding plan. based upon documentary evidence its soundness. Authority: 16 U.S.C. 1801 et seq. provided by the government of the Response: According to NMFS harvesting nation, the IATTC, or the national standard guidelines on the Dated: June 27, 2003. Department of State. A finding will Magnuson-Stevens Act (50 CFR Part Rebecca Lent, remain valid for 1 year (April 1 through 600.310), OY is based on MSY or MSY Deputy Assistant Administrator for March 31) or for such other period as as it may be reduced to take into Regulatory Programs, National Marine the Assistant Administrator may account social, economic, or ecological Fisheries Service. determine. An affirmative finding factors. The guidelines go on to say that [FR Doc. 03–16880 Filed 7–2–03; 8:45 am] applies to tuna and tuna products that Councils should adopt a precautionary BILLING CODE 3510–22–S were harvested in the ETP by purse approach in specifying OY including seine vessels of the nation after March reference points set safely below limit 3, 1999, the effective date of the IDCPA. reference points and that these targets DEPARTMENT OF COMMERCE The affirmative finding process be ‘‘explicitly’’ risk averse. NMFS requires that the harvesting nation meet National Oceanic and Atmospheric technical guidance in setting an OY several conditions related to compliance Administration level suggests that OY should be set at with the International Dolphin a yield where the fishing mortality rate [I.D. 061603A] Conservation Program (IDCP). A nation is 25 percent below the limit fishing may provide information regarding mortality rate (i.e., 0.75 * FMSY). Taking and Importing of Marine compliance with the IDCP directly to Advantages of setting F at this level are: Mammals NMFS on an annual basis or may (1) the probability of exceeding the AGENCY: National Marine Fisheries authorize the IATTC to release the MFMT is low (20–30 percent), and (2) Service (NMFS), National Oceanic and information to NMFS in years when because the total mortality on the stock Atmospheric Administration (NOAA), NMFS will review and consider is reduced, the stock size is allowed to Commerce. whether to issue an affirmative finding increase. Restrepo et al. (1998) determination without an application ACTION: estimated that by fishing at 0.75 * Notice of affirmative finding from the harvesting nation. FMSY, the stock is allowed to build to renewal. An affirmative finding will be 125–131 percent of BMSY and that the SUMMARY: The Assistant Administrator terminated, in consultation with the resultant reduction in yield is only for Fisheries, NMFS, (Assistant Secretary of State, if the Assistant about 6 percent of MSY. Specifically for Administrator) renewed the affirmative Administrator determines that the greater amberjack, fishing at the FMSY finding for the Republic of Ecuador requirements of 50 CFR 216.24(f) are no proxy ( 0.75 * F30%SPR) would allow the under the Marine Mammal Protection longer being met or that a nation is stock to build to 128 percent of the Act (MMPA). This renewal allows the consistently failing to take enforcement spawning stock biomass at MSY continued importation into the United actions on violations which diminish (SSBMSY), with the resultant yield of States of yellowfin tuna and yellowfin the effectiveness of the IDCP. Every 5 about 92 percent of MSY. tuna products harvested in the eastern years, the government of the harvesting The Preferred Alternative (Alternative tropical Pacific Ocean (ETP) after March nation must request an affirmative 1) defines OY as the yield associated 3, 1999, by Ecuadorian-flag purse seine finding and submit the required with an F40% SPR when the stock is at vessels or vessels operating under documentary evidence directly to the equilibrium, and is actually more Ecuadorian jurisdiction greater than 400 Assistant Administrator. As a part of the annual review process conservative than what is recommended short tons (362.8 mt) carrying capacity. set forth in 50 CFR 216.24(f), the by NMFS. According to Turner (2002), The affirmative finding renewal was Assistant Administrator considered the estimated value of F40% SPR is 72 based on review of documentary documentary evidence submitted by the percent of F30% SPR (the proxy they evidence submitted by the Republic of used for FMSY). Based on estimates of Republic of Ecuador or obtained from Ecuador and obtained from the Inter- yield at F (8.5 million lb (3.9 million the IATTC and the Department of State 40% American Tropical Tuna Commission kg)) and at F (9.5 million lb (4.3 and determined that Ecuador has met 30% (IATTC) and the Department of State. million kg)), the OY yield from the MMPA’s requirements to receive an This finding remains in effect through Alternative 1 would be 89 percent of the affirmative finding. After consultation March 31, 2004. Preferred Alternative for MSY (the yield with the Department of State, NMFS DATES: Effective April 1, 2003, through associated with an F30%). Alternative 1 renewed the Republic of Ecuador’s also is consistent with NMFS March 31, 2004. affirmative finding allowing the recommendations for OY in the generic FOR FURTHER INFORMATION CONTACT: continued importation into the United SFA amendment that OY should Regional Administrator, Southwest States of yellowfin tuna and products correspond with a stock at 40 percent Region, NMFS, 501 West Ocean derived from yellowfin tuna harvested static SPR. Boulevard, Suite 4200, Long Beach, CA, in the ETP by Ecuadorian-flag purse NMFS will continue to provide the 90802–4213; Phone 562–980–4000; Fax seine vessels or vessels under Council with annual updates on the 562–980–4018. Ecuadorian jurisdiction greater than 400 greater amberjack harvest. These SUPPLEMENTARY INFORMATION: The short tons (362.8 metric tons) carrying updates would cover each calender year MMPA, 16 U.S.C. 1361 et seq., as capacity after March 3, 1999. This and be presented as soon as the amended by the International Dolphin renewal will remain in effect for 1 year information can be properly collated. Conservation Program Act (IDCPA) (April 1, 2003, through March 31, 2004). The purpose of these updates would be (Public Law 105–42), allows the entry In 2004, the Assistant Administrator to insure that the annual harvest by the into the United States of yellowfin tuna will determine whether the Republic of recreational and commercial fisheries harvested by purse seine vessels in the Ecuador is meeting the requirements
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under section 101(a)(2)(B) and (C) of the 1973, as amended (ESA; 16 U.S.C. 1531 SUPPLEMENTARY INFORMATION: A system MMPA. If necessary, documentary et seq.), the regulations governing the including but not limited to a low- evidence may also be requested from the taking, importing, and exporting of backscatter aperture structure, where Republic of Ecuador to determine endangered and threatened species (50 the system can include but is not whether the affirmative finding criteria CFR 222–226), and the Fur Seal Act of limited to a camera, an optical are being met. In order for the 1966, as amended (16 U.S.C. 1151 et communications system, an imaging affirmative finding for the Republic of seq.). system, a test system, and a Ecuador to be renewed after NMFS’s measurement system. annual review in 2004, the Republic of This minor amendment extends the Luz D. Ortiz, Ecuador must submit a new application expiration date of the permit to in early 2005 for an affirmative finding maintain Hawaiian monk seals Army Federal Register Liaison Officer. to be effective for the period April 1, (Monachus schauinslandi) for scientific [FR Doc. 03–16874 Filed 7–2–03; 8:45 am] 2005, through March 31, 2006, and the research and enhancement purposes BILLING CODE 3710–08–M subsequent 4 years. from June 30, 2003 to June 30, 2004. Issuance of this amendment, as Dated: June 26, 2003. required by the ESA was based on a DEPARTMENT OF DEFENSE William T. Hogarth, finding that such permit (1) was applied Assistant Administrator for Fisheries, for in good faith, (2) will not operate to Department of the Army National Marine Fisheries Service. the disadvantage of the endangered [FR Doc. 03–16878 Filed 7–2–03; 8:45 am] species which is the subject of this Availability for Non-Exclusive, Exclusive, or Partially Exclusive BILLING CODE 3510–22–S permit, and (3) is consistent with the purposes and policies set forth in Licensing of U.S. Patent Application section 2 of the ESA. Concerning Continuous Aimpoint DEPARTMENT OF COMMERCE Tracking System Dated: June 27, 2003. AGENCY: National Oceanic and Atmospheric Stephen L. Leathery, Department of the Army, DOD. Administration Chief, Permits, Conservation and Education ACTION: Notice. Division, Office of Protected Resources, [I.D. 061803K] National Marine Fisheries Service. SUMMARY: In accordance with 37 CFR [FR Doc. 03–16879 Filed 7–2–03; 8:45 am] 404.6 and 404.7, announcement is made Marine Mammals; File No. 455–1445 BILLING CODE 3510–22–S of the availability for licensing of U.S. Patent Application No. 101/103,748, AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and titled ‘‘Continuous Aimpoint Tracking Atmospheric Administration (NOAA), DEPARTMENT OF DEFENSE System’’ and filed on March 22, 2002. Commerce. The United States Government, as represented by the Secretary of the ACTION: Department of the Army Issuance of permit amendment. Army, has rights in this invention. SUMMARY: Notice is hereby given that Availability for Non-Exclusive, ADDRESSES: Commander, U.S. Army the Waikiki Aquarium, 2777 Kalakaua Exclusive, or Partially Exclusive Aviation and Missile Command, ATTN: Avenue, Honolulu, Hawaii 96815 (Dr. Licensing of U.S. Patent Application Operations of Research Technology Cindy Hunter, Principal Investigator) Concerning Aperture Stop with Low Applications, AMSAM–RD–AS–TI–HI, has been issued an amendment to Backscattering Redstone Arsenal, AL 35898–5000. scientific research and enhancement AGENCY: Department of the Army, DoD. FOR FURTHER INFORMATION CONTACT: Mr. Permit No. 455–1445–03. ACTION: Notice. Kelly McGuire at telephone 256/876– ADDRESSES: The amendment and related 8743 or e-mail: documents are available for review SUMMARY: In accordance with 37 CFR [email protected]. upon written request or by appointment 404.6 and 404.7, announcement is made SUPPLEMENTARY INFORMATION: The in the following office(s): of the availability for licensing of U.S. Continuous Aimpoint Tracking System Permits, Conservation and Education Patent Application No. 10/006,316 is comprised of a position detection Division, Office of Protected Resources, entitled ‘‘Aperture Stop with Low device (PDD) and a laser pointing device NMFS, 1315 East-West Highway, Room Backscattering,’’ filed December 4, 2001. (LDP) that projects an infrared crosshair 13705, Silver Spring, MD 20910; phone Foreign rights are also available (PCT/ onto the PDD. The PDD is coupled to a (301)713–2289; fax (301)713–0376; and US02/38225). The United States computer and comprises a multitude of Protected Species Coordinator, Pacific Government, as represented by the photodiodes and associated circuits, the Islands Regional Office, NMFS, 1601 Secretary of the Army, has rights in this photodiodes being evenly spaced and Kapiolani Blvd., Rm, 1110, Honolulu, invention. arranged to form a frame that can be HI 96814–4700; phone (808)973–2935; ADDRESSES: Commander, U.S. Army mounted on the computer so as to fax (808)973–2941. Medical Research and Materiel surround the computer video display. FOR FURTHER INFORMATION CONTACT: Command, ATTN: Command Judge When a ‘‘shot’’ is fired from the LPD, Amy Sloan or Ruth Johnson, (301)713– Advocate, MCMR–JA, 504 Scott Street, the crosshair projection is interrupted 2289. Fort Detrick, Frederick, MD 21702– briefly. The PDD determines the SUPPLEMENTARY INFORMATION: The 5012. position of the four crosshair requested amendment has been granted FOR FURTHER INFORMATION CONTACT: For intersections and reports them to the under the authority of the Marine patent issues, Ms. Elizabeth Arwine, computer which, in response, generates Mammal Protection Act of 1972, as Patent Attorney, (301) 619–7808. For the video signals that form the resolved amended (16 U.S.C. 1361 et seq.), the licensing issues, Dr. Paul Mele, Office of aimpoint on the screen, matching the Regulations Governing the Taking and Research & Technology Assessment, LPD aimpoint to the video image. Importing of Marine Mammals (50 CFR (301) 619–6664, both at telefax (301) Further, the tracking system determines part 216), the Endangered Species Act of 619–5034. the rotation of the LPD over a range of
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at least 10 degrees clockwise or counter- the meeting may be addressed to Mr. FOR FURTHER INFORMATION CONTACT: clockwise. Thomas W. Richardson, Acting Dennis Ryan, Program Director, Naval Executive Secretary, Coastal Research Advisory Committee, 800 Luz D. Ortiz, Engineering Research Board, Coastal North Quincy Street, Arlington, VA Army Federal Register Liaison Officer. and Hydraulics Laboratory, U.S. Army 22217–5660, (703) 696–6769. [FR Doc. 03–16877 Filed 7–2–03; 8:45 am] Engineer Research and Development SUPPLEMENTARY INFORMATION: This BILLING CODE 3710–08–M Center, 3909 Halls Ferry Road, notice of meeting is provided in Vicksburg, MS 39180–6199. accordance with the provisions of the SUPPLEMENTARY INFORMATION: Federal Advisory Committee Act (5 DEPARTMENT OF DEFENSE Proposed Agenda: On Tuesday, July 22, 2003, U.S.C. App. 2). All sessions of the Department of the Army presentations and discussions will meeting will be devoted to discussions pertain to the Monitoring Complete of basic and advanced research and Availability of Non-Exclusive, Navigation Projects, Coastal Field Data associated science and technology Exclusive License or Partially Collection, National Shoreline Erosion opportunities with respect to concepts Exclusive Licensing of U.S. Patent Soft Control Development and and science and technology (S&T) Landing Assembly for a Parachute Demonstration Program (Section 227), initiatives, including those in the space, and the Coastal Inlets Research Program. atmospheric, surface and subsurface AGENCY: Department of the Army, DoD. On Wednesday, July 23, 2003, environments, required to achieve the ACTION: Notice. presentations and discussions will visions of FORCEnet and Sea Power 21; include the Flood and Coastal Systems, alternative approaches to technology SUMMARY: In accordance with 37 CFR and on Thursday, July 24, 2003, acquisition that could be implemented Part 404.6, announcement is made of presentations and discussions will within the Department of the Navy’s the availability for licensing of U.S. include the Navigation Systems. acquisition system; and, initiatives Patent No. US 6,575,408 B2 entitled This meeting is open to the public, required to produce a militarily effective ‘‘Soft Landing Assembly for a but since seating capacity of the meeting Naval electromagnetic (EM) gun system. Parachute’’ issued June 10, 2003. This room is limited, advance notice of intent These briefings and discussions will patent has been assigned to the United to attend, although not required, is contain proprietary information and States Government as represented by the requested in order to assure adequate classified information that is Secretary of the Army. arrangements for those wishing to specifically authorized under criteria FOR FURTHER INFORMATION CONTACT: Mr. attend. established by Executive Order to be Robert Rosenkrans at U.S. Army Soldier kept secret in the interest of national Luz D. Ortiz, and Biological Chemical Command, defense and are in fact properly Kansas Street, Natick, MA 01760, Army Federal Register Liaison Officer. classified pursuant to such Executive phone: (508) 233–4928 or E-mail: [FR Doc. 03–16876 Filed 7–2–03; 8:45 am] Order. The proprietary, classified and [email protected]. BILLING CODE 3710–61–M non-classified matters to be discussed SUPPLEMENTARY INFORMATION: Any are so inextricably intertwined as to preclude opening any portion of the licenses granted shall comply with 35 DEPARTMENT OF DEFENSE U.S.C. 209 and 37 CFR Part 404. meeting. In accordance with 5 U.S.C. Department of the Navy App. 2, section 10(d), the Secretary of Luz D. Ortiz, the Navy has determined in writing that Army Federal Register Liaison Officer. Meeting of the Naval Research the public interest requires that all [FR Doc. 03–16875 Filed 7–2–03; 8:45 am] Advisory Committee sessions of the meeting be closed to the BILLING CODE 3710–08–M public because they will be concerned AGENCY: Department of the Navy, DoD. with matters listed in 5 U.S.C. section ACTION: Notice of closed meeting. 552b(c)(1) and (4). DEPARTMENT OF DEFENSE SUMMARY: The Naval Research Advisory Dated: June 27, 2003. Department of the Army; Corps of Committee will meet to discuss basic E.F. McDonnell, Engineers and advanced research and technology. Major, U.S. Marine Corps, Federal Register All sessions of the meetings will be Liaison Officer. Coastal Engineering Research Board devoted to briefings, discussions and [FR Doc. 03–16842 Filed 7–2–03; 8:45 am] technical examination of information BILLING CODE 3810–FF–P AGENCY: Department of the Army; Corps of Engineers, DoD. related to the application of science and technology to FORCEnet; the reform of ACTION: Notice of open meeting. technology acquisition; and the DEPARTMENT OF EDUCATION assessment of electromagnetic gun SUMMARY: In accordance with Section [CFDA No.: 84.326C] 10(a)(2) of the Federal Advisory technology. Committee Act (Pub. L. 92–463), DATES: The meetings will be held on Office of Special Education and announcement is made of the following Monday, July 21, 2003, through Friday, Rehabilitative Services; Special committee meeting: July 25, 2003, from 8 a.m. to 5 p.m. Also Education—Technical Assistance and Name of Committee: Coastal on Monday, July 28, 2003, through Dissemination To Improve Services Engineering Research Board (CERB). Thursday, July 31, 2003, from 8 a.m. to and Results for Children With Dates of Meeting: July 22–24, 2003. 5 p.m. and on Friday, August 1, 2003, Disabilities—Projects for Children and Place: Embassy Suites Downtown, from 8 a.m. to 12 p.m. Young Adults Who Are Deaf-Blind Chicago, IL. ADDRESSES: The meetings will be held at (84.326C) Times: 8 a.m. to 5 p.m. the Space and Naval Warfare Systems ACTION: Notice inviting applications for FOR FURTHER INFORMATION CONTACT: Center San Diego, 53560 Hull Street, new awards for fiscal year (FY) 2003. Inquiries and notice of intent to attend San Diego, CA.
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SUMMARY: The Assistant Secretary for application narrative, is where you, the (c) If a project maintains a Web site, Special Education and Rehabilitative applicant, address the selection criteria it must include relevant information Services invites applications for FY that reviewers use in evaluating your and documents in an accessible form on 2003 under the Special Education— application. You must limit Part III to the Web site. Technical Assistance and Dissemination the equivalent of no more than 70 pages, Priority to Improve Services and Results for using the following standards: Children with Disabilities Program. This • A ‘‘page’’ is 8.5″ x 11″ (on one side Under 34 CFR 75.105(c)(3), we program is authorized under the only) with one-inch margins at the top, consider only applications that meet the Individuals with Disabilities Education bottom, and both sides. following absolute priority: Act (IDEA), as amended. This notice • Double space (no more than three Background provides closing dates, priorities, and lines per vertical inch) all text in the IDEA includes provisions designed to other information regarding the application narrative, including titles, ensure that each child with a disability transmittal of applications. headings, footnotes, quotations, and is provided a high-quality individual Purpose of Program: This program captions, as well as all text in charts, provides technical assistance and program of services to meet his or her tables, figures, and graphs. developmental and educational needs. information that (1) support States and • Use a font that is either 12-point or local entities in building capacity to For children who are deaf and blind to larger or no smaller than 10 pitch receive such services, intensive improve early intervention, educational, (characters per inch). and transitional services and results for technical assistance must be afforded The page limit does not apply to Part State and local educational agencies, children with disabilities and their I, the cover sheet; Part II, the budget families; and (2) address goals and parents, and professionals regarding section, including the narrative budget appropriate educational placements, priorities for changing State systems justification; Part IV, the assurances and that provide early intervention, accommodations, environmental certifications; or the one-page abstract, adaptations, support services, and other educational, and transitional services the resumes, the bibliography or for children with disabilities and their matters. In addition, given the severity references, or the letters of support. of deaf-blindness and the low-incidence families. However, you must include all of the Eligible Applicants: State educational nature of this population, many early application narrative in Part III. intervention programs or local school agencies, local educational agencies, We will reject your application if— institutions of higher education, other districts lack personnel with the • You apply these standards and public agencies, nonprofit private training or experience to serve children exceed the page limit; or organizations, for-profit organizations, who are deaf-blind. • You apply other standards and outlying areas, freely associated States, exceed the equivalent of the page limit. Priority and Indian tribes or tribal organizations. This priority supports projects to Applications Available: July 7, 2003. Applicable Regulations: The Deadline for Transmittal of Education Department General build the capacity of State and local agencies, parents, and professionals to Applications: August 6, 2003. Administrative Regulations (EDGAR) in Deadline for Intergovernmental 34 CFR parts 74, 75, 77, 79, 80, 81, 82, improve outcomes for children and Review: October 6, 2003. 85, 86, 97, 98, and 99. young adults who are deaf-blind, and their families, by providing technical Estimated Available Funds: $9.5 Note: The regulations in 34 CFR part 79 million. apply to all applicants except federally assistance, information, and training on Estimated Range of Awards: recognized Indian tribes. early intervention, special education, $30,000—$575,000. related services, and transitional Estimated Average Size of Awards: Note: The regulations in 34 CFR part 86 services. Projects must: $179,000. apply to institutions of higher education (a) Identify and support specific Maximum Awards: The chart shown only. activities to, at a minimum: in the Project Award section of this (1) Enhance State capacity to improve notice lists the maximum amount of Selection Criteria services and results for children who are funds for individual States for FY 2003. In evaluating an application for a new deaf-blind; The Secretary may make awards under grant under this competition, we will (2) Facilitate the achievement of systemic-change goals by improving the priority described in the Priorities use selection criteria chosen from the education opportunities for children section to support single or multi-State general selection criteria in 34 CFR projects. A State may be served by only who are deaf-blind; 75.210 of EDGAR. The specific selection (3) Focus on implementation of one supported project. In determining criteria to be used for this competition research-based best practices; the maximum funding levels for each will be provided in the application (4) Ensure that service providers have State the Secretary considered, among package for this competition. the necessary skills to address the other things, the following factors: unique needs of children who are deaf- (1) The total number of children from General Requirements blind; and birth through age 21 in the State; (a) The projects funded under this (5) Address the needs of families of (2) Number of people in poverty in competition must make positive efforts children who are deaf-blind. the State; to employ and advance in employment (b) Maintain needs assessment (3) Previous funding levels; and qualified individuals with disabilities information to develop statewide (4) Maximum and minimum funding (see section 606 of IDEA). priorities for technical assistance, amounts. (b) Applicants and grant recipients Estimated Number of Awards: 48. information, and training across all age under this competition must involve ranges by: Note: The Department is not bound by any qualified individuals with disabilities or (1) Collecting basic demographic estimates in this notice. parents of individuals with disabilities information on children with deaf- Project Period: Up to 60 months. in planning, implementing, and blindness; Page Limit: Part III of the application evaluating the projects (see section (2) Assessing the critical needs of submitted under this notice, the 661(f)(1)(A) of IDEA). these children; and
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(3) Assessing current needs of the early intervention, special education, or 2003 FUNDING LEVELS FOR CFDA State. related services provided under Parts B NO. 84.326C—Continued (c) Develop and implement and C of IDEA. procedures to evaluate the impact of During year two, each project must State Funding program activities on services and conduct a comprehensive self- Level outcomes for children and young adults evaluation. The self-evaluation must with deaf-blindness and their families include a review of the degree to which VA ...... 234,082 VT ...... 114,301 by: the project is meeting the proposed WA ...... 195,750 (1) Evaluating the effectiveness of objectives and goals and an evaluation WV ...... 125,020 strategies in achieving program goals of the outcome data. Costs associated WY ...... 65,000 and objectives; with this on site evaluation are DC ...... 65,000 (2) Including measures of change in estimated to be $6,500 and should be Pacific ** ...... 92,000 outcomes for children; and included in the project’s second year VI ...... 30,000 (3) Consulting with the project’s budget. In addition, the Department of **Entities include outlying areas and the advisory committee regarding the Education intends to conduct a limited Freely Associated States (FAS). development of the evaluation number of on-site evaluations based on We will reject an application for a procedures. a stratified randomized sample of sites. (d) Coordinate, and collaborate with State project that proposes a budget State educational agencies, and other Project Awards exceeding the funding level for any relevant agencies and organizations, The following award amounts are for single budget period of 12 months. In including other projects serving a single budget period of 12 months: the event an applicant proposes a Multi- children who are deaf-blind under State project, the budget may not exceed IDEA. This includes specific 2003 FUNDING LEVELS FOR CFDA the sum for individual participating States. collaboration activities with the NO. 84.326C National Clearinghouse on Deaf- Waiver of Proposed Rulemaking Blindness (DB–LINK) and the Technical Funding State It is generally our practice to offer Assistance Consortium with Children Level interested parties the opportunity to and Young Adults with Deaf-Blindness AK ...... $106,971 comment on proposed priorities. (NTAC). AL ...... 185,095 However, section 661(e)(2) of IDEA (e) Disseminate effective practices and AR ...... 118,534 relevant information to families, service makes the public comment AZ ...... 175,338 requirements in the Administrative providers, LEAs, and agencies. CA ...... 575,000 (f) Prior to developing any new CO ...... 154,079 Procedure Act (5 U.S.C. 553) product, whether paper or electronic, CT ...... 104,751 inapplicable to the priority in this submit for approval a proposal MA ...... 126,661 notice. describing the content and purpose of ME ...... 65,000 Application Procedures the product to the document review NH ...... 65,807 DE ...... 83,362 Note: Some of the procedures in these board of OSEP’s Dissemination Center, FL ...... 362,027 instructions for transmitting applications which OSEP plans to fund this year. GA ...... 305,978 differ from those in the Education (g) Provide OSEP-specified technical HI ...... 77,491 Department General Administrative assistance to States. This effort may IA ...... 97,054 Regulations (EDGAR) (34 CFR 75.102). Under ID ...... 85,303 include: (1) Participation in the Administrative Procedure Act (5 U.S.C. IL ...... 335,444 collaborative Web-based technical 553) the Department generally offers IN ...... 210,093 assistance activities, or (2) coordination interested parties the opportunity to KS ...... 128,122 of and participation in State-to-State comment on proposed regulations. However, KY ...... 165,145 communities of practice. these amendments make procedural changes LA ...... 145,840 only and do not establish new substantive (h) Establish and maintain an MD ...... 164,366 policy. Therefore, under 5 U.S.C. 553(b)(A), advisory committee to assist in MI ...... 256,289 the Secretary has determined that proposed promoting project activities. Each MN ...... 171,335 rulemaking is not required. committee must include at least one MO ...... 197,129 adult with deaf-blindness and one MS ...... 133,605 Pilot Project for Electronic Submission student with deaf-blindness, a parent of MT ...... 106,123 of Applications a child with deaf-blindness, a NC ...... 313,649 representative of each State educational ND ...... 65,000 In Fiscal Year 2003, the U.S. agency and each State lead agency NE ...... 78,471 Department of Education is continuing NJ ...... 268,086 to expand its pilot project for electronic under Part C of IDEA in the State (or NM ...... 100,912 States) served by the project, and a NY ...... 575,000 submission of applications to include limited number of professionals with NV ...... 112,563 additional formula grant programs and training and experience in serving OH ...... 259,320 additional discretionary grant children with deaf-blindness. WI ...... 173,484 competitions. Special Education— (i) Budget for a three-day Project OK ...... 131,374 Technical Assistance and Dissemination Directors’ meeting in Washington, DC OR ...... 121,286 to Improve Services and Results for during each year of the project. PA ...... 371,952 Children with Disabilities Program ‘‘— In making awards under this priority, PR ...... 65,000 CFDA #84.326C is one of the programs RI ...... 79,368 the Secretary shall consider the SC ...... 154,204 included in the pilot project. If you are proposed availability of services for SD ...... 101,746 an applicant under the Special children with deaf-blindness in all areas TN ...... 238,451 Education—Technical Assistance and of the country. Funds awarded under TX ...... 575,000 Dissemination to Improve Services and this priority may not be used for direct UT ...... 92,039 Results for Children with Disabilities
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Program, you may submit your we will grant you an extension of one application package in an alternative application to us in either electronic or business day in order to transmit your format (e.g., Braille, large print, paper format. application electronically, by mail, or by audiotape, or computer diskette) on The pilot project involves the use of hand delivery. For us to grant this request to the Grants and Contracts the Electronic Grant Application System extension— Services Team listed in this section. (e-Application). Users of e-Application 1. You must be a registered user of e- However, the Department is not able to will be entering data on-line while Application, and have initiated an e- reproduce in an alternative format the completing their applications. You may Application for this competition; and standard forms included in the 2. (a) The e-Application system must not e-mail a soft copy of a grant application package. application to us. If you participate in be unavailable for 60 minutes or more this voluntary pilot project by between the hours of 8:30 and 3:30 p.m., Intergovernmental Review submitting an application electronically, Washington, DC time, on the deadline the data you enter on-line will be saved date; or The program in this notice is subject into a database. We request your (b) The e-Application system must be to the requirements of Executive Order participation in e-Application. We shall unavailable for any period of time 12372 and the regulations in 34 CFR continue to evaluate its success and during the last hour of operation (that is, part 79. One of the objectives of the solicit suggestions for improvement. for any period of time between 3:30 and Executive order is to foster an If you participate in e-Application, 4:30 p.m., Washington, DC time) on the intergovernmental partnership and a please note the following: deadline date. strengthened federalism. The Executive • Your participation is voluntary. The Department must acknowledge order relies on processes developed by • You will not receive any additional and confirm these periods of State and local governments for point value because you submit a grant unavailability before granting you an coordination and review of proposed application in electronic format, nor extension. To request this extension you Federal financial assistance. will we penalize you if you submit an must contact either (1) the person listed application in paper format. When you elsewhere in this notice under FOR This document provides early enter the e-Application system, you will FURTHER INFORMATION CONTACT or (2) the notification of our specific plans and find information about its hours of e-GRANTS help desk at 1–888–336– actions for this program. operation. 8930. Electronic Access to This Document • You may submit all documents You may access the electronic grant electronically, including the application for the Special Education— You may view this document, as well Application for Federal Education Technical Assistance and Dissemination as all other Department of Education Assistance (ED 424), Budget to Improve Services and Results for documents published in the Federal Information—Non-Construction Children with Disabilities Program at: Register, in text or Adobe Portable Programs (ED 524), and all necessary http://e-grants.ed.gov. Document Format (PDF) on the internet assurances and certifications. We have included additional at the following site: http://www.ed.gov/ • After you electronically submit information about the e-Application legislation/FedRegister. your application, you will receive an pilot project (see Parity Guidelines automatic acknowledgement, which between Paper and Electronic To use PDF you must have Adobe will include a PR/Award number (an Applications) in the application Acrobat Reader, which is available free identifying number unique to your package. at this site. If you have questions about application). For Applications Contact: Education using PDF, call the U.S. Government • Within three working days after Publications Center (ED Pubs), P.O. Box Printing Office (GPO), toll free, at 1– submitting your electronic application, 1398, Jessup, Maryland 20794–1398. 888–293–6498; or in the Washington, fax a signed copy of the Application for Telephone (toll free): 1–877–433–7827. DC, area at (202) 512–1530. FAX: 301–470–1244. If you use a Federal Education Assistance (ED 424) Note: The official version of this document telecommunications device for the deaf to the Application Control Center after is the document published in the Federal following these steps: (TDD), you may call (toll free): 1–877– Register. Free Internet access to the official 1. Print ED 424 from e-Application. 576–7734. edition of the Federal Register and the Code You may also contact ED Pubs at its 2. The institution’s Authorizing of Federal Regulations is available on GPO Web site: http://www.ed.gov/pubs/ Representative must sign this form. Access at: http://www.access.gpo/nara/ 3. Place the PR/Award number in the edpubs.html. index.html. upper right hand corner of the hard Or you may contact ED Pubs at its e- copy signature page of the ED 424. mail address: [email protected]. Program Authority: 20 U.S.C. 1485. If you request an application from ED 4. Fax the signed ED 424 to the Dated: June 30, 2003. Application Control Center at (202) Pubs, be sure to identify this 260–1349. competition as follows: CFDA 84.326C. Robert H. Pasternack, • We may request that you give us FOR FURTHER INFORMATION CONTACT: The Assistant Secretary for Special Education and original signatures on all other forms at Grants and Contracts Services Team, Rehabilitative Services. a later date. U.S. Department of Education, 400 [FR Doc. 03–16940 Filed 7–2–03; 8:45 am] • Closing Date Extension in Case of Maryland Avenue, SW., room 3317, BILLING CODE 4000–01–P System Unavailability: If you elect to Switzer Building, Washington, DC participate in the e-Application pilot for 20202–2550. Telephone: 1–202–205– the Special Education-Technical 8207. Assistance and Dissemination to If you use a telecommunications Improve Services and Results for device for the deaf (TDD), you may call Children with Disabilities Program and the Federal Information Relay Service you are prevented from submitting your (FIRS) at 1–800–877–8339. application on the closing date because Individuals with disabilities may the e-Application system is unavailable, obtain this document or a copy of the
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DEPARTMENT OF ENERGY Comment Date: July 15, 2003. and Electric Company, PacifiCorp, PGE Energy Services, Portland General Magalie R. Salas, Federal Energy Regulatory Electric Company, Powerex Commission Secretary. Corporation, (f/k/a British Columbia [FR Doc. 03–16745 Filed 7–2–03; 8:45 am] Power Exchange Corp.), Public Service BILLING CODE 6717–01–P [Docket No. EL03–204–000] Company, of Colorado, Public Service Company of New Mexico, Puget Sound AES Somerset, LLC, Complainant, v. DEPARTMENT OF ENERGY Energy, Inc., Reliant Resources, Inc., Niagara Mohawk Power Corporation, Reliant Energy Power Generation, and Respondent; Notice of Complaint Federal Energy Regulatory Reliant Energy Services, Inc., Salt River Commission Project Agricultural Improvement and June 26, 2003. Power District, San Diego Gas & Electric [Docket Nos. El03–127–000 et al.] Take notice that on June 25, 2003, Company, Sempra Energy Trading AES Somerset, LLC (Somerset) filed a American Electric Power Service Corporation, Sierra Pacific Power complaint against Niagara Mohawk Corporation et al.; Order To Show Company, Southern California Edison Power Corporation (Niagara Mohawk), Cause Concerning Gaming and/or Company, TransAlta Energy marketing requesting that the Federal Energy Anomalous Market Behavior (U.S.) Inc. and TransAlta Energy Regulatory Commission (Commission) Marketing (California), Inc., Tucson issue an order prohibiting Niagara Issued June 25, 2003. Electric Power Company, Western Area Mohawk from requiring Somerset’s Before Commissioners: Pat Wood, III, Power Administration, Williams Energy generating facility to pay retail tariff Chairman; William L. Massey, and Services Corporation. Nora Mead Brownell. charges for self-supplied station power, I. Introduction including retail charges for transmission In the matter of: EL03–137–000, and distribution service and stranded EL03–138–000, EL03–139–000, EL03– 1. As discussed below, the entities cost recovery, and barring Niagara 140–000, EL03–141–000, EL03–142– listed in the caption (Identified Entities) Mohawk from taking steps or actions to 000, EL03–143–000, EL03–144–000, appear to have participated in activities disconnect the generating facility from EL03–145–000, EL03–146–000, EL03– (Gaming Practices), that constitute the New York State bulk power 147–000, EL03–148–000, EL03–149– gaming and/or anomalous market transmission system. 000, EL03–150–000, EL03–151–000, behavior in violation of the California EL03–152–000, EL03–153–000, EL03– Independent System Operator Any person desiring to be heard or to 154–000, EL03–155–000, EL03–156– Corporation’s (ISO) and California protest this filing should file with the 000, EL03–157–000, EL03–158–000, Power Exchange’s (PX) tariffs during the Federal Energy Regulatory Commission, EL03–159–000, EL03–160–000, EL03– period January 1, 2000 to June 20, 2001, 888 First Street, NE., Washington, DC 161–000, EL03–162–000, EL03–163– that warrant a monetary remedy of 20426, in accordance with Rules 211 000, EL03–164–000, EL03–165–000, disgorgement of unjust profits and that and 214 of the Commission’s Rules of EL03–166–000, EL03–167–000, EL03– may warrant other additional, Practice and Procedure (18 CFR 385.211 168–000, EL03–169–000, EL03–170– appropriate non-monetary remedies. and 385.214). Protests will be 000, EL03–171–000, EL03–172–000, These determinations are based on considered by the Commission in EL03–173–000, EL03–174–000, EL03– certain of the tariffs’ provisions, an ISO determining the appropriate action to be 175–000, EL03–176–000, EL03–177– study, a report by Commission Staff, taken, but will not serve to make 000, EL03–178–000, EL03–179–000: and evidence and comments submitted protestants parties to the proceeding. American Electric Power Service by market participants. Any person wishing to become a party Corporation, Aquila, Inc., Arizona 2. As the Identified Entities appear to must file a motion to intervene. The Public Service Company, Automated have participated in activities that answer to the complaint and all Power Exchange, Inc., Bonneville Power constitute gaming and/or anomalous comments, interventions or protests Administration, California Department market behavior in violation of the ISO must be filed on or before the comment of Water Resources, California Power and PX tariffs, this order directs the date below. This filing is available for Exchange, Cargill-Alliant, LLC, City of Identified Entities, in a trial-type review at the Commission in the Public Anaheim, California, City of Azusa, evidentiary hearing to be held before an Reference Room or may be viewed on California, City of Glendale, California, administrative law judge (ALJ), to show the Commission’s Web site at http:// City of Pasadena, California, City of cause why their behavior, as set forth www.ferc.gov using the ‘‘FERRIS’’ link. Reeding, California, City of Riverside, infra, during the period January 1, 2000 Enter the docket number excluding the California, Coral power, LLC, Duke to June 20, 2001 1 does not constitute last three digits in the docket number Energy Trading and Marketing gaming and/or anomalous market field to access the document. For Company, Dynegy Power Marketing behavior as defined in the ISO and PX assistance, please contact FERC Online Inc., Dynegy Power Corp., El Segundo Support at Power, LLC, Long Beach Generation [email protected] or toll- 1 June 20, 2001 has been selected as the end date LLC, Cabrillo Power I LLC, and Cabrillo of the relevant period in this proceeding when a free at (866)208–3676, or for TTY, Power II LLC, Enron Power Marketing, prospective mitigation and market monitoring plan contact (202)502–8659. The answer to Inc. and Enron Energy Services Inc., F took effect. See infra note 56; see San Diego Gas & the complaint, comments, protests and P & L Energy, Idaho Power Company, Electric Co., et al., 95 FERC ¶ 61,115 (April 26, 2001 interventions may be filed electronically Order), order on reh’g, 95 FERC ¶ 61,418 (2001) Los Angeles Department of Water and (June 19, 2001 Order) (In the April 26, 2001 Order, via the Internet in lieu of paper; see 18 Power, Mirant Americans Energy the Commission issued a prospective mitigation CFR 385.2001(a)(1)(iii) and the marketing, LP, Mirant California, LLC, and market monitoring plan for wholesale sales instructions on the Commission’s Web Mirant Delta, LLC, and Mirant Potrero, through the organized real-time markets operated site under the ‘‘e-Filing’’ link. The by the ISO; the Commission acted on requests for LLC, Modesto Irrigation District, Morgan rehearing and clarification of the April 26, 2001 Commission strongly encourages Stanley Capital Group, Northern Order on June 19, 2001, modifying and expanding electronic filings. California Power Agency, Pacific Gas the mitigation plan, effective June 20, 2001.)
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tariffs.2 In addition, we also direct the 4. This order benefits customers by and recommendations not addressed in ALJ to hear evidence and render establishing procedures to address its Initial Report may be included in its findings and conclusions quantifying activities inconsistent with the ISO and Final Report.6 The Staff Final Report on the full extent to which the Identified PX tariffs during the period January 1, its fact-finding investigation was Entities may have been unjustly 2000 to June 20, 2001, consistent with publicly released on March 26, 2003.7 enriched as a result of their conduct. due process. 8. Since 1998, the ISO and PX tariffs The ALJ may recommend the monetary have contained provisions that identify II. Background remedy of disgorgement of unjust profits and prohibit ‘‘gaming’’ and ‘‘anomalous and any other additional, appropriate 5. By order issued on February 13, market behavior’’ in the sale of electric non-monetary remedies.3 For example, 2002, in Docket No. PA02–2–000, the power.8 As explained in more detail the ALJ may identify non-monetary Commission directed a Staff below, the ISO tariff, through the ISO’s remedies such as revocation of an investigation into whether any entity Market Monitoring and Information Identified Entity’s market-based rate manipulated prices in electricity or Protocol (MMIP), defines gaming, in authority and revisions to an Identified natural gas markets in the West or part, as ‘‘taking unfair advantage of the Entity’s code of conduct if the ALJ finds otherwise exercised undue influence rules and procedures set forth in the PX such remedies appropriate. over wholesale electricity prices in the or ISO tariffs, Protocols or Activity 3. Further, this order finds that certain West since January 1, 2000.4 Rules * * * to the detriment of the activities allegedly engaged in by the 6. Pursuant to the directive of the efficiency of, and of consumers in, the Identified Entities constituted Gaming February 13, 2002 Order, Staff Practices, but the circumstances in undertook a comprehensive fact-finding 6 In the Initial Report, Staff also recommended which they engaged in such activities investigation, encompassing both data that the Commission initiate FPA section 206 gathering and data analysis of physical proceedings against Enron and three of its trading do not warrant disgorgement of unjust partners. See El Paso Electric Co., et al., 100 FERC profits. This order also finds that certain and financial transactions in and out of ¶ 61,188 (2002) (El Paso Electric); Portland General activities identified below (California the California bulk power marketplace Electric Co. and Enron Power Marketing, Inc., 100 Practices) allegedly engaged in by the and related markets during 2000–2001. FERC ¶ 61,186 (2002) (Portland); Avista Staff’s investigation has included a Corporation, et al.,100 FERC ¶ 61,187 (2002) (Avista Identified Entities do not constitute Corp.). Those cases are in various stages of progress, tariff violations; instead, many were review of a wide variety of factors and with full or partial settlements having been legitimate transactions, which, while behaviors that may have influenced proposed in some. they have the superficial appearance of electric and natural gas prices in the A settlement agreement between Trial Staff and gaming, were not manipulative. This West over this period. Avista Corporation was filed on January 30, 2003 7. In August 2002, Staff released its in Avista Corp. Comments in opposition to the order also recognizes that some of the agreement were filed on February 19, 2003, by the characteristics that were used to identify Initial Report on potential manipulation City of Tacoma, Washington and the California potential Gaming Practices may also be of electric and natural gas prices in Attorney General. On May 15, 2003, Trial Staff present in certain transactions that were these markets, in which it concluded amended its study in support of the settlement not actually Gaming Practices. As a certain conduct was gaming while other agreement and requested that the agreement be 5 certified to the Commission. Additional comments result, the Identified Entities will have practices were legitimate practices. The were filed by Tacoma and California on May 27, an opportunity to submit evidence to Initial Report noted that data requests 2003, with reply comments filed by Trial Staff and the ALJ that the transactions were not were sent to over 130 sellers of Avista Corporation. The settlement agreement is wholesale electricity; entities from all awaiting a determination by the Chief Judge on Gaming Practices. whether it should be certified. Moreover, on April sectors of the industry may have 9, 2003, the Chief Judge issued an order in Avista 2 As discussed below, we will also direct the ISO engaged in such trading practices. Corp. in which he determined that the settlement to provide the Identified Entities with certain (Based on the analysis in the Initial or hearing in that proceeding will cover all issues transaction data that it relied upon in its study Report, the ISO subsequently designed raised by the Staff Final Report. Avista Corp. and which is discussed below, and contemporaneously Avista Energy Inc., Order of the Chief Judge file that data with the Commission. market screens in an effort to review its Confirming Rulings Made at Prehearing Conference 3 This potential disgorgement would apply to the transaction data and identify potential and Establishing Further Procedures, Docket No. period January 1, 2000 to June 20, 2001 and would transactions with characteristics EL02–115–000 (issued April 9, 2003). Therefore, be in addition to any refunds owed for the period indicative of these trading practices, this order does not address Avista Corp. after October 2, 2000 in the California Refund including the practices that were In the El Paso Electric proceeding, on May 28, Proceeding. By order issued on August 23, 2000, the 2003, the judge certified an uncontested settlement Commission, among other things, established a identified by Staff as legitimate to the Commission with a recommendation that it refund effective date of October 29, 2000, 60 days practices; the ISO’s results are discussed be accepted. El Paso Electric Company, et al., 103 after the date of publication in the Federal Register below.) Staff expressly noted in this FERC ¶ 63,036 (2003). Accordingly, this order does of the Commission’s intent to institute an Initial Report, however, that its not address El Paso Electric. investigation. San Diego Gas & Electric Co. v. Further, this order only addresses issues that are Sellers of Energy and Ancillary Services Into investigation into certain matters was not being litigated in the on-going Portland Markets Operated by the California Independent ongoing and that other areas of inquiry proceeding. System Operator and the California Power 7 Final Report on Price Manipulation in Western Exchange, et al., 92 FERC ¶ 61,172 (2000) (August 4 Markets: Fact-Finding Investigation of Potential 23, 2000 Order). By order issued on November 1, Fact-Finding Investigation of Potential Manipulation of Electric and Natural Gas Prices, 2000 in the same proceeding, the Commission Manipulation of Electric and Natural Gas Prices, 98 granted rehearing in part of the August 23, 2000 FERC ¶ 61,165 (2002) (February 13, 2002 Order). Docket No. PA02–2–000 (March 26, 2003) (Staff Order by changing the refund effective date from 60 The February 13, 2002 Order, of course, was not the Final Report). The Staff Final Report is available on days after publication of notice in the Federal beginning point of our investigation into the the Commission’s Web site at http://www.ferc.gov/ Register (October 29, 2000) to 60 days after the date justness and reasonableness of the rates of public western. of SDG&E’s complaint (October 2, 2000). San Diego utility sellers into the ISO and PX markets. For a 8 See California Independent System Operator Gas & Electric Co., et al., 93 FERC ¶ 61,121 at general recitation of this procedural history, Corp., 82 FERC ¶ 61,327 at 62,291 (1998); California 61,370 (2000) (November 1, 2000 Order), order on including the series of events and circumstances Power Exchange Corp., 82 FERC ¶ 61,328 at 62,296 reh’g, 97 FERC ¶ 61,275 (2001) (December 19, 2001 giving rise to the California energy crisis, see (1998); cf. AES Southland, Inc., et al., 94 FERC Order) (denying rehearing of the November 1, 2000 December 19, 2001 Order, 97 FERC ¶ 61,275 (2001). ¶ 61,248 at 61,873 & nn. 25–27, order approving Order with respect to the October 2, 2000 refund 5 Initial Report on Company-Specific Separate stipulation and consent agreement, 95 FERC effective date). In a December 15, 2000 order, the Proceeding and Generic Reevaluations; Published ¶ 61,167 (2001). Commission found that the spot markets operated Natural Gas Price Data; and Enron Trading In relevant part, the terms of the two tariffs, the by the ISO and PX were dysfunctional. San Diego Strategies: Fact-Finding Investigation of Potential ISO’s tariff and the PX’s tariff, are substantially Gas & Electric Co., et al., 93 FERC ¶ 61,294 (2000) Manipulation of Electric and Natural Gas Prices, identical. Thus, for convenience, we often refer (December 15, 2000 Order). Docket No. PA02–2–000, issued in August 2002. below only to the ISO’s tariff.
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ISO Markets.’’ 9 The ISO tariff, through allowed parties to file reply comments (October 2, 2000) concerning the market the MMIP, defines anomalous market directly with the Commission by March manipulation allegations at issue in that behavior, in part, as ‘‘behavior that 17, 2003. The Commission in a later proceeding, based on the evidence departs significantly from the normal order extended the February 28, 2003 available at that time and the refund behavior in competitive markets that do deadline to March 3, 2003, and allowed limitations set forth in section 206 of the not require continuing regulation or as the reply comments to be filed by March Federal Power Act (FPA).22 As such, we behavior leading to unusual or 20, 2003.15 These filings are referred to did not include within the scope of that unexplained market outcomes.’’ 10 The as the ‘‘100 Days Evidence.’’ 16 proceeding, conduct relating to a Staff Final Report, among other things, 10. On March 5, 2003, the portion of the period at issue here, i.e., cites to a study by the ISO,11 in which Commission issued a notice providing for the period from January 1, 2000 to the ISO identifies activities that purport that the Commission intended to October 2, 2000. In doing so, however, to fall within the definitions of gaming release: (1) All documents submitted in we noted that the Commission could and/or anomalous market behavior Docket No. PA02–2–000, except take action to address earlier periods if, identified in the ISO tariff, and which documents obtained from other Federal during those earlier periods, a seller did occurred during the period January 1, agencies in accord with the Federal not charge the filed rate or violated 2000 to June 20, 2001. Records Act, 44 U.S.C. § 3510(b), and (2) tariffs.23 Thus, for the period prior to the 9. In addition, on November 20, 2002, all documents submitted in response to October 2, 2000 refund effective date, the Commission issued an order that the Discovery Order and Rehearing the Commission can order disgorgement allowed parties in Docket Nos. EL00– Order.17 On March 21, 2003, the of monies above the post-October 2, 95–000, EL00–95–048, EL00–98–000 Commission issued an order directing 2000 refunds ordered in the California and EL00–98–042 to conduct additional the release of information no later than Refund Proceeding, if we find violations discovery into market manipulation by March 26, 2003 in accordance with the of the ISO and PX tariffs. Further, while various sellers during the western above notice.18 refund protection has been in effect for power crisis of 2000 and 2001, and 11. Finally, by order issued on April sales in the ISO and PX short-term specified procedures for adducing this 2, 2003,19 the Commission provided for energy markets since October 2, 2000, information.12 The Discovery Order the submission of briefs on Commission the Commission can additionally order allowed the parties to conduct Staff’s interpretation of the MMIP disgorgement of unjust profits for tariff discovery, review the material and provisions concerning gaming and violations that occurred after October 2, submit directly to the Commission anomalous market behavior as 2000 (i.e., to June 20, 2001).24 additional evidence and proposed new prohibiting certain practices by market and/or modified findings of fact based 2. Commission Authority With Respect participants. Thirty-three parties filed in to Governmental Entities upon proffered evidence that is either response.20 Their comments are indicative or counter-indicative of discussed below in the section on the 13. We note that several of the market manipulation, no later than MMIP provisions. Identified Entities are governmental February 28, 2003.13 On February 10, entities, subject to the jurisdictional 2003, the Commission issued an order III. Discussion exemption set forth in section 201(f) of 25 affording parties an opportunity to A. The Commission’s Authority in This the FPA. In the July 25, 2001 Order, respond to submissions made by Case as reiterated in the December 19, 2001 adverse parties.14 The Rehearing Order Order, the Commission found that 1. Commission Authority With Respect refund liability should apply to energy 9 ISO’s MMIP 2.1.3. As explained below, the to the Period Prior to October 2, 2000 sold in the ISO and PX short-term MMIP is part of the ISO tariff. 12. In our July 25, 2001 order 21 and energy markets, including that sold by 10 MMIP 2.1.1. the November 1, 2000 Order in the governmental entities. Here, as well, we 11 See Department of Market Analysis, California find that the disgorgement of unjust ISO, Analysis of Trading and Scheduling Strategies California Refund Proceeding, we Described in Enron Memos, (October 4, 2002), established a refund effective date profits for the pre-October 2, 2000 publicly released on January 6, 2003, available at period, should apply to sales made by
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clearinghouse that set a market clearing Staff Final Report notes that the MMIP unexplained market outcomes. Evidence price for all wholesale seller is one of several protocols that the of such behavior may be derived from participants, including [governmental Commission required the ISO and PX to a number of circumstances, including: entities]’’ and thus that jurisdiction may include as part of their filed rate withholding of Generation capacity properly be asserted over sales by schedules.28 The Staff Final Report also under circumstances in which it would governmental entities.26 The cites the underlying purposes of the normally be offered in a competitive Commission continued: MMIP,29discussed in MMIP 1.1 market; unexplained or unusual Here, the central transactions, (Objectives) which provides in pertinent redeclarations of availability by wholesale sales of energy in interstate part: Generators; unusual trades or commerce, were governed by FERC- This Protocol sets forth the workplan transactions; pricing and bidding approved rules and a FERC- and, where applicable, the rules under patterns that are inconsistent with jurisdictional ISO and PX * * * [and] which the ISO will monitor the ISO prevailing supply and demand thus fell within FERC’s jurisdiction Markets to identify abuses of market conditions, e.g., prices and bids that regardless of the jurisdictional nature of power, to ensure to the extent possible appear consistently excessive for or the sellers or buyers. Further, the the efficient working of the ISO Markets otherwise inconsistent with such centralized wholesale spot electricity immediately upon commencement of conditions; and unusual activity or markets operated by the California ISO their operation, and to provide for their circumstances relating to imports from and PX were established (and have been protection from abuses of market power modified) subject to FERC review and or exports to other markets or in both the short term and the long term, 33 approval. Because the market did not and from other abuses that have the exchanges. exist prior to FERC authorization, all potential to undermine their effective 2. The Staff Final Report’s Interpretation those who participated in the market functioning or overall efficiency in of the MMIP 34 had to recognize the controlling weight accordance with section 16.3 of the ISO of FERC authority. Moreover, it is fair Tariff.30 19. In brief, the Staff Final Report that all those who benefitted from this 17. The Staff Final Report also cites interprets the MMIP as ‘‘rules of the market also bear responsibility for part 2 of the MMIP which specifies what road’’ which the Commission may remedying any potential unlawful are termed ‘‘Practices Subject to enforce, and as barring the kinds of transactions that might have occurred in Scrutiny.’’ Among those practices are practices at issue here. The Staff Final the market. two that the Staff Final Report identifies Report explains that the MMIP * * * * * as being of particular concern to the enumerates objectionable practices, the Consequently, if the price for a Commission; the first is ‘‘gaming,’’ and MMIP authorizes the ISO to impose specific sale is found to be unjust and the second is ‘‘anomalous market ‘‘sanctions and penalties’’ or to refer unreasonable, then all sellers who behavior.’’ 31 Gaming is defined at matters to the Commission for obtained that price received an unjust section 2.1.3 of the ISO’s MMIP as appropriate sanctions or penalties,35 and unreasonable rate. To the extent the follows: and the MMIP was part of the ISO and Commission determines refunds are an [T]aking unfair advantage of the rules PX tariffs on file with the Commission appropriate remedy for that sale, and procedures set forth in the PX or during the relevant period.36 consumers can only be made whole by ISO Tariffs, Protocols or Activity Rules, Accordingly, entities that transact refunds from all sellers who received or of transmission constraints in periods through the ISO or PX and engage in the excessive price. As [governmental in which exist substantial Congestion, to such enumerated practices are in entity] sellers of energy and ancillary the detriment of the efficiency of, and of violation of filed tariffs. Further, the services accounted for up to 30 percent consumers in, the ISO Markets. Staff Final Report concludes that of all sales in the California centralized ‘‘Gaming’’ may also include taking various practices were violations of the ISO and PX spot markets, excluding undue advantage of other conditions MMIP and thus violations of the ISO’s that may affect the availability of them from a potential refund remedy and PX’s filed tariffs. could have a serious detrimental effect transmission and generation capacity, on consumers.27 such as loop flow, facility outages, level 3. Comments Regarding the Staff Final 15. This rationale applies equally in of hydropower output or seasonal limits Report’s Interpretation of the MMIP the context of violations of MMIP on energy imports from out-of-state, or a. Supporting Comments provisions that prohibit gaming and/or actions or behaviors that may otherwise anomalous market behavior, as such render the system and the ISO Markets 20. Several commenters supported the provisions apply to all transactions in vulnerable to price manipulation to the Commission Staff’s interpretation of the the California market. detriment of their efficiency.32 18. Anomalous market behavior is B. The MMIP’s Provisions Concerning 33 MMIP 2.1.1.5 further provides that: The Market defined at Section 2.1.1 of the ISO’s Gaming and/or Anomalous Market Surveillance Unit shall evaluate, on an ongoing MMIP: basis, whether the continued or persistent presence Behavior ‘‘Anomalous market behavior’’ *** of such circumstances indicates the presence of 1. Provisions Cited in the Staff Final is * * * behavior that departs behavior that is designed to or has the potential to distort the operation and efficient functioning of a Report significantly from the normal behavior competitive market, e.g., the strategic withholding 16. Concerning the Commission’s in competitive markets that do not and redeclaring of capacity, and whether it remedial authority with respect to the require continuing regulation or as indicates the presence and exercise of market power behavior leading to unusual or or of other unacceptable practices. Identified Entities’ alleged practices, the 34 See Staff Final Report, ch. VI at 8–10. 35 MMIP 7.3. 28 As further explained below, the MMIP has been 26 July 25, 2001 Order, 96 FERC at 61,512; accord 36 As the Staff Final Report notes, and as part of the ISO’s and PX filed tariffs since 1998. id. at 61,511–13. discussed in more detail below, the MMIP has been 29 27 Id. at 61,513 (footnote omitted); accord id. at Staff Final Report, ch. VI at 6–7. part of the ISO and PX tariffs on file with the 61,511–13. On rehearing, the Commission 30 MMIP 1.1. Commission since 1998, which encompasses the reaffirmed its jurisdiction over these transactions. 31 Staff Final Report, ch. VI at 7–10. relevant period of January 1, 2000 through June 20, December 19, 2001 Order, 97 FERC at 62,180–87. 32 MMIP 2.1.3. 2001.
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MMIP.37 They argue that: (1) The MMIP In this respect, the parties argue that the action, by either the ISO in the first is on file with the Commission as part Commission to date has never indicated instance or by the Commission, whose of a filed tariff, and has been for some that it viewed the MMIP as a bar to such role includes enforcing the terms and time, and thus can be enforced by the conduct; its orders, to the extent that conditions of filed rate schedules. Commission; (2) the MMIP applies to all they have touched on such matters at Accordingly, it is appropriate for us to market participants, and is expressly all, have, in fact, implied the contrary, institute this proceeding. intended to identify abuses and to according to the opposing commenters. 24. MMIP 2.3 and its several subparts provide for protection from such abuses; They also suggest that if the address how the ISO, including the (3) the MMIP provides that the practices Commission initiates an investigation, it Market Surveillance Unit, is to respond that are expressly subject to scrutiny are would discourage new investment. to market participants engaging in any gaming and anomalous market behavior, of the suspect practices delineated in c. Other Comments and each is defined in some detail; (4) the MMIP. While the MMIP outlines while the MMIP does not expressly 22. The California Parties also argue intermediate steps (such as arranging for prohibit such Gaming Practices as that other tariff provisions may have alternative dispute resolution or ‘‘ricochet’’ or ‘‘get shorty,’’ such a been violated, citing the following tariff proposing language changes to the standard would require a level of detail provisions from the ISO Tariff: (1) tariff), ultimately the MMIP directs the that would be impossible to achieve, Section 5.5.1 (Planned Maintenance); (2) Market Surveillance Unit to refer and it would require anticipating all of Section 5.5.3 (Forced Outages); (3) matters to this Commission for the myriad ways that could be dreamed Section 5.3 (Identification of Generating enforcement.41 The MMIP contemplates up to ‘‘game’’ the markets, and to spell Units); (4) Section 5.4 (Western Systems that, while the ISO may try to correct them all out in the MMIP; (5) it is hard Coordinating Council (WSCC) misconduct on its own, the Commission to conceive that market participants as Requirements); (5) Section 2.2.7.2 is to be ‘‘the court of last resort’’ for sophisticated as those here did not (Submitting Balanced Schedules); (6) misconduct committed by market realize that the kind of trading practices Section 2.5.22.11 (Failure to Conform to participants, including the gaming and/ at issue here were inappropriate; and (6) Dispatch Instructions); and (7) Section or anomalous market behavior as part of a filed tariff, the MMIP 20.3 (Confidential Information). misconduct defined in the MMIP. While ultimately is for the Commission to 3. Commission Determination part 2 of the MMIP enumerates suspect interpret and enforce, and the MMIP practices, MMIP 7.3 authorizes the ISO itself recognizes that the Commission is 23. The MMIP puts market to impose ‘‘sanctions and penalties’’ or, the ultimate enforcement authority. participants on notice regarding their as particularly relevant here, to refer rights and obligations in the matters to the Commission for b. Opposing Comments marketplace. It serves as the rules of the appropriate sanctions or penalties. 21. Several parties filed comments road for market participants. It also 25. We agree with the Staff Final opposing Commission Staff’s contemplates that these rules will be Report that if entities are found to have interpretation of the MMIP.38 They enforced by the Market Surveillance engaged in the identified misconduct, argue that: (1) The MMIP was intended Unit, in the form of monitoring and they will have violated the ISO’s and to provide direction to the ISO and not reporting, or by the appropriate body or PX’s filed tariffs even if such formal be a standard by which the Commission bodies (including this Commission), in 39 procedures as referral outlined in the prosecuted market participants’ the form of corrective actions. While MMIP did not occur. The Commission the Commission’s role in this regard conduct; (2) the MMIP does not can enforce a filed tariff even when may be triggered by the referral expressly bar any trading practices; and there are processes in that tariff which, procedures outlined in the MMIP, the (3) the MMIP does not identify with had they been used, would have Commission also possesses the precision the particular strategies that assisted the Commission. Ultimately, authority to enforce a filed tariff even in are subject to scrutiny, and thus, it is too the Commission can enforce a filed tariff the absence of a referral.40 We agree vague to serve as a standard by which with or without the assistance of a with the Staff Final Report that one key to judge market participants’ conduct. complaint or a referral.42 They argue that the Commission cannot function of the MMIP is to put market 26. In this regard, we note that the participants on notice as to the rules of hold market participants responsible in ISO and PX each initially submitted its the road for market participants, so that these circumstances, when they have MMIP (along with other protocols), for the markets operated by the ISO are free not had fair notice that the trading informational purposes only, on October from abusive conduct and may function practices at issue here are prohibited. 31, 1997. The Commission, however, as efficiently and competitively as Further, they contend that there is found that the protocols, including the possible. The Staff Final Report finds, extrinsic evidence indicating that MMIP, ‘‘govern a wide range of matters and again we agree, that market market participants, particularly which traditionally and typically appear participants cannot reasonably argue including the ISO itself, did not view in agreements that should be filed with that they were not on notice that the MMIP as a bar to the kind of trading and approved by the Commission.’’ 43 conduct such as the Gaming Practices practices at issue here or as a basis for The Commission accepted the protocols, discussed below would be a violation of ordering disgorgement of unjust profits. including the MMIP, for filing, and the ISO and PX tariffs. In short, the key directed the ISO and PX each to post the 37 function of the MMIP is to put market E.g., the California Parties, which include the protocols on its Internet site and to file California Attorney General and the California participants on notice of what practices its complete protocols pursuant to Public Utilities Commission, among others. would be subject to monitoring and, 38 Section 205 of the FPA within 60 days E.g., California Generators (Mirant, Dynegy, potentially, corrective or enforcement Williams), Competitive Supplier Group (Aquila, of the ISO’s and PX’s Operations Date Aquila Merchant Services, Arizona Public Service (that date ultimately was April 1, Company, Avista Energy, Constellation Power 39 Sections 2.3, 3.3.4 and 7.3 of the MMIP outline Source, Coral Power, El Paso Merchant Energy, the procedures to be followed by the ISO and the IDACORP Energy, Idaho Power Company, Pinnacle PX when a market participant is found to have 41 MMIP 3.3.4. West Capital Corporation, Portland General Electric, engaged in any of the suspect practices delineated 42 16 U.S.C. 824d, 824e (2000). Puget Sound Energy, and Sempra Energy Trading in the MMIP. 43 Pacific Gas and Electric Co., et al., 81 FERC Corp.), Enron, and Reliant. 40 16 U.S.C. §§ 824d, 824e, 825h (2000). ¶ 61,320 at 62,471 (1997).
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1998).44 Accordingly, the MMIP has resources necessary to reliably operate 33. Thus, under the California been part of the ISO’s and PX’s filed the transmission system, including a restructuring rules, the three California tariffs since 1998, which includes the day-ahead market and an hour-ahead public utilities were both buyers and period January 1, 2000 to June 20, 2001 market for relieving transmission sellers in the PX. The prices paid for at issue here. congestion and an energy market to buying back their own resources 27. With respect to tariff provisions continuously balance the system’s through the PX served to value those besides the MMIP cited by the energy needs in real time. The latter resources for stranded cost purposes. As California Parties: (1) The WSCC real-time market is the final energy long as the three public utilities paid requirements cited by the California market to clear chronologically, after all less than the frozen retail rates, they Parties make no reference to gaming other markets in the region clear. used the difference to write off stranded strategies or anomalous market behavior Bilateral spot markets at trading hubs costs. This formula broke down, (as does the MMIP), and therefore, those outside California generally operated in however, when the public utilities had provisions do not provide a basis for the time period between the close of the to buy back their resources at more than finding gaming and/or anomalous PX market and the ISO real-time the frozen retail rates.50 market behavior; and (2) conduct market.47 involving arbitrage, underscheduling 31. As the Staff Final Report notes, D. Gaming Practices and California and confidentiality of certain data is understanding the interaction of the PX Practices addressed below in the discussion of and ISO spot markets with all their 34. Since the inception of the Gaming Practices and California complexities, together with the different Commission’s investigation into Practices. We are also currently market operations outside of California, whether any entity manipulated prices investigating alleged violations related is crucial to understanding and in the electricity and gas markets in the to physical withholding. analyzing the impact of the various West and the release of the first Enron conduct discussed below. An example C. Overview of PX and ISO Operations memorandum in May 2002 discussing of these complexities is the transmission its trading strategies, there have been a 28. The Staff Final Report provides an congestion management system. A multitude of studies and reports written overview of the ISO and PX operations transmission path is ‘‘congested’’ when about the alleged inappropriate conduct and trading rules in order to put the total schedules exceed the available in California by market participants alleged practices in the context of transmission capacity of the facilities. during 2000 and 2001. In addition to the 45 Western energy markets. This The ISO used, as suggested above, a Staff Final Report that addresses these overview is recited below. zone-based approach to alleviate issues, we have reviewed the ISO Report 29. The ISO operates much of the congestion. Sellers and buyers and the several studies and testimony transmission grid in California and is submitted adjustment bids identifying by witnesses submitted in the 100 Days responsible for real-time operations, the prices they were willing to use to Evidence. Most notable among the such as continually balancing increase or decrease their generation on testimony submitted with respect to generation and load and managing demand to relieve congestion in a alleging gaming conduct by market congestion on the transmission system it particular zone. However, the software participants are the testimony and controls. In California, a certified used by the ISO to evaluate adjustment studies conducted by Dr. Peter Fox- scheduling coordinator is the bids did not accept prices that were Penner.51 intermediary between the ISO and the higher than the ISO price cap. These 35. As a result of our review and ultimate customer. Under California’s and other complexities created an analysis of this material, the restructuring legislation, the PX was opportunity for the market participants Commission has determined that some created primarily to operate two markets to engage in the conduct described of these alleged gaming practices in which energy was traded on an below.48 violated the MMIP. As to those practices hourly basis. These were the day-ahead 32. In addition, it is important to that violated the MMIP (hereafter and day-of markets. These markets remember that California’s restructuring collectively referred to as the Gaming established a single clearing price for plan required the three California public Practices), we found two categories of each hour across the entire ISO control utilities (Southern California Edison violations: (1) Gaming Practices that area, provided there were no Company (SoCal Edison), San Diego Gas violated the MMIP and for which we are transmission constraints. Where & Electric Company (SDG&E), and seeking disgorgement of all unjust transmission congestion existed, a Pacific Gas and Electric Company profits received as a result of those separate clearing price was established (PG&E)) to sell all of their generation violations; and (2) Gaming Practices that for each transmission constrained area resources into the PX and to buy all of violated the MMIP, but for which there or zone in California. Each zonal their energy needs from the PX. This were no unjust profits earned or other clearing price was based on adjustment made the PX by far the largest countervailing and mitigating bids submitted by sellers and buyers. scheduling coordinator in California, circumstances existed that caused the The adjustment bids represented the representing at times close to 90 percent market participants to engage in the value to an entity of increasing or of the load served by the ISO grid. This decreasing (i.e., adjusting) its use of the requirement that the three public 50 Id. at 4–5. As noted in the Commission’s system. In essence, this is a redispatch utilities exclusively use the PX was December 15, 2000 Order, 93 FERC at 62,002 & of the system to deal with congestion.46 critical in the restructuring program, n.54, stranded cost estimates showed that by then 30. The ISO operates a variety of since this was how the three public PG&E had collected $8.3 billion, and SoCal Edison markets in order to procure the had collected $9.3 billion; SDG&E had fully utilities were to calculate savings from recovered its stranded costs earlier in 2000. Staff using the new market structure and Final Report, ch. VI at 5. 44 Id. The ISO (in Docket No. EC96–19–029, et al.) apply those savings to recover their 51 See Prepared Testimony of Dr. Peter Fox- and PX (in Docket No. EC96–19–28, et al.) each stranded costs.49 Penner on Behalf of California Parties, Exhibit No. made that compliance filing on June 1, 1998. CA–1, and Appendices to Prepared Testimony of 45 See Staff Final Report, ch. VI at 4–6. Dr. Peter Fox-Penner on Behalf of California Parties, 46 For a more detailed description of the day- 47 Id. at 5–6. Exhibit No. CA–2 attached to California Parties’ ahead auction process, see the Staff Final Report, 48 Id. at 6. Supplemental Evidence Filing in Docket No. EL00– ch. VI at 5. 49 Id. at 4. 95–075, et al. (filed March 3, 2003).
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Gaming Practices such that it would not advantage 53 of the rules permitting 42. The first such Congestion-Related be just for the Commission to seek the energy to be purchased at prices above practice is referred to as Cutting Non- disgorgement of unjust profits. the cap in out-of-market purchases firm, also sometimes known as Non-firm 36. We have determined that certain during real time and the ISO’s practice Export. This practice involved the of the market participants’ practices did of permitting such uncapped purchases scheduling of non-firm power by a not violate the MMIP, and we are not for imported power. More precisely, the market participant that did not intend to pursuing market participants for having market participants engaging in False deliver or cannot deliver the power. engaged in such activities (hereafter Import deceived the ISO by falsely Upon receipt of the congestion payment collectively referred to as the California representing that their available power for cutting the schedule, the market Practices). Rather, we find that the had been imported in order to receive a participant then canceled the non-firm California Practices did not violate the price above the cap. In fact, however, power after the hour-ahead market ISO tariff or any rule, and were the generation was California closed but kept the congestion payment. recognized and widely accepted as generation, and no power had left the No power was transmitted and no appropriate arbitrage activity. state in the fictional export-import congestion was relieved, but the market 1. Gaming Practices parking transaction. participant was paid for congestion 40. Based on the ISO Report and relief. In some instances, the market a. False Import studies by Dr. Fox-Penner,54 the participant may have submitted a 37. This practice, which is also following parties may have engaged in schedule for non-firm power that it, in known as ‘‘Ricochet’’ or ‘‘Megawatt the False Import Practice in violation of fact, had not acquired. Laundering,’’ took advantage of the the MMIP and unjustly received prices 43. The second Congestion-Related price differentials that existed between in excess of the cap for energy that was practice is Circular Scheduling, also the day-ahead or day-of markets and falsely represented as being imported sometimes referred to as ‘‘Death Star.’’ out-of-market sales in the real-time energy: (1) Aquila, Inc.; (2) Arizona The Circular Scheduling practice market. A market participant made Public Service Company; (3) Bonneville involved the market participant arrangements to export power Power Administration; etc., as set forth scheduling a counterflow in order to purchased in the California day-ahead in Attachment A to this Order.55 receive a congestion relief payment. In or day-of markets to an entity outside conjunction with the counterflow, the b. Congestion-Related Practices. the state and to repurchase the power market participant scheduled a series of from the out-of-state entity, for which 41. According to the ISO rules, market transactions that included both energy the out-of-state entity received a fee. participants received congestion relief imports and exports into and out of the The ‘‘imported’’ power was then sold in payments for relieving flows in the ISO control area and a transaction the California real-time market at a price direction of congestion or increasing outside the ISO control area in the above the cap. counterflows in the opposite direction. opposite direction of the counterflow 38. The essence of the False Import There were four practices that market back to the original place of origin. With practice was to ‘‘park’’ day-ahead or participants engaged in that involved the same amount of power scheduled day-of California energy with a false scheduling of load or counterflow back to the point of origin, however, company outside of California, buy it energy that appeared to relieve power did not actually flow and back for a small fee and then sell it to congestion in real time so that they congestion was not relieved. Circular the ISO as ‘‘imported’’ out-of-market could receive congestion payments.56 Scheduling was profitable as long as the power. When power was parked under congestion relief payments were greater this practice, no power actually left the 53 See MMIP 2.1.3. than the cost of scheduled transmission. state of California. The reason for 54 As discussed below in section E, because the 44. The third Congestion-Related creating this fictional import was to take ISO Report and Dr. Fox-Penner’s studies were broadly inclusive, we recognize that some of the practice was Scheduling Counterflows advantage of the fact that the ISO was transactions identified in those reports may have on Out-of-Service Lines, also sometimes making out-of-market purchases that been legitimate transactions and not Gaming referred to as ‘‘Wheel Out.’’ This were not subject to the price cap during Practices. practice involved a market participant 55 real time whenever there was The monetary remedy of disgorgement of submitting a schedule across an intertie insufficient supply bid into its market.52 unjust profits for this particular Gaming Practice would be imposed only until such time as the line at the ISO border that was known The ISO buyers responsible for mitigated market clearing price was put in place for to be out of service and had been obtaining the energy needed in the real- transactions, i.e., on June 21, 2001. Furthermore, derated to zero capacity, thus creating time market were willing to pay a price during the period covered by the refund period artificial congestion. The market above the cap for energy imported from (October 2, 2000–June 21, 2001), see supra note 3, all spot market sales through the PX in the day participant would then schedule a outside of California and accepted offers ahead market are mitigated as are all transactions counterflow export, a ‘‘wheel out,’’ and from sellers engaging in the False with the ISO in the real time market. Therefore, be paid for congestion relief in the day- Import practice. both the energy price for the export and the import are mitigated during this period. Accordingly, ahead or hour-ahead market. However, 39. Those market participants who because the line was completely engaged in the False Import practice disgorgement for this strategy will apply to only transactions between May 2000 and the start of the constrained, the initial schedule was violated the MMIP by unfairly taking refund period on October 2, 2000. certain to be cut by the ISO in real time 56 As noted above, supra notes 1 and 3, June 20, and the market participant would 52 ‘‘Out-of-market purchases’’ refers to all 2001 has been selected as the end date of the generation purchased by the ISO that was not bid relevant period in this proceeding. While the receive a congestion payment for energy into the market or was bid at a price above the mitigation plan, which became effective on that it did not actually supply. effective price cap. Out-of-market purchases were date, was primarily intended to control the real- 45. The fourth Congestion-Related especially frequent prior to the implementation of time energy market, it also had a disciplining effect practice, known as ‘‘Load Shift,’’ the ‘‘must offer’’ requirement effective on May 29, on congestion costs and eliminated the opportunity 2001, which mandates that all generators with to profit from Gaming Practices. The ISO Market involved a market participant participating generator agreements with the ISO Analysis Report for June 2001 shows that the provide available generation to the ISO unless the average price of real-time electricity in June $7 million in May 2001. A. Sheffrin, Market ISO grants a waiver. See San Diego Gas & Electric decreased 62 percent to $104/MWh from the May Analysis Report for June 2001, (July 20, 2001), Co., 95 FERC ¶ 61,115 (implementing the must offer 2001 average of $275/MWh and total congestion available at
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underscheduling load in one zone in resources available to provide the but for which they could not deliver the California and overscheduling load in ancillary services. The market services.60 Based on the identification of another, thereby increasing congestion participant then bought back these market participants in the July 3, 2002 in the direction of the overscheduled ancillary services in the hour-ahead market notice as well as the ISO Report, zone. Congestion ‘‘relief’’ occurred market at a lower price. the Commission believes that the when the market participant later 50. The second Ancillary Services- following parties may have engaged in adjusted the two schedules to reflect Related practice we refer to as Double Paper Trading in violation of the MMIP actual expected loads. This adjustment Selling. This practice involved selling and Section 2.5.22.11 of the ISO tariff created a counterflow toward the ancillary services in the day-ahead and unjustly received payments for underscheduled zone, earning the market from resources that were ancillary services: (1) Arizona Public market participant a congestion relief initially available, but later selling those Service Co.; (2) Automated Power payment from the ISO. The market same resources as energy in the hour- Exchange, Inc.; (3) Bonneville Power participant had to own Firm ahead or real-time markets. Administration; etc., set forth on Transmission Rights (FTRs) in the 51. Market participants that engaged Attachment C to this Order. direction of the overscheduled zone to in Paper Trading and/or Double Selling 53. Based on the studies by Dr. Fox- cover its exposure to ISO congestion violated the MMIP since they unfairly Penner, the Commission believes that 57 charges, but any of the FTRs that it did took advantage of the market rules by the following parties may have engaged not use may have earned artificially using false representations and/or in Double Selling in violation of MMIP high FTR payments from the ISO. receiving payments for services that and unjustly received payments for 46. Each of the four Congestion- they did not provide. With respect to ancillary services: (1) Duke Energy Related practices violated the MMIP Paper Trading, the ISO’s tariff requires Trading and Marketing Corp.; (2) because the market participants that any bid for the provision of Dynegy Power Marketing Inc., Dynegy submitted false schedules to the ISO. In ancillary services specify the generating Power Corp., El Segundo Power LLC, the cases of Cutting Non-firm, Circular unit, system unit, load or system Long Beach Generation LLC, Cabrillo Scheduling, and Scheduling resource which will be used to provide Power I LLC, and Cabrillo Power II LLC; Counterflows on Out-of-Service Lines, the ancillary service. Additionally, a (3) Mirant Americas Energy Marketing, the market participants fraudulently scheduling coordinator must identify LP, Mirant California, LLC, Mirant received congestion relief payments for the specific operating characteristics of Delta, LLC, and Mirant Potrero, LLC; energy that was never provided and did that resource which would qualify it to 58 and (4) Reliant Resources, Inc., Reliant not relieve congestion. Similarly, market provide ancillary services. However, Energy Power Generation, and Reliant participants who engaged in the Load market participants engaged in Paper Energy Services, Inc.; as set forth on Shift practice received congestion Trading falsely represented that the Attachment D to this Order. payments for their FTRs as a result of resources were available to provide the very congestion that they created. As ancillary services when they were not d. Selling Non-Firm Energy as Firm a result of these false representations, actually available. Similarly, with 54. The practice of Selling Non-Firm the market participants that engaged in respect to Double Selling, the market Energy as Firm involved Enron 61 these Congestion-Related practices participant misled the ISO by selling buying non-firm energy from outside unfairly took advantage of the ISO rules capacity that it had already committed California and then selling it to the ISO regarding payment for congestion relief. to reserve as ancillary services, thus as firm energy. Enron was able to derive 47. Based on the ISO Report and making that capacity no longer available an unjust profit from this practice studies by Dr. Fox-Penner, the following in real time if the ISO were to call upon because it avoided the cost of parties may have engaged in one or that resource to provide ancillary purchasing the operating reserves that services. In addition to violating the more of these four Congestion-Related are required for firm energy. MMIP, those market participants that Practices in violation of MMIP and 55. The practice of Selling Non-Firm engaged in Double Selling also violated unjustly received congestion payments: Energy as Firm was a flagrant false (1) American Electric Power Service Section 2.5.22.11 of ISO tariff.59 52. Although the ISO Report includes representation by Enron to the ISO. Corp.; (2) Aquila, Inc.; (3) Duke Energy Thus, it was a violation of the MMIP. Trading and Marketing Company; etc., a list of market participants that may as set forth in Attachment B to this have engaged in Paper Trading, the ISO 2. Gaming Practices for Which Order. does not have the information necessary Disgorgement of Unjust Profits Is Not to determine the extent to which the Sought c. Ancillary Services-Related Practices. capacity for ancillary services sold in a. Underscheduling Load. 48. There are three different practices the day-ahead market and then sold that market participants engaged in that back in the hour-ahead was not actually 56. This practice was an effort by the involved selling ancillary services, also available or could not have been load-serving entities, primarily the three sometimes collectively referred to as provided. However, in a market notice, California utilities (PG&E, SoCal Edison, ‘‘Get Shorty.’’ Two of these we consider dated July 3, 2002, the ISO listed market and SDG&E), to reduce the overall price to be Gaming Practices and violations of participants that received payments for paid for generation. For months they the MMIP and are discussed here. The ancillary services that were called upon understated their load consistently in third, we determine to be a form of legitimate arbitrage and is discussed 57 See MMIP 2.1.3. 60 California ISO, Ancillary Services Payments below, in the section addressing the 58 ISO Tariff § 2.5.6.1 (applicable to generation Rescinded Due to Generator Unavailability, Market within California); and ISO Tariff §§ 2.5.7.4.2 and Notice (July 3, 2002). For the convenience of California Practices. 2.5.7.4.3 (applicable to resources outside of parties, the ISO’s July 3, 2002 market notice is 49. The first Ancillary Services- California). attached as Attachment G to this order. Related practice we refer to as Paper 59 Section 2.5.22.11 of the ISO Tariff (Failure To 61 In the 100 Days Evidence, Seattle alleges that Trading. This practice involved selling Conform To Dispatch Instructions) requires that Avista, El Paso, Portland General, PowerEx, and ancillary services in the day-ahead resources that have been committed to provide Transalta engaged in all of the Gaming Practices. ancillary services for a given period must be However, we have seen no evidence that any market even though the market available and capable of providing the services for market participant engaged in Selling Non-Firm participant did not have the required the full duration of the period. Energy as Firm other than Enron.
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schedules submitted to the PX in an overstating to the ISO its scheduled load who engaged in Overscheduling Load effort to reduce the amount of to correspond with the amount of did not set the market clearing price generation purchased in the day-ahead generation in its schedule. This practice, because, as uninstructed energy, they market, thereby lowering the price. The also sometimes referred to as ‘‘Inc-ing’’ were price takers who were paid the ex- remainder of the utilities’ generation or ‘‘Fat Boy,’’ permitted the market post price for imbalance energy which needs would be purchased in the ISO’s participant to be dispatched by the ISO was set by the bid of the marginal unit capped real-time market. during real time to its full capacity and dispatched.67 Therefore, we are not 57. Under the then-existing market receive the real-time market clearing seeking disgorgement of unjust profits rules, the utilities were required to price even though it did not have from those market participants who satisfy their need for energy with scheduled load equal to its generation engaged in Overscheduling Load. purchases from the PX and were to bid capacity when it bid into the day-ahead 3. California Practices in their generation in the PX day-ahead market. Thus, Overscheduling Load market in an amount equal to their ensured that generation would not go 61. As noted, the Commission has load.62 However, during 2000, in an unsold in the real-time market. determined that some of the conduct effort to minimize their energy costs, the 60. Overscheduling Load required the discussed in the Staff Final Report and three California public utilities began to market participant to submit a false load the 100 Days Evidence did not violate routinely underschedule their load in schedule to the ISO since the ISO the MMIP or any other tariff violation. the PX day-ahead market. Due to the required that only balanced schedules of These California Practices were widely large size of the three California public load and generation could be bid into recognized and accepted as appropriate utilities, changes in their purchasing the day-ahead market. Although the and legitimate practices, as discussed strategies had a significant impact on submission of such false schedules is a below. They did not involve any false market outcomes, including the market- violation of the MMIP, there were representations or take unfair advantage clearing prices in the PX day-ahead countervailing circumstances that of ISO rules. Accordingly, we are not market. By moving a significant amount existed in the California market at the seeking to recover the profits earned by of their load out of the PX day-ahead time that caused the market participants market participants as the result of market, less supply bids were needed to to engage in Overscheduling Load. The engaging in such conduct. ISO rules required that all market clear the market which, in turn, resulted a. Export of California Power in lower market clearing prices in the participants submit schedules PX day-ahead market. As a direct result containing balanced levels of generation 62. This practice involved a purchase of the underscheduling by the three and load. However, as noted above, in of power in the California day-ahead public utilities in the day-ahead market, an effort to minimize their procurement market at or below the price cap and however, the ISO had to meet a larger costs in the California market due to the then a resale of the power outside the percentage of the load in real time, interplay between the PX and ISO rules, state at a higher (uncapped) price. causing serious operational and the utilities routinely underscheduled Unlike the False Import practice reliability problems. their load. The market participants who discussed above, energy is actually 58. Because Underscheduling Load engaged in Overscheduling Load did so exported out of California. as a direct response to the utilities’ 63. This practice did not violate the required the utilities to submit false 65 schedules with regard to their loads to practice of Underscheduling Load. tariffs or rules of the PX or ISO.68 the PX, this conduct was certainly Overscheduling Load actually helped Market participants were engaging in troublesome and is not condoned by the reduce reliability problems in the real- arbitrage between the California market, Commission.63 Moreover, it violated the time market. In fact, Overscheduling which had price caps in effect, and MMIP by unfairly taking advantage of Load was often actively encouraged by markets outside of California that did the rules and caused a demonstrable the ISO because it reduced the need for not have price caps and where they real-time energy due to the utilities’ could receive a higher price.69 This type detriment to the efficiency of the 66 market.64 Although we disapprove of underscheduling. Finally, participants of export practice has never been the practice of Underscheduling Load prohibited and, to the extent it does not 65 The phenomenon of market participants and we have the authority to order engaging in Overscheduling Load in response to the involve collusion with other market 70 disgorgement of unjust profits, there are utilities’ practice of Underscheduling Load was participants, represents legitimate no profits to disgorge since this was a widely known and accepted. See Report on economically rational attempts by the price-reducing purchasing strategy. California Energy Markets Issues and Performance: May-June, 2000, Special Report, by Department of Practices Contribute to Outages in California? at 12– b. Overscheduling Load. Market Analysis, California ISO, dated August 10, 2000, pages 2–3, 25–37, available at
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market participants to maximize their information to manipulate the market. did not flow due to circumstances profits. There has been no evidence to suggest beyond the control of the market that the sharing of outage information participant and without prior b. Ancillary Services-Related was used to manipulate the market. knowledge by the market participant Practices—Arbitrage. Subscribing to IIR’s service did not that the energy would not flow. 64. As noted above, market involve any false representations, rule Regarding Paper Trading and Double participants engaged in several different violations, or violations of MMIP. Selling, evidence that may establish that practices involving ancillary services. Furthermore, no evidence was offered to the transactions, identified by the ISO Two of those we discussed above (Paper suggest that any outage data was used in and Dr. Fox-Penner, were not in fact Trading and Double Selling) and we a collusive manner to raise prices. Gaming Practices, but were instead consider those practices to be Gaming legitimate transactions might include Practices in violation of the MMIP. E. Further Clarification as to What Constitutes Gaming Practices showing that: (a) The resources to However, to the extent a market provide the ancillary services sold in participant was merely taking advantage 67. The screens used by the ISO and the day-ahead market were actually of systematic differences in the day- Dr. Fox-Penner are broadly inclusive available to the bidder; (b) ancillary ahead and hour-ahead market prices for and some of the characteristics that services payments were not received for ancillary services by selling ancillary were used to identify potential Gaming capacity that was not available to services in the day-ahead market and Practices may also be present provide ancillary services, or (c) the ISO buying them back at a lower price in the intransactions that were not actually requested that the market participant hour-ahead market, we find this practice Gaming Practices. In fact, the 100 Days provide energy in the real-time market to be consistent with legitimate Evidence indicates that there may be even though it knew that such energy 71 arbitrage. Thus, as long as the market legitimate explanations for many of the was being held for ancillary services participant had the generation available transactions that may initially appear to previously sold to the ISO. to provide the ancillary services or be Gaming Practices. As a result, the appropriately contracted for it, selling Identified Entities will have an F. Identified Entities With Revenues of the energy at one price and buying it opportunity to submit evidence to the $10,000 or Less back at a lower price did not violate the ALJ that may demonstrate that any or all 69. We are exercising our ISO rules or tariff and was nothing more of the transactions identified in the ISO prosecutorial discretion and not than a method for the market participant Report or Dr. Fox-Penner’s studies were prosecuting certain of the Identified to reap a valid profit from the price not Gaming Practices. For example, with Entities which the ISO Report states differential in the day-ahead and real- respect to transactions identified as have earned revenues of $10,000 or less time markets. False Imports, evidence that may for a particular Gaming Practice and demonstrate that the transactions were c. Access to IIR Outage Data. where we have no other basis to legitimate transactions and not part of a 65. For an annual fee, market prosecute them for that particular False Import practice might include Gaming Practice.73 In the ISO’s latest participants could subscribe to a establishing that: (a) The ‘‘imported’’ generation outage notification service report analyzing various practices, the power was actually imported from ISO states that its analysis includes provided by Industrial Information outside the state of California and not a Resources (IIR). IIR provided market participants with a relatively fictitious import, i.e., not an export and small number of transactions and information to subscribers via daily import that constitutes a False Import, revenues from particular practices. The e-mails and upon request regarding as described above; (b) the transaction ISO explains that the smaller the plant outages in the West. The was designed to work around a volume of transactions and the revenues information sometimes included the transmission constraint (such as on Path identified for individual market cause of outages, prospective as well as 15) which limited the movement of participants, the less the likelihood that current plant outages, and expected start power between two points within the the transactions represent prohibited and end dates. IIR obtained information ISO control area by using an Gaming Practices. The ISO, in fact, directly from the generating plants. uncongested transmission path (such as recommends applying a minimum 66. In the 100 Days Evidence, the the Pacific DC intertie) to move the California Parties alleged that market threshold in any further investigations power to a point outside the ISO control 74 participants who utilized IIR violated area and back to its intended of these practices. We agree that the the ISO tariff regarding confidentiality destination; (c) the export and import burden and costs to both the parties and of outage data and that subscriptions to were actually two independent and the IIR service raised issues under the 73 We, thus, are exercising our prosecutorial unrelated obligations such as a pre- discretion and not prosecuting Constellation Power antitrust laws. We disagree. The ISO existing long-term bilateral contractual Source, Inc. for False Import practice. tariff prohibits the ISO from revealing export obligation followed by a real- Further, we are exercising our prosecutorial market participants’ confidential outage time import from the same party in an discretion and not prosecuting, Calpine Corp., data; the tariff does not prohibit the unrelated transaction; or (d) the market Idaho Power Company, Modesto Irrigation District, TransAlta Energy Marketing (U.S.) Inc. and market participants providing the participant was importing power on TransAlta Energy Marketing (California), Inc., and information to third parties and then behalf of the ISO or California Williams Energy Services Corp. for Cutting Non- subscribing to third-parties’ services.72 Department of Water Resources firm. Further, subscribing to a service that (California DWR), because suppliers We, likewise, are not prosecuting Arizona Public provides outage information does not Service Company, Calpine Corp., Hafslund Energy were unwilling to assume the credit risk Trading, LLC, Portland General Electric Company, mean that the subscribers used that of dealing directly with the ISO or and Puget Sound Energy, Inc. for Circular California DWR. Scheduling. 71 See California Independent System Operator 68. Similarly, evidence that may We, similarly, are not prosecuting Calpine Corp., Corporation, 82 FERC ¶ 61,327 (1998) (Commission establish that transactions were not part City of Vernon, Constellation Power Source, Inc., accepted ISO Tariff Amendment No. 4, which Public Service Company of New Mexico and allowed scheduling coordinators to buy back and of a Cutting Non-firm practice might be Portland General Electric Company for Paper sell ancillary services in the hour-ahead market). that, with respect to any energy that was Trading. 72 ISO Tariff 20.3.1–20.3.3. scheduled, but did not flow, the energy 74 ISO Report at 3–4 (June 2003) .
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the Commission associated with contemporaneously file that transaction 000, EL03–144–000, EL03–145–000, litigating whether market participants data, including the explanation of its EL03–146–000, EL03–147–000, EL03– whose revenues were less than $10,000 screen(s), with the Commission. Unless 148–000, EL03–149–000, EL03–150– for particular Gaming Practices engaged the Identified Entity files an offer of 000, EL03–151–000, EL03–152–000, in those practices may exceed any settlement as discussed below, within EL03–153–000, EL03–154–000, EL03– unjust profits on the revenues that 45 days thereafter, the Identified 155–000, EL03–156–000, EL03–157– resulted from such transactions. Entities shall file their show cause 000, EL03–158–000, EL03–159–000, Accordingly, we are exercising our responses. EL03–160–000, EL03–161–000, EL03– prosecutorial discretion and not 73. We recognize that, in some 162–000, EL03–163–000, EL03–164– proceeding against certain Identified instances, the burdens and costs to both 000, EL03–165–000, EL03–166–000, Entities for particular Gaming Practices. the parties and the Commission EL03–167–000, EL03–168–000, EL03– associated with litigating whether 169–000, EL03–170–000, EL03–171– G. Show Cause Order and Institution of certain market participants engaged in Trial-Type Evidentiary Proceeding 000, EL03–172–000, EL03–173–000, particular Gaming Practices and EL03–174–000, EL03–175–000, EL03– 70. As described above, and as the violated the MMIP may exceed the 176–000, EL03–177–000, EL03–178–000 Staff Final Report concludes, the revenues and unjust profits that resulted and EL03–179–000: (1) where the Gaming Practices identified above from such transactions. There are also Identified Entities shall show cause why violate the ISO’s and PX’s filed tariffs, many disputed issues of fact which, in they should not be found to have and the Identified Entities appear to litigation, would tend to prolong employed the above-described Gaming have engaged in such practices, as uncertainty for the Identified Entities Practices in violation of the ISO’s and identified above. and the marketplace as a whole. PX’s tariffs; and (2) where the 71. Accordingly, we require these Therefore, we encourage the Identified appropriate remedies may be identified entities to show cause, in a trial-type Entities to resolve these proceedings by and quantified, as discussed in the body evidentiary proceeding to be held before settlement with the Commission’s Trial of this order. an ALJ, why they should not be found Staff. In this regard, should participants (B) Any interested person desiring to to have engaged in Gaming Practices in not settle on a mechanism to distribute be heard in these proceedings should violation of the ISO’s and PX’s tariffs.75 monies, the ALJ should request file a notice of intervention or motion to In addition, we direct the ALJ to hear comment and render a finding on a evidence and render findings and intervene with the Federal Energy mechanism that will fairly distribute Regulatory Commission, 888 First conclusions, quantifying the full extent any monies to those customers harmed to which the entities named herein may Street, NE., Washington, DC 20426, in by the Gaming Practices. accordance with Rule 214 of the have been unjustly enriched by their 74. Finally, given the commonality of Commission’s Rules of Practice and engaging in Gaming Practices.76 We issues of law and fact presented herein, Procedure (18 CFR § 385.214), within 21 require that any and all such unjust Docket Nos. EL03–137–000, EL03–138– days of the date of this order. profits for the period January 1, 2000 to 000, EL03–139–000, EL03–140–000, June 20, 2001 be disgorged in their EL03–141–000, EL03–142–000, EL03– (C) The ISO is hereby directed to entirety. We also direct the ALJ to 143–000, EL03–144–000, EL03–145– provide the Identified Entities with all consider any additional, appropriate 000, EL03–146–000, EL03–147–000, of the specific transaction data for each non-monetary remedies, as may be EL03–148–000, EL03–149–000, EL03– of the Gaming Practices discussed in the appropriate, e.g., revocation of an 150–000, EL03–151–000, EL03–152– ISO Report, including an explanation of Identified Entity’s market-based rate 000, EL03–153–000, EL03–154–000, the screen that it used to identify the authority and revisions to an Identified EL03–155–000, EL03–156–000, EL03– transactions in question, within 21 days Entity’s code of conduct.77 157–000, EL03–158–000, EL03–159– of the date of this order, as discussed in 72. The ISO shall, within 21 days of 000, EL03–160–000, EL03–161–000, the body of this order. The ISO shall the date of this order, provide the EL03–162–000, EL03–163–000, EL03– contemporaneously file such transaction Identified Entities all of the specific 164–000, EL03–165–000, EL03–166– data with the Commission. transaction data for each of the Gaming 000, EL03–167–000, EL03–168–000, (D) Within 45 days of the ISO’s Practices discussed in the ISO Report, EL03–169–000, EL03–170–000, EL03– submittal made pursuant to Ordering including an explanation of the 171–000, EL03–172–000, EL03–173– Paragraph (C) above, the Identified screen(s) that it used to identify the 000, EL03–174–000, EL03–175–000, Entities shall submit show cause transactions in question. The ISO shall EL03–176–000, EL03–177–000, EL03– responses, as discussed in the body of 178–000 and EL03–179–000 will be this order. 75 We will incorporate the Staff Final Report and consolidated for purposes of hearing (E) An administrative law judge, to be the underlying record in Docket No. PA02–2–000 designated by the Chief Administrative by reference into the record in this proceeding. and decision. 76 We will permit the parties to introduce relevant The Commission orders: Law Judge, shall convene a prehearing evidence from the 100 Days Evidence proceeding. (A) Pursuant to the authority conference in this proceeding to be held See supra P 9. contained in and subject to the within approximately fifteen (15) days As discussed in the Staff Final Report and in the jurisdiction conferred upon the Federal of the filing of the show cause body of this order, there is evidence of gaming and/ Energy Regulatory Commission by submissions ordered in Ordering or anomalous market behavior sufficient to require the Identified Entities to show cause why they section 402(a) of the Department of Paragraph (D) above, in a hearing room should not be found to have engaged in Gaming Energy Organization Act and the of the Federal Energy Regulatory Practices in violation of the ISO’s and PX’s tariffs. Federal Power Act, and pursuant to the Commission, 888 First Street, NE., As a result, the burden of going forward will be placed on the Identified Entities. However, the Commission’s Rules of Practice and Washington, DC 20426. Such conference ultimate burden is upon the Commission. To that Procedure and the regulations under the shall be held for the purpose of end, the Commission is aware that many parties in Federal Power Act (18 CFR Chapter I), establishing a procedural schedule. The California and elsewhere in the West have sought a public hearing shall be held in Docket presiding judge is authorized to a forum in which to address the issues raised in this proceeding. Those parties may participate in this Nos. EL03–137–000, EL03–138–000, establish procedural dates and to rule proceeding upon attaining intervenor status. EL03–139–000, EL03–140–000, EL03– on all motions (except motions to 77 See supra P 2. 141–000, EL03–142–000, EL03–143– dismiss), as provided in the
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Commission’s Rules of Practice and Attachment B—Market Participants 22. Salt River Project Agricultural Procedure. Alleged to Have Engaged in Congestion- Improvement and Power District (F) Docket Nos. EL03–137–000, EL03– Related Practices in Violation of the 23. San Diego Gas & Electric Company MMIP 24. Sempra Energy Trading Corp. 138–000, EL03–139–000, EL03–140– 25. Southern California Edison 000, EL03–141–000, EL03–142–000, Cutting Non-firm Company EL03–143–000, EL03–144–000, EL03– 1. American Electric Power Services 26. TransAlta Energy Marketing (U.S.) 145–000, EL03–146–000, EL03–147– Corp. Inc. and TransAlta Energy Marketing 000, EL03–148–000, EL03–149–000, 2. Aquila, Inc (California), Inc. EL03–150–000, EL03–151–000, EL03– 3. Cargill-Alliant, LLC 27. Williams Energy Services Corp. 152–000, EL03–153–000, EL03–154– 4. City of Glendale Scheduling Service on Out-of-Service 000, EL03–155–000, EL03–156–000, 5. City of Riverside Lines EL03–157–000, EL03–158–000, EL03– 6. Coral Power, LLC 159–000, EL03–160–000, EL03–161– 7. Duke Energy Trading & Marketing 1. City of Anaheim 000, EL03–162–000, EL03–163–000, Company 2. Coral Power, LLC 3. Duke Energy Trading and Marketing EL03–164–000, EL03–165–000, EL03– 8. Dynegy Power Marketing Inc., Dynegy Power Corp., El Segundo Power LLC, Company 166–000, EL03–167–000, EL03–168– 4. Dynegy Power Marketing Inc., Dynegy Long Beach Generation LLC, Cabrillo 000, EL03–169–000, EL03–170–000, Power Corp., El Segundo Power LLC, Power I LLC, and Cabrillo Power II EL03–171–000, EL03–172–000, EL03– Long Beach Generation LLC, Cabrillo LLC 173–000, EL03–174–000, EL03–175– Power I LLC, and Cabrillo Power II 9. Enron Power Marketing, Inc. and 000, EL03–176–000, EL03–177–000, LLC Enron Energy Services Inc. EL03–178–000 and EL03–179–000 are 5. Enron Power Marketing, Inc. and 10. Mirant Americas Energy Marketing, hereby consolidated for purposes of Enron Energy Services Inc. hearing and decision. LP, Mirant California, LLC, Mirant 6. Morgan Stanley Capital Group Delta, LLC, and Mirant Potrero, LLC (G) The Secretary is hereby directed to 7. Powerex Corp. 11. Morgan Stanley Capital Group 8. Sempra Energy Trading Corp. publish a copy of this order in the 12. Pacific Gas and Electric Company Federal Register. 13. PacifiCorp. Load Shift By the Commission. Commissioner Massey 14. Portland General Electric Company 1. City of Glendale dissented in part with a separate statement 15. Powerex Corp. 2. Coral Power, LLC attached. 16. Puget Sound Energy, Inc. 3. Duke Energy Trading and Marketing 17. San Diego Gas & Electric Company Magalie R. Salas, Company 18. Sempra Energy Trading 4. Dynegy Power Marketing Inc., Dynegy Secretary. 19. Sierra Pacific Power Company Power Corp., El Segundo Power LLC, Attachment A.—Market Participants Alleged 20. Southern California Edison Long Beach Generation LLC, Cabrillo to Have Engaged in the False Import Practice Company Power I LLC, and Cabrillo Power II in Violation of the MMIP Circular Scheduling LLC 1. Aquila, Inc. 5. Enron Power Marketing, Inc. and 2. Arizona Public Service Co. 1. American Electric Power Service Enron Energy Services Inc. 3. Bonneville Power Administration Corp. 6. Los Angeles Department of Water and 4. City of Glendale 2. Aquila, Inc. Power 5. Coral Power, LLC 3. Automated Power Exchange, Inc. 7. Mirant Americas Energy Marketing, 6. Duke Energy Trading and Marketing Co. 4. Cargill-Alliant, LLC LP, Mirant California, LLC, Mirant 7. Dynegy Power Marketing Inc., Dynegy 5. City of Glendale Delta, LLC, and Mirant Potrero, LLC Power Corp., El Segundo Power LLC, Long 6. City of Redding 8. Northern California Power Agency Beach Generation LLC, Cabrillo Power I 7. City of Riverside 9. Powerex Corp. LLC, and Cabrillo Power II LLC 8. Coral Power, LLC 10. Williams Energy Services Corp. 8. Enron Power Marketing, Inc. and Enron 9. Duke Energy Trading and Marketing Attachment C.—Market Participants Alleged Energy Services Inc. Company 10. Dynegy Power Marketing Inc., To Have Engaged in Paper Trading in 9. Idaho Power Co. Violation of the MMIP 10. Los Angeles Department of Water and Dynegy Power Corp., El Segundo 1. Arizona Public Service Co. Power Power LLC, Long Beach Generation 2. Automated Power Exchange, Inc. 11. Mirant Americas Energy Marketing, LP, LLC, Cabrillo Power I LLC, and Cabrillo Power II LLC 3. Bonneville Power Administration Mirant California, LLC, Mirant Delta, LLC, 4. California Department of Water Resources and Mirant Potrero, LLC 11. Enron Power Marketing, Inc. and 5. California Power Exchange 12. Pacificorp Enron Energy Services Inc. 6. City of Anaheim 13. PGE Energy Services 12. F P & L Energy 7. City of Azusa 14. Portland General Electric Co. 13. Idaho Power Company 8. City of Glendale 15. Powerex Corp. 14. Los Angeles Department of Water 9. City of Pasadena 16. Public Service Co. of New Mexico and Power 10. Coral Power, LLC 17. Puget Sound Energy 15. Mirant Americas Energy Marketing, 11. Duke Energy Trading & Marketing Co. 18. Reliant Resources, Inc., Reliant Energy LP, Mirant California, LLC, Mirant 12. Dynegy Power Marketing Inc., Dynegy Power Corp., El Segundo Power LLC, Long Power Generation, and Reliant Energy Delta, LLC, and Mirant Potrero, LLC Beach Generation LLC, Cabrillo Power I Services, Inc. 16. Modesto Irrigation District LLC, and Cabrillo Power II LLC 19. Salt River Project Agricultural 17. Morgan Stanley Capital Group 13. Enron Power Marketing, Inc. and Enron Improvement and Power District 18. Pacificorp Energy Services Inc. 20. Sempra Energy Trading Corp. 19. PGE Energy Services 14. Idaho Power Company 21. Tuscon Electric Power Co. 20. Powerex Corp. 15. Los Angeles Department of Water and 22. Williams Energy Services Corp. 21. Public Service Company of Colorado Power
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16. Mirant Americas Energy Marketing, LP, 12. California Independent System Operator 46. PGET and PGEES Mirant California, LLC, Mirant Delta, LLC, Corporation 47. Pinnacle West Companies and Mirant Potrero, LLC 13. California Parties (People of the State of 48. Portland General Electric Company 17. Modesto Irrigation District California ex rel. Bill Lockyer, Attorney 49. Powerex Corp. 18. Northern California Power Agency General, the California Electricity 50. PPL Montana, LLC and PPL EnergyPlus, 19. Pacific Gas and Electric Co. Oversight Board, the California Public LLC (PPL Parties) 20. Powerex Corp. Utilities Commission, Pacific Gas and 51. PPM Energy Inc. (fna Pacificorp Power 21. Puget Sound Energy, Inc. Electric Company, and Southern California Marketing Inc.) 22. Reliant Resources, Inc., Reliant Energy Edison Company) 52. Public Service Company of Colorado Power Generation, and Reliant Energy 14. CAlifornians for Renewable Energy 53. Public Service Company of New Mexico Services, Inc. (CARE) 54. Puget Sound Energy, Inc. 23. Sempra Energy Trading Corp. 15. Calpine Corporation 55. Reliant Energy Power Generation, Inc. 24. Southern California Edison Co. 16. Cities of Anaheim, Azusa, Banning, and Reliant Energy, Inc. (Reliant) 25. Western Area Power Administration Colton and Riverside, California 56. Sacramento Municipal Utility District 26. Williams Energy Services Corp. 17. City of Glendale, California 57. Enron 18. City of Pasadena, California 58. Salt River Project Agricultural Improvement and Power District Attachment D.—Market Parties Alleged to 19. City of Redding, California 59. Sempra Energy Resources Have Engaged in Double Selling in Violation 20. City of Santa Clara 60. Sempra Energy Trading Corp. of the MMIP 21. City of Seattle, Washington 22. City of Vernon, California 61. Public Utility District No. 1 of Snohomish 1. Duke Energy Trading and Marketing Co. 23. Competitive Supplier Group (El Paso County, Washington 2. Dynegy Power Marketing Inc., Dynegy Merchant Energy, LP, BP Energy Company, 62. TransAlta Energy Marketing (U.S.) Inc. Power Corp., El Segundo Power LLC, Long Coral Power, IDACORP Energy LP, Exelon and TransAlta Energy Marketing Beach Generation LLC, Cabrillo Power I Corporation on behalf of Exelon Generation (California), Inc. LLC, and Cabrillo Power II LLC Company, LLC, PECO Energy Company 63. TransCanada Energy, Ltd. 3. Mirant Americas Energy Marketing, LP, and Commonwealth Edison Company, 64. Turlock Irrigation District Mirant California, LLC, Mirant Delta, LLC, Portland General Electric Company, Public 65. Tuscon Electric Power Company and Mirant Potrero, LLC 66. Valley Electric Association, Inc. 4. Reliant Resources, Inc., Reliant Energy Service Company of New Mexico, Sempra Energy Trading Corporation, TransAlta 67. Western Area Power Administration Power Generation, and Reliant Energy 68. Western Power Trading Forum Services, Inc. Energy Marketing (U.S.) Inc., TransAlta Energy Marketing (California), Inc., 69. Williams Energy Marketing & Trading Attachment E.— Entities that Submitted 100 TransCanada Energy Ltd., Avista Energy, Company Day Evidence in California (Docket Nos. Inc., Puget Sound Energy, Inc., Attachment F.—Parties Filing Briefs on EL00–95, EL00–98, EL01–10, EL02–60 and Constellation Power Source, Inc., Powerex Commission Staff’s Interpretation of the EL02–62) 80 Corp., and Public Service Company of MMIP Colorado) 1. AES Alamitos, LLC, AES Huntington 1. American Public Power Association Beach, LLC, AES Redondo Beach, LLC, and 24. Constellation Power Source, Inc. and 2. Arizona Electric Power Cooperative AES Southland, LLC (AES) NewEnergy, Inc. 3. Avista Energy 2. Allegheny Energy Supply Co. 25. Coral Power, LLC 4. Bonneville Power Administration 3. Arizona Electric Power Cooperative, Inc. 26. Duke Energy North America, LLC and 5. California Generators (Mirant, Dynegy, 4. Automated Power Exchange, Inc. Duke Energy Trading and Marketing, Williams) 5. Avista Energy, Inc. LLC(Duke Energy) 6. California Independent System Operator 6. Avista Corporation d/b/a Avista Utilities 27. Dynegy Power Marketing, Inc. et al. Corporation 7. Avista Energy, Inc., BP Energy Company, 28. Electric Power Supply Association 7. California Parties (California Attorney IDACORP Energy L.P., Puget Sound 29. El Paso Merchant Energy, LP General, California Electricity Oversight Energy, Inc., TransAlta Energy Marketing 30. Enron Power Marketing, Inc. and Enron Board, California Public Utilities (U.S.) Inc., TransAlta Energy Marketing Energy Services, Inc. Commission, Pacific Gas & Electric (California) Inc., and TransCanada Energy, 31. Eugene Water & Electric Board Company, and Southern California Edison Ltd. 32. Exelon (Exelon Corporation on behalf of Company) 8. Bonneville Power Administration Commonwealth Edison Company, Exelon 8. Calpine Corporation 9. BIT (City of Burbank, California, the Generation Company, LLC and PECO 9. CARE Imperial Irrigation District, Turlock Energy Company) 10. City of Glendale, California Irrigation District) (Joint Reply Comments 33. Public Utility District No. 2 of Grant 11. City of Redding, California and Proposed Reply Findings) County 12. City of San Diego, California 10. California Electricity Oversight Board and 34. Hafslund Energy Trading, LLC 13. Colorado River Commission of Nevada California Public Utilities Commission 35. IDACORP Energy LP and Idaho Power 14. Competitive Supplier Group (Aquila, 11. City of Burbank, California, City of Company Aquila Merchant Services, Arizona Public Glendale, California, Turlock Irrigation 36. Imperial Irrigation District Service Company, Avista Energy, District, and Imperial Irrigation District 37. Independent Energy Producers Constellation Power Source, Coral Power, Association El Paso Merchant Energy, IDACORP 80 The following entities filed comments in a 38. Indicated Long-Term Sellers (Allegheny Energy, Idaho Power Company, Pinnacle related proceeding in Puget Sound Energy, Inc., et Energy Supply Company, LLC, Coral West Capital Corporation, Portland General al. v. All Jurisdictional Sellers, Docket No. EL01– Power, L.L.C., Mirant Americas Energy Electric, Puget Sound Energy, and Sempra 10–000: AES, Avista et al., CARE, Public Utility Marketing, L.P., Morgan Stanley Capital District No. 1 of Chelan County, City of Santa Clara, Energy Trading Corp.) City of Seattle, City of Tacoma and Port of Seattle, Group Inc. and Sempra Energy Resources) 15. Coral Power Coral Power, Duke Energy North America, 39. Los Angeles Department of Water and 16. Duke Energy North America and Duke IDACORP and Idaho Power, Kaiser Aluminum & Power Energy Trading and Marketing Chemical, Modesto Irrigation District, Northern 40. Merrill Lynch Capital Services, Inc. 17. Electric Power Supply Association California Power Agency, Northwest PUDs (Public 41. Mirant (Mirant Americas Energy 18. Electricity Consumers Resource Council Utility District No. 2 of Grant County, WA et al.), Marketing, LP, Mirant California, LLC, 19. Enron Power Marketing, Inc. PacifiCorp, Pinnacle West, Portland General Mirant Delta, LLC, and Mirant Potrero, 20. Grays Harbor County, Washington Public Electric, PPL Montana and PPL Energy Plus, Public LLC) Service Company of New Mexico, Puget Sound Utility District Energy, Reliant Energy, Sacramento Municipal 42. Mirant Americas Energy Marketing, LP 21. Los Angeles Department of Water and Utility District, Transaction Finality Group, 43. Morgan Stanley Capital Group, Inc. Power TransAlta Energy Marketing, Williams Energy 44. Northern California Power Agency 22. MG Industries, Tamco, and Lehigh Marketing & Trading Company. 45. PacifiCorp Southwest Cement Company
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23. Modesto Irrigation District posted on July 2, 2002, the ISO has received scheduled to provide Ancillary Services. 24. Morgan Stanley Capital Group requests from various parties for information Beginning on June 14, 1999, the ISO began 25. Northern California Power Agency about Scheduling Coordinators (1) that rescinding Ancillary Services capacity 26. PJM Industrial Customer Coalition initially received payments for providing to payments when such services were not 27. PacifiCorp the ISO Ancillary Services that subsequently delivered. Failure to deliver such services 28. Powerex Corp. were rescinded because the scheduled 29. Public Service Company of New Mexico generating units were unable to provide such may be the result of a number of factors, 30. Public Utility District No. 2 of Grant services, and (2) that agreed to provide including economic decisions, outages, or County, Washington Ancillary Services for their own needs (i.e., operational changes. The ISO charges the 31. Puget Sound Energy self-provision) but in fact did not do so. As relevant market price to Scheduling 32. Reliant described in the July 2, 2002 Market Notice, Coordinators that indicated they would self- 33. Sempra Energy Trading Corp. the ISO does not consider the names of such provide Ancillary Services but subsequently Scheduling Coordinators or the aggregated did not do so. Attachment G.—ISO Market Notice, July 3, amounts of payments rescinded for non- The Ancillary Services payments listed performance or additional charges for failure 2002 below represent all invoiced amounts to self-provide to be confidential or Ancillary Services Payments Rescinded Due commercially sensitive under the ISO Tariff through April 30, 2002 and are subject to to Generator Unavailability Section 20.3.2. potential change as a result of the dispute Market Participants and Scheduling The ISO monitors the availability and resolution process set forth in the ISO Tariff. Coordinators: As detailed in a Market Notice performance of generating resources
Ancillary service ca- Scheduling coordinator name pacity payments rescinded
Arizona Public Service Co ...... $17,832.13 Automated Power Exchange ...... 213,288.24 Avista Energy ...... 53,466.57 Bonneville Power Administration ...... 33,432.76 California Department of Water Resources ...... 2,167,285.09 California Power Exchange ...... 20,275,167.45 Calpine ...... 2.65 City of Anaheim ...... 93,042.14 City of Azusa ...... 4,450.00 City of Glendale ...... 1,971.41 City of Pasadena ...... 609,196.38 City of Vernon ...... 6,106.33 Constellation Power Source ...... 1,456.53 Coral Power ...... 56,459.65 Duke Energy Trading & Marketing ...... 14,355,586.95 Dynegy Electric Clearinghouse ...... 25,193,737.23 Enron Power Marketing Inc ...... 991,443.30 Mirant ...... 11,167,048.87 Modesto Irrigation District ...... 51,176.11 Northern California Power Agency ...... 146,592.71 PG&E—Utility ...... 10,995,192.78 PG&E Transmission ...... 19,411.23 PG&E Transmission—Non-Grid 81 ...... 65,199.05 Portland General Electric Co ...... 3,347.35 PowerEx ...... 389,325.10 Puget Sound Energy ...... 10,000.00 Reliant Energy Services ...... 16,715,969.28 Sempra Energy Trading ...... 22,215.60 Southern California Edison ...... 286,310.15 Western Area Power Administration ...... 21,304.02 Williams Energy Services ...... 25,073,505.04
Total ...... 129,040,522.10 The ‘‘PG&E Transmission—Non-Grid’’ charges are in dispute and have not yet been invoiced to PG&E Transmission. PG&E Transmission’s responsibility for payment of these charges currently is under consideration by the Federal Energy Regulatory Commission.
If you have any questions, about this Client Relations Communications.0715 Market Notice, please contact your Client [email protected] Account Representative.
DEPARTMENT OF ENERGY, FEDERAL ENERGY REGULATORY COMMISSION
Docket No.
American Electric Power Service Corporation ...... EL03–137–000 Aquila, Inc ...... EL03–138–000 Arizona Public Service Company ...... EL03–139–000 Automated Power Exchange, Inc ...... EL03–140–000 Bonneville Power Administration ...... EL03–141–000 California Department of Water Resources ...... EL03–142–000
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DEPARTMENT OF ENERGY, FEDERAL ENERGY REGULATORY COMMISSION—Continued
Docket No.
California Power Exchange ...... EL03–143–000 Cargill-Alliant, LLC ...... EL03–144–000 City of Anaheim, California ...... EL03–145–000 City of Azusa, California ...... EL03–146–000 City of Glendale, California ...... EL03–147–000 City of Pasadena, California ...... EL03–148–000 City of Redding, California ...... EL03–149–000 City of Riverside, California ...... EL03–150–000 Coral Power, LLC ...... EL03–151–000 Duke Energy Trading and Marketing Company ...... EL03–152–000 Dynegy Power Marketing Inc., Dynegy Power Corp., El Segundo Power LLC, Long Beach Generation LLC, Cabrillo Power I EL03–153–000 LLC, and Cabrillo Power II LLC. Enron Power Marketing, Inc. and Enron Energy Services Inc ...... EL03–154–000 Florida Power & Light ...... EL03–155–000 Idaho Power Company ...... EL03–156–000 Los Angeles Department of Water and Power ...... EL03–157–000 Mirant Americas Energy Marketing, LP, Mirant California, LLC, Mirant Delta, LLC, and Mirant Potrero, LLC ...... EL03–158–000 Modesto Irrigation District ...... EL03–159–000 Morgan Stanley Capital Group ...... EL03–160–000 Northern California Power Agency ...... EL03–161–000 Pacific Gas and Electric Company ...... EL03–162–000 PacifiCorp ...... EL03–163–000 PGE Energy Services ...... EL03–164–000 Portland General Electric Company ...... EL03–165–000 Powerex Corporation (f/k/a British Columbia Power Exchange Corp.) ...... EL03–166–000 Public Service Company of Colorado ...... EL03–167–000 Public Service Company of New Mexico ...... EL03–168–000 Puget Sound Energy, Inc ...... EL03–169–000 Reliant Resources, Inc., Reliant Energy Power Generation, and Reliant Energy Services, Inc ...... EL03–170–000 Salt River Project Agricultural Improvement and Power District ...... EL03–171–000 San Diego Gas & Electric Company ...... EL03–172–000 Sempra Energy Trading Corporation ...... EL03–173–000 Sierra Pacific Power Company ...... EL03–174–000 Southern California Edison Company ...... EL03–175–000 TransAlta Energy Marketing (U.S.) Inc. and TransAlta Energy Marketing (California), Inc ...... EL03–176–000 Tucson Electric Power Company ...... EL03–177–000 Western Area Power Administration ...... EL03–178–000 Williams Energy Services Corporation ...... EL03–179–000
(Issued June 25, 2003) whole.1 Unfortunately, today’s order appears DEPARTMENT OF ENERGY MASSEY, Commissioner, dissenting in part: to take this remedy off of the table. I would Today the Commissioner takes another prefer to wait to see the extent of harm that Federal Energy Regulatory step toward addressing the market specific behaviors caused before addressing Commission manipulation that contributed to the the remedy issue. extraordinary Western power crisis. I support Second, I would not apply the show cause [Docket Nos. EL03–134–000 and EL03–135– this show cause order, and applaud the order to non-public utilities that are 000] Commission for dealing with these issues. I otherwise not jurisdictional. Today’s order write separately to express my disagreement uses the same rationale for doing so as was with two aspects of the order. Richard Blumenthal, Attorney General First, I would not limit the monetary used to extend a refund obligation to non- of the State of Connecticut, and The 2 penalty for tariff violations to disgorgement public utilities in our July 25, 2001 Order. Connecticut Department of Public I disagreed with the rationale at that time, of unjust profits. Market manipulation can Utility Control v. NRG Power raise the single market clearing price paid by and I still do not believe the Commission has all market participants and collected by all this authority. Marketing, Inc., Connecticut Light and sellers. The Federal Power Act requires that For these reasons, I dissent in part from Power Company; Notice of Initiation of all rates and charges be just and reasonable. today’s order. Proceedings and Refund Effective Where the market has been manipulated so William L. Massey, Dates as to affect the market clearing price, that price is not just and reasonable and is Commissioner. June 27, 2003. therefore unlawful. Simply requiring that bad [FR Doc. 03–16821 Filed 7–2–03; 8:45 am] Take notice that on June 25, 2003, the actors disgorge their individual profits does BILLING CODE 6717–01–P not make the market whole because all Commission issued an order in the sellers received the unlawful price caused by above-indicated docket nos. initiating the manipulation. The narrow remedy of proceedings in Docket Nos. EL03–134– profit disgorgement is not an adequate 1 The Commission has accepted the make the 000 and EL03–135–000 under section remedy for the adverse effect of the bad market whole remedy as part of a settlement for 206 of the Federal Power Act. behavior on the market price, and may not withholding generation from the California PX be an adequate deterrent to future behavior. market. See 102 FERC ¶ 61,108 (2003). The refund effective date in Docket The appropriate remedy may be that the 2 San Diego Gas & Electric Company et al., 96 Nos. EL03–134–000 and EL03–135–000 manipulating seller makes the market FERC ¶ 61,120 (2001).
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will be 60 days after publication of this instructions on the Commission’s Web behavior (Gaming Practices) in violation notice in the Federal Register. site under the ‘‘e-Filing’’ link. of the California Independent System Protest Date: July 7, 2003. Operator Corporation’s (ISO) and Magalie R. Salas, Magalie R. Salas, California Power Exchange’s (PX) tariffs Secretary. during the period January 1, 2000 to Secretary. [FR Doc. 03–16823 Filed 7–2–03; 8:45 am] June 20, 2001.1 This order also finds BILLING CODE 6717–01–P [FR Doc. 03–16750 Filed 7–2–03; 8:45 am] that there is evidence that a number of BILLING CODE 6717–01–P Partnership Entities, identified below, appear to have had similar Partnerships, DEPARTMENT OF ENERGY which could be attempts to engage in DEPARTMENT OF ENERGY Federal Energy Regulatory similar activities as the Enron 2 Commission Federal Energy Regulatory partnerships. Commission 2. Consequently, this order directs [Docket Nos. RP00–469–005, RP01–22–007 those Partnership Entities, in a trial-type and RP03–177–002] [Docket No. EL03–180–000, et al.] evidentiary hearing to be held before an Enron Power Marketing, Inc. and Enron administrative law judge (ALJ), to show East Tennessee Natural Gas Company; cause why their behavior during January Notice of Compliance Filing Energy Services, Inc., et al.; Order To Show Cause Concerning Gaming and/ 1, 2000 to June 20, 2001 does not June 26, 2003. or Anomalous Market Behavior constitute gaming and/or anomalous Through the Use of Partnerships, market behavior as defined in the ISO Take notice that on June 23, 2003, East and PX tariffs.3 In addition, we also Tennessee Natural Gas Company (East Alliances or Other Arrangements and Directing Submission of Information direct the ALJ to hear evidence and Tennessee) tendered for filing as part of render findings and conclusions its FERC Gas Tariff, Original Volume June 25, 2003. quantifying the full extent to which the No. 1, the revised tariff sheets listed on Before Commissioners: Pat Wood, III, Partnership Entities may have been Appendices A and B of the filing. Chairman; William L. Massey, and Nora unjustly enriched as a result of their East Tennessee states that the purpose Mead Brownell. conduct, and the ALJ may recommend of this filing is to comply with the In the matter of: EL03–180–000, EL03– the monetary remedy of disgorgement of Commission’s May 23, 2003 ‘‘Order on 181–000, EL03–182–000, EL03–183–000, unjust profits and any other additional, Rehearing and Compliance Filings’’ EL03–184–000, EL03–185–000, EL03–186– appropriate non-monetary remedies. For issued in East Tennessee’s Order No. 000, EL03–187–000, EL03–188–000, EL03– example, the ALJ may identify non- 637 proceeding in the captioned 189–000, EL03–190–000, EL03–191–000, monetary remedies such as revocation EL03–192–000, EL03–193–000, EL03–194– of a Partnership Entity’s market-based dockets. 000, EL03–195–000, EL03–196–000, EL03– East Tennessee states that copies of its 197–000, EL03–198–000, EL03–199–000, rate authority and revisions to a filing have been mailed to all affected EL03–200–000, EL03–201–000, EL03–202– Partnership Entity’s code of conduct if customers and interested state 000, EL03–203–000 (Consolidated): Enron the ALJ finds such remedies commissions, as well as to all parties on Power Marketing, Inc. and Enron Energy appropriate. the official service lists compiled by the Services, Inc., Aquila, Inc., City of Glendale, Secretary of the Commission in these California, City of Redding, California, 1 June 20, 2001 has been selected as the end date proceedings. Colorado River Commission, Constellation of the relevant period in this proceeding, when a Any person desiring to protest said Power Source, Inc., Coral Power, LLC, El prospective mitigation and market monitoring plan Paso Merchant Energy, L.P., Eugene Water took effect; see San Diego Gas & Electric Co., et al., filing should file a protest with the and Electricity Board, Idaho Power Company, 95 FERC ¶ 61,115 (April 26 2001 Order), order on Federal Energy Regulatory Commission, Koch Energy Trading, Inc., Las Vegas reh’g, 95 FERC ¶ 61,418 (2001) (June 19 Order) (in 888 First Street, NE., Washington, DC Cogeneration, L.P., MIECO, Modesto the April 26, 2001 Order, the Commission issued a prospective mitigation and market monitoring 20426, in accordance with § 385.211 of Irrigation District, Montana Power Company, plan for wholesale sales through the organized real- the Commission’s Rules and Morgan Stanley Capital Group, Northern time markets operated by the ISO; the Commission Regulations. All such protests must be California Power Agency, PacifiCorp, PECO, acted on requests for rehearing and clarification of filed in accordance with § 154.210 of the Powerex Corporation (f/k/a British Columbia the April 26 Order on June 19, 2001, modifying and Power Exchange Corporation), Public Service expanding the mitigation plan, effective June 20, Commission’s Regulations. Protests will 2001). While the mitigation plan was primarily be considered by the Commission in Company of New Mexico, Sempra Energy Trading Corporation, TransAlta Energy intended to control the real-time energy market, it determining the appropriate action to be Marketing (U.S.) Inc. and TransAlta Energy also had a disciplining effect on congestion costs taken, but will not serve to make and eliminated the opportunity to profit from marketing (California), Inc., Valley Electric Gaming Practices. The ISO Market Analysis Report protestants parties to the proceedings. Association, Inc. for June 2001 shows that the average price of real- This filing is available for review at the time electricity in June decreased 62 percent to Commission in the Public Reference I. Introduction $104/MWh from the May average of $275/MWh and Room or may be viewed on the 1. This order finds that, based on a total congestion costs for June 2001 were $0.5 Commission’s Web site at http:// report by Commission Staff (Staff Final million, down from $7 million in May. 2 The Staff Final Report listed a number of entities www.ferc.gov using the ‘‘FERRIS’’ link. Report), and evidence and comments that may have had a partnership, alliance or other Enter the docket number excluding the submitted by market participants, there arrangement with Enron. Not all of these entities are last three digits in the docket number is evidence that Enron Power Marketing, addressed in this order. Commission Staff is field to access the document. For Inc. and Enron Energy Services Inc. conducting further analysis to determine if any further action is appropriate for these other entities. assistance, please contact FERC Online (Enron) and a number of entities 3 This order also directs the Partnership Entities Support at identified below (collectively, to (1) inventory all revenues from their [email protected] or toll- Partnership Entities) worked in concert partnerships, alliances or other arrangements free at (866) 208–3676, or TTY, contact through partnerships, alliances or other discussed below and (2) file, as part of their show cause responses, these revenue figures as well as (202) 502–8659. The Commission arrangements (jointly, Partnerships) to file all related correspondence, e-mail, memoranda, strongly encourages electronic filings. engage in activities that constitute tapes, phone logs, transaction data, billing See 18 CFR 385.2001(a)(1)(iii) and the gaming and/or anomalous market statements and agreements.
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3. This order complements an order otherwise exercised undue influence its fact-finding investigation was being issued concurrently, in which the over wholesale electricity prices in the publicly released on March 26, 2003.10 Commission (1) determines that certain West since January 1, 2000.7 8. Since 1998, the ISO and PX tariffs conduct by a number of market 6. Pursuant to the directive of the have contained provisions that identify participants, during the period January February 13, 2002 Order, Staff and prohibit ‘‘gaming’’ and ‘‘anomalous 1, 2000 to June 20, 2001, constituted undertook a comprehensive fact-finding market behavior’’ in the sale of electric Gaming Practices that violated the ISO investigation, encompassing both data power.11 As explained in more detail and PX tariffs, (2) directs those who gathering and data analysis of physical below, the ISO tariff, through the ISO’s engaged in those Gaming Practices,in a and financial transactions in and out of Market Monitoring and Information trial-type evidentiary proceeding to be the California bulk power marketplace Protocol (MMIP), defines gaming, in held before an ALJ, to show cause why and related markets during 2000–2001. part, as ‘‘taking unfair advantage of the their behavior during the relevant Staff’s investigation has included a rules and procedures set forth in the PX period does not constitute gaming and/ review of a wide variety of factors and or ISO tariffs, Protocols or Activity or anomalous market behavior as behaviors that may have influenced Rules * * * to the detriment of the defined in the ISO and PX tariffs, (3) electric and natural gas prices in the efficiency of, and of consumers in, the directs the ALJ to hear evidence and West over this period. ISO Markets.’’ 12 The ISO tariff, through render findings and conclusions 7. In August 2002, Staff released its the MMIP, defines anomalous market quantifying the full extent of their Initial Report on potential manipulation behavior, in part, as ‘‘behavior that conduct, and (4) provides that the ALJ of electric and natural gas prices in departs significantly from the normal may recommend the monetary remedy these markets, in which it concluded behavior in competitive markets that do of disgorgement of unjust profits and certain conduct was gaming while other not require continuing regulation or as any other additional, appropriate non- practices were legitimate practices.8 The behavior leading to unusual or monetary remedies.4 Gaming Practices Initial Report noted that data requests unexplained market outcomes.’’ 13 The for which the Gaming Practices Show were sent to over 130 sellers of Staff Final Report, among other things, Cause Order institutes a show cause wholesale electricity; entities from all cites to a study by the ISO,14 in which proceeding involve: False Import; sectors of the industry may have Congestion-Related Practices (Cutting engaged in such trading practices. in Avista Corp. Comments in opposition to the Non-firm, Circular Scheduling, (Based on the analysis in the Initial agreement were filed on February 19, 2003, by the City of Tacoma, Washington and the California Scheduling Counterflows on Out-of- Report, the ISO subsequently designed Attorney General. On May 15, 2003, Trial Staff Service Lines, and Load Shift); market screens in an effort to review its amended its study in support of the settlement Ancillary Services-Related Practices transaction data and identify potential agreement and requested that the agreement be transactions with characteristics certified to the Commission. Additional comments (Paper Trading and Double Selling); and were filed by Tacoma and California on May 27, 5 Selling Non-Firm Energy as Firm. indicative of these trading practices, 2003, with reply comments filed by Trial Staff and Whereas the Gaming Practices Show including the practices that were Avista Corporation. The settlement agreement is Cause Order concerns allegations that a identified by Staff as legitimate awaiting a determination by the Chief Judge on strategies; the ISO’s results are whether it should be certified. Moreover, on April number of market participants engaged 9, 2003, the Chief Judge issued an order in Avista in Gaming Practices, this order discussed below.) Staff expressly noted Corp. in which he determined that the settlement addresses allegations that certain market in this Initial Report, however, that its or hearing in that proceeding will cover all issues participants engaged in Gaming investigation into certain matters was raised by the Staff Final Report. Avista Corp. and ongoing and that other areas of inquiry Avista Energy Inc., Order of the Chief Judge Practices in concert with other market Confirming Rulings Made at Prehearing Conference participants.6 and recommendations not addressed in and Establishing Further Procedures, Docket No. 4. This order benefits customers by its Initial Report may be included in its EL02–115–000 (issued April 9, 2003). Therefore, establishing procedures to address Final Report.9 The Staff Final Report on this order does not address Avista Corp. In the El Paso Electric proceeding, on May 28, activities inconsistent with the ISO and 2003, the judge certified an uncontested settlement 7 PX tariffs during the period January 1, Fact-Finding Investigation of Potential to the Commission with a recommendation that it 2000 to June 20, 2001, consistent with Manipulation of Electric and Natural Gas Prices, 98 be accepted. El Paso Electric Company, et al., 103 FERC ¶ 61,165 (2002) (February 13, 2002 Order). due process. FERC ¶ 63,036 (2003). Accordingly, this order does The February 13, 2002 Order, of course, was not the not address El Paso Electric. beginning point of our investigation into the Further, this order only addresses issues that are II. Background justness and reasonableness of the rates of public not being litigated in the on-going Portland utility sellers into the ISO and PX markets. For a 5. By order issued on February 13, proceeding. general recitation of this procedural history, 10 2002, in Docket No. PA02–2–000, the including the series of events and circumstances Final Report on Price Manipulation in Western Commission directed a Staff giving rise to the California energy crisis, see San Markets: Fact-Finding Investigation of Potential investigation into whether any entity Diego Gas & Electric Co., et al., 97 FERC ¶ 61,275 Manipulation of Electric and Natural Gas Prices, (2001) (December 19, 2001 Order). Docket No. PA02–2–000 (March 26, 2003) (Staff manipulated prices in electricity or Final Report). The Staff Final Report is available on 8 Initial Report on Company-Specific Separate the Commission’s Web site at <
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the ISO identifies activities that purport 20, 2003.18 These filings are referred to tariffs.24 Thus, with respect to the to fall within the definitions of gaming as the ‘‘100 Days Evidence.’’ period prior to the October 2, 2000 and/or anomalous market behavior 10. On March 5, 2003, the refund effective date, the Commission identified in the ISO tariff, and which Commission issued a notice providing can order disgorgement of monies above occurred during the period January 1, that the Commission intended to the post October 2, 2000 refunds 2000 to June 20, 2001. release: (1) All documents submitted in ordered in the California Refund Docket No. PA02–2–000, except Proceeding, if it finds violations of the 9. In addition, on November 20, 2002, documents obtained from other Federal ISO and PX tariffs and finds that a the Commission issued an order that agencies in accord with the Federal monetary remedy is appropriate for allowed parties in Docket Nos. EL00– Records Act, 44 U.S.C. § 3510(b), and (2) such violations. Further, while refund 95–000, EL00–95–048, EL00–98–000 all documents submitted in response to protection has been in effect for sales in and EL00–98–042 to conduct additional the Discovery Order and Rehearing the ISO and PX short-term energy discovery into market manipulation by Order.19 On March 21, 2003, the markets since October 2, 2000, the various sellers during the western Commission issued an order directing Commission can additionally order power crisis of 2000 and 2001, and the release of information no later than additional disgorgement of unjust specified procedures for adducing this March 26, 2003 in accordance with the profits for tariff violations that occurred information.15 The Discovery Order above notice.20 after October 2, 2000 (i.e., to June 20, allowed the parties to conduct 11. Finally, by order issued on April 2001).25 discovery, review the material and 2, 2003,21 the Commission provided for 2. Commission Authority With Respect submit directly to the Commission the submission of briefs on Commission to Governmental Entities additional evidence and proposed new Staff’s interpretation of the MMIP and/or modified findings of fact based provisions concerning gaming and 13. We note that several of the anomalous market behavior as upon proffered evidence that is either Partnership Entities are governmental prohibiting certain practices by market indicative or counter-indicative of entities, subject to the jurisdictional participants. Thirty-three parties filed in exemption set forth in section 201(f) of market manipulation, no later than response. Their comments are discussed February 28, 2003.16 On February 10, the FPA.26 In the July 25, 2001 Order, below in the section on the MMIP as reiterated in the December 19, 2001 2003, the Commission issued an order provisions. affording parties an opportunity to Order, the Commission found that respond to submissions made by III. Discussion refund liability should apply to energy sold in the ISO and PX short-term adverse parties.17 The Rehearing Order A. The Commission’s Authority in This energy markets, including that sold by allowed parties to file reply comments Case governmental entities. Here, as well, we directly with the Commission by March 1. Commission Authority with Respect find that the potential remedies 17, 2003. The Commission in a later to the Period Prior to October 2, 2000 specified in this order, including the order extended the February 28, 2003 12. In our July 25, 2001 order 22 and disgorgement of unjust profits for the deadline to March 3, 2003, and allowed pre-October 2, 2000 period, should the reply comments to be filed by March the November 1, 2000 Order in the California Refund Proceeding, we apply to sales made by governmental established a refund effective date entities as well as to those sales by the Described in Enron Memos, (October 4, 2002), other Partnership Entities. publicly released on January 6, 2003, available at (October 2, 2000) concerning the market
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Here, the central transactions, MMIP,30 discussed in MMIP 1.1 Generators; unusual trades or wholesale sales of energy in interstate (Objectives) which provides in pertinent transactions; pricing and bidding commerce, were governed by FERC- part: patterns that are inconsistent with approved rules and a FERC- This Protocol sets forth the workplan prevailing supply and demand jurisdictional ISO and PX * * * [and] and, where applicable, the rules under conditions, e.g., prices and bids that thus fell within FERC’s jurisdiction which the ISO will monitor the ISO appear consistently excessive for or regardless of the jurisdictional nature of Markets to identify abuses of market otherwise inconsistent with such the sellers or buyers. Further, the power, to ensure to the extent possible conditions; and unusual activity or centralized wholesale spot electricity the efficient working of the ISO Markets circumstances relating to imports from markets operated by the California ISO immediately upon commencement of or exports to other markets or and PX were established (and have been their operation, and to provide for their exchanges.34 protection from abuses of market power modified) subject to FERC review and 2. The Staff Final Report’s Interpretation in both the short term and the long term, approval. Because the market did not of the MMIP 35 exist prior to FERC authorization, all and from other abuses that have the those who participated in the market potential to undermine their effective 19. In brief, the Staff Final Report had to recognize the controlling weight functioning or overall efficiency in interprets the MMIP as ‘‘rules of the of FERC authority. Moreover, it is fair accordance with Section 16.3 of the ISO road’’ which the Commission may that all those who benefitted from this Tariff.31 enforce, and as barring the kinds of market also bear responsibility for 17. The Staff Final Report also cites practices at issue here. The Staff Final remedying any potential unlawful part 2 of the MMIP which specifies what Report explains that the MMIP transactions that might have occurred in are termed ‘‘Practices Subject to enumerates objectionable practices, the the market. Scrutiny.’’ Among those practices are MMIP authorizes the ISO to impose ‘‘sanctions and penalties’’ or to refer * * * * * two that the Staff Final Report identifies as being of particular concern to the matters to the Commission for Consequently, if the price for a 36 Commission; the first is ‘‘gaming,’’ and appropriate sanctions or penalties, specific sale is found to be unjust and the second is ‘‘anomalous market and the MMIP was part of the ISO and unreasonable, then all sellers who behavior.’’ 32 Gaming is defined at PX tariffs on file with the Commission obtained that price received an unjust 37 Section 2.1.3 of the ISO’s MMIP as during the relevant period. and unreasonable rate. To the extent the follows: Accordingly, entities that transact Commission determines refunds are an [T]aking unfair advantage of the rules through the ISO or PX and engage in appropriate remedy for that sale, and procedures set forth in the PX or such enumerated practices are in consumers can only be made whole by ISO Tariffs, Protocols or Activity Rules, violation of filed tariffs. Further, the refunds from all sellers who received or of transmission constraints in periods Staff Final Report concludes that the excessive price. As [governmental in which exist substantial Congestion, to various practices were violations of the entity] sellers of energy and ancillary the detriment of the efficiency of, and of MMIP and thus violations of the ISO’s services accounted for up to 30 percent consumers in, the ISO Markets. and PX’s filed tariffs. of all sales in the California centralized ‘‘Gaming’’ may also include taking ISO and PX spot markets, excluding 3. Comments Regarding the Staff Final undue advantage of other conditions Report’s Interpretation of the MMIP them from a potential refund remedy that may affect the availability of could have a serious detrimental effect transmission and generation capacity, a. Supporting Comments 28 on consumers. such as loop flow, facility outages, level 20. Several commenters supported the 15. This rationale applies equally in of hydropower output or seasonal limits Commission Staff’s interpretation of the the context of violations of MMIP on energy imports from out-of-state, or MMIP.38 They argue that: (1) The MMIP provisions that prohibit gaming and/or actions or behaviors that may otherwise is on file with the Commission as part anomalous market behavior, as such render the system and the ISO Markets of a filed tariff, and has been for some provisions apply to all transactions in vulnerable to price manipulation to the time, and thus can be enforced by the the California market. detriment of their efficiency.33 Commission; (2) the MMIP applies to all B. The MMIP’s Provisions Concerning 18. Anomalous market behavior is market participants, and is expressly Gaming and/or Anomalous Market defined at Section 2.1.1 of the ISO’s intended to identify abuses and to Behavior MMIP: provide for protection from such abuses; ‘‘Anomalous market behavior’’ *** 1. Provisions Cited in the Staff Final is * * * behavior that departs 34 MMIP 2.1.1.5 further provides that: Report significantly from the normal behavior The Market Surveillance Unit shall evaluate, on in competitive markets that do not an ongoing basis, whether the continued or 16. Concerning the Commission’s require continuing regulation or as persistent presence of such circumstances indicates remedial authority with respect to the the presence of behavior that is designed to or has behavior leading to unusual or Partnership Entities’ alleged practices, the potential to distort the operation and efficient unexplained market outcomes. Evidence functioning of a competitive market, e.g., the the Staff Final Report notes that the of such behavior may be derived from strategic withholding and redeclaring of capacity, MMIP is one of several protocols that a number of circumstances, including: and whether it indicates the presence and exercise the Commission required the ISO and of market power or of other unacceptable practices. withholding of Generation capacity PX to include as part of their filed rate 35 See Staff Final Report, ch. VI at 8–10. under circumstances in which it would 36 schedules.29 The Staff Final Report also MMIP 7.3. normally be offered in a competitive 37 cites the underlying purposes of the As the Staff Final Report notes, and as market; unexplained or unusual discussed in more detail below, the MMIP has been redeclarations of availability by part of the ISO and PX tariffs on file with the 28 Id. at 61,513 (footnote omitted); accord id. at Commission since 1998, which encompasses the 61,511–13. On rehearing, the Commission relevant period of January 1, 2000 through June 20, reaffirmed its jurisdiction over these transactions. 30 Staff Final Report, ch. VI at 6–7. 2001. December 19, 2001 Order, 97 FERC at 62,180–87. 31 MMIP 1.1. 38 E.g., the California Parties, which include the 29 As further explained below, the MMIP has been 32 Staff Final Report, ch. VI at 7–10. California Attorney General and the California part of the ISO’s and PX filed tariffs since 1998. 33 MMIP 2.1.3. Public Utilities Commission, among others.
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(3) the MMIP provides that the practices Section 5.5.1 (Planned Maintenance); (2) tariff), ultimately, the MMIP directs the that are expressly subject to scrutiny are Section 5.5.3 (Forced Outages); (3) Market Surveillance Unit to refer gaming and anomalous market behavior, Section 5.3 (Identification of Generating matters to this Commission for and each is defined in some detail; (4) Units); (4) Section 5.4 (Western Systems enforcement.42 The MMIP contemplates while the MMIP does not expressly Coordinating Council (WSCC) that, while the ISO may try to correct prohibit such Gaming Practices as Requirements); (5) Section 2.2.7.2 misconduct on its own, the Commission ‘‘ricochet’’ or ‘‘get shorty,’’ such a (Submitting Balanced Schedules); (6) is to be ‘‘the court of last resort’’ for standard would require a level of detail Section 2.5.22.11 (Failure to Conform to misconduct committed by market that would be impossible to achieve, Dispatch Instructions); and (7) Section participants, including the gaming and/ and it would require anticipating all of 20.3 (Confidential Information). or anomalous market behavior the myriad ways that could be dreamed misconduct defined in the MMIP. While 3. Commission Determination up to ‘‘game’’ the markets, and to spell part 2 of the MMIP enumerates suspect them all out in the MMIP; (5) it is hard 23. In sum, the MMIP puts market practices, MMIP 7.3 authorizes the ISO to conceive that market participants as participants on notice regarding their to impose ‘‘sanctions and penalties’’ or, sophisticated as those here did not rights and obligations in the as particularly relevant here, to refer realize that the kind of trading practices marketplace. It serves as the ‘‘rules of matters to the Commission for at issue here were inappropriate; and (6) the road’’ for market participants. It also appropriate sanctions or penalties. as part of a filed tariff, the MMIP contemplates that these rules will be 25. We agree with the Staff Final ultimately is for the Commission to enforced by the Market Surveillance Report that if entities are found to have interpret and enforce, and the MMIP Unit, in the form of monitoring and engaged in the identified misconduct, itself recognizes that the Commission is reporting, or by the appropriate body or they will have violated the ISO’s and the ultimate enforcement authority. bodies (including this Commission), in PX’s filed tariffs even if such formal the form of corrective actions.40 While procedures as referral outlined in the b. Opposing Comments the Commission’s role, in this regard, MMIP did not occur. The Commission 21. Several parties filed comments may be triggered by the referral can enforce a filed tariff even when opposing Commission Staff’s procedures outlined in the MMIP, the there are processes in that tariff which, interpretation of the MMIP.39 They Commission also possesses the had they been used, would have argue that: (1) The MMIP was intended authority to enforce a filed tariff even in assisted the Commission. Ultimately, to provide direction to the ISO and not the absence of a referral.41 That is, in the the Commission can enforce a filed tariff be a standard by which the Commission Staff Final Report, Staff concludes, and with or without the assistance of a prosecuted market participants’ we agree, that one key function of the complaint or a referral.43 conduct; (2) the MMIP does not MMIP is to put market participants on 26. In this regard, we note that the expressly bar any trading practices; and notice as to the rules of the road for ISO and PX each initially submitted its (3) the MMIP does not identify with market participants, so that the markets MMIP (along with other protocols), for precision the particular strategies that operated by the ISO are free from informational purposes only, on October are subject to scrutiny, and thus, it is too abusive conduct and may function as 31, 1997. The Commission, however, vague to serve as a standard by which efficiently and competitively as found that the protocols, including the to judge market participants’ conduct. possible. The Staff Final Report finds, MMIP, ‘‘govern a wide range of matters They argue that the Commission cannot and again we agree, that market which traditionally and typically appear hold market participants responsible in participants cannot reasonably argue in agreements that should be filed with these circumstances, when they have that they were not on notice that and approved by the Commission.’’ 44 not had fair notice that the trading conduct such as the Gaming Practices The Commission accepted the protocols, practices at issue here are prohibited. discussed below would be a violation of including the MMIP, for filing, and Further, they contend that there is the ISO and PX tariffs. In short, the key directed the ISO and PX each to post the extrinsic evidence indicating that function of the MMIP is to put market protocols on its Internet site and to file market participants, particularly participants on notice of what practices its complete protocols pursuant to including the ISO itself, did not view would be subject to monitoring and, section 205 of the FPA within 60 days the MMIP as a bar to the kind of trading potentially, corrective or enforcement of the ISO’s and PX’s Operations Date practices at issue here or as a basis for action, by either the ISO in the first (that date ultimately was April 1, ordering disgorgement of unjust profits. instance or by the Commission, whose 1998).45 Accordingly, the MMIP has In this respect, the parties argue that the role includes enforcing the terms and been part of the ISO’s and PX’s filed Commission to date has never indicated conditions of filed rate schedules. tariffs since 1998, which includes the that it viewed the MMIP as a bar to such Accordingly, it is appropriate for us to period January 1, 2000 to June 20, 2001 conduct; its orders, to the extent that institute this proceeding. at issue here. they have touched on such matters at 24. MMIP 2.3 and its several subparts 27. The Gaming Practices Show Cause all, have, in fact, implied the contrary, address how the ISO, including the Order also addresses the California according to the opposing commenters. Market Surveillance Unit, is to respond Parties’ argument that there may have to market participants engaging in any They also suggest that if the been violations of other tariff of the suspect practices delineated in Commission initiates an investigation, it provisions, besides the MMIP. That the MMIP. While the MMIP outlines would discourage new investment. order determines that the WSCC intermediate steps (such as arranging for requirements cited by the California c. Other Comments alternative dispute resolution or Parties make no reference to gaming 22. The California Parties also argue proposing language changes to the that other tariff provisions may have 42 MMIP 3.3.4. 43 been violated, citing the following tariff 40 Sections 2.3, 3.3.4 and 7.3 of the MMIP outline 16 U.S.C. §§ 824d, 824e (2000). the procedures to be followed by the ISO and the 44 Pacific Gas and Electric Co., et al., 81 FERC provisions from the ISO Tariff: (1) PX when a market participant is found to have ¶ 61,320 at 62,471 (1997). engaged in any of the suspect practices delineated 45 Id. The ISO (in Docket No. EC96–19–029, et al.) 39 E.g., California Generators; Competitive in the MMIP. and PX (in Docket No. EC96–19–28, et al.) each Supplier Group; Enron; Reliant Resources, Inc. 41 16 U.S.C. §§ 824d, 824e, 825h (2000). made that compliance filing on June 1, 1998.
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strategies or anomalous market behavior D. Alleged Partnership Gaming Its promotional literature entitled ‘‘Why (as does the MMIP), and therefore, those Involving Enron customers choose Enron,’’ was intended provisions do not provide a basis for 30. In this section, we discuss to convince others that using Enron, finding gaming and/or anomalous evidence indicating that Enron worked with its market knowledge of market behavior. That order also finds in concert with other entities, both complicated markets such as in that conduct involving arbitrage, inside and outside California, to California, was a good business underscheduling and confidentiality of implement Gaming Practices in ways decision; using Enron would save these certain data either (a) constituted that manipulated market outcomes. We entities labor and systems costs, and Gaming Practices, but did not warrant also discuss evidence that other entities importantly, using Enron would be remedies, or (b) did not constitute may have had similar agreements with profitable. Gaming Practices. Further, that order other market participants. 33. Under this business model, the nature of Enron’s interaction with its states that the Commission is currently 1. Alleged Partnership Gaming 48 investigating alleged violations related business partners developed over time. 31. Enron created a marketing For example, Enron would first offer to physical withholding. program based on the use of other ‘‘consulting’’ services that allowed C. Overview of PX and ISO Operations entities’ assets, thus avoiding large entities to outsource certain tasks rather capital expenditures and the risk of than manage these tasks themselves. 28. As explained in more detail in the owning its own resources, to carry out Enron gradually developed these Staff Final Report and the Gaming its various Gaming Practices. Enron relationships by expanding its services Practices Show Cause Order, the ISO focused not only on partnerships and in an attempt to effectively control the operates much of the transmission grid alliances with investor-owned utilities, assets of others. Enron’s compensation in California and is responsible for real- but also on smaller utilities, such as for these ‘‘services’’ usually started with time operations, such as continually public utility districts, municipalities, a fee structure (e.g., a charge/MWh for balancing generation and load and and qualifying facilities.49 Enron, using scheduling energy with the PX). managing congestion on the these Partnerships with others, gained However, as the original relationship transmission system it controls. The PX market share, acquired commercially grew into a more comprehensive was created primarily to operate two sensitive data, acquired decisionmaking partnership, alliance or other markets in which energy was traded on authority, and promoted reciprocal arrangement, the compensation an hourly basis. These were the day- dealings and equity sharing of profits, typically changed to an equity basis ahead and day-of markets. These among other things, as explained below. (share of profits) when the marketing of Enron formed these Partnerships markets established a single clearing wholesale power was involved. An without filing the agreements with the price for each hour across the entire ISO Enron Services Handbook explains that, Commission or notifying the in most instances, profits from control area, provided there were no Commission as required under its transmission constraints. Where marketing energy were split on a 50/50 market-based rate authorizations.50 basis while profits from capacity sales transmission congestion existed, a 32. A company’s business strategy is for ancillary services were split 25/75, separate clearing price was established devised by top management. In Enron’s with 25 percent going to Enron and 75 for each transmission constrained area case, the business model is described in percent to its partner. or zone in California. Each zonal broad-brush terms in Enron documents 34. The Staff Final Report cites a clearing price was based on adjustment as ‘‘Skilling’s ‘Enron Network’ story.’’ presentation at an Energy West Power bids submitted by sellers and buyers. Business Review Meeting that 48 The adjustment bids represented the The Staff Final Report (ch. VI at 37–44) characterizes this business strategy value to an entity of increasing or discusses evidence of various practices engaged in by Enron in concert with other market participants. bluntly, under a section entitled decreasing (i.e., adjusting) its use of the This evidence demonstrates how Enron and the ‘‘Gaining Control of Assets.’’ The system. In essence, this is a redispatch other named market participants appear to have presentation states: of the system to deal with congestion.46 used their partnerships, alliances or other arrangements to engage in various gaming practices. Currently pursuing two strategies. The 29. The ISO operates a variety of The show cause proceeding ordered herein will first is gaining control of a variety of markets in order to procure the address whether Enron and the other named market small resources or capabilities around resources necessary to reliably operate participants used their partnerships, alliances or the west. For example, the combination other arrangements to engage in the Gaming the transmission system, including a Practices for which the Commission seeks of El Paso Electric, Las Vegas Cogen, day-ahead market and an hour-ahead appropriate remedies in the Gaming Practices Show Valley Electric, and Glendale joint market for relieving transmission Cause Order, but here involving such conduct by venture provide us with a useful mix of market participants acting in concert with other loads and resources in the southwest. congestion and an energy market to market participants. continuously balance the system’s 49 The other market participants allegedly These transactions require relatively energy needs in real time. The latter, involved in Partnership Gaming with Enron are: little capital, but will require automated real-time market is the final energy City of Glendale, California (Glendale); City of IT links to customers and more people Redding, California (Redding); Colorado River in the logistics group. [Citation omitted.] market to clear chronologically, after all Commission; Las Vegas Cogeneration, L.P. (Las other markets in the region clear. Vegas Cogeneration); Modesto Irrigation District 35. Essentially, Enron developed Bilateral spot markets at trading hubs (Modesto); Montana Power Company (now d/b/a initial business relationships with outside California generally operated in NorthWestern Energy, LLC) (Montana Power); entities, which over time evolved into Northern California Power Agency (NCPA); partnerships, alliances and other the time period between the close of the Powerex Corporation (f/k/a British Columbia Power PX market and the ISO real-time Exchange Corporation) (Powerex); Public Service arrangements in which Enron could market.47 Company of New Mexico (PSNM); and Valley gain control of decisionmaking in a way Electric Association, Inc. (Valley Electric). that maximized profits for itself and its 50 See Enron Power Marketing, Inc., et al., 103 business partners. The Staff Final 46 For a more detailed description of the day- FERC ¶ 61,343 (2003) (Enron); see also 16 U.S.C. ahead auction process, see the Staff Final Report, § 824d (2000); Enron Power Marketing, Inc., 65 Report cites the summary of the Energy ch. VI at 5. FERC ¶ 61,305 at 62,405 (1993); Enron Energy West Power Business Review Meeting, 47 Id. at 5–6. Services, Inc., 81 FERC ¶ 61,267 at 62,319 (1997). which states:
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(1) Currently provide scheduling used for its own trading and marketing appropriate, additional non-monetary services to El Paso Electric, Glendale, activities. For example, its strategy remedies may be appropriate. CFE (Mexico), Tosco, Washington Water allowed ‘‘Enron to know as much or Accordingly, we institute a show cause Power, and Enron Energy Services. more about the customer’s near term proceeding with respect to the alleged (2) Use scheduling as a platform that position.’’ Finally, under this strategy, Partnership Gaming involving Enron, as will dovetail with click trade and that Enron planned to: discussed below. will lead to larger transactions that will Store operational data that the make more money (e.g., joint venture customer’s merchant group would not 2. Other Alleged Partnership Gaming with the City of Glendale). [Footnote normally be storing. Provide service 43. The Staff Final Report states that omitted.] around analysis and manipulation of other entities appear to have engaged in 36. In this regard, the Handbook data. [Enron North America] would own promotional activities similar to Enron contains a list of California market the data—a potential to lock customers in an attempt to form strategic alliances. conditions with instructions for Enron in—if they leave [Enron North America] For example, according to the Staff employees concerning whom to call and their data stays here. Final Report, Sempra Energy Trading what steps the partner should follow in 39. The Staff Final Report states that Corporation (Sempra) and PSNM may order to take advantage of a particular the evidence indicates that Enron, on its have competed with Enron in an market situation. For example, if prices own, could not have implemented all of attempt to perform similar services for in the California market are high, the its Gaming Practices; it was only with El Paso Electric Company. The Staff Enron employee would refer to the the cooperation of others that these Final Report further states, and the handbook section entitled ‘‘Who do you strategies could have been executed. We California Parties argue, that other call and what action to take?’’ The agree. It appears that Enron used these evidence indicates that various entities Enron employee first decides if the price partnerships and alliances to employ appear to have had agreements with is high enough to be profitable to the Gaming Practices in violation of the ISO other market participants that had ‘‘customer.’’ If it is profitable, the Enron and PX tariffs. At Enron’s direction, employee would: ‘‘generate or import other entities both inside and outside similar attributes as the Enron and fake, or increase, load.’’ In this California made business decisions that partnership, alliance and other situation, the Enron employee could capitalized on market conditions in an arrangements discussed above (e.g., call, for example, Glendale or Valley effort to maximize profits from their coordinating activities). These apparent Electric and instruct them to increase assets on a coordinated basis, and partnerships, alliances or other imports into the California ISO control changed market outcomes. Market arrangements are alleged to be between: area; the Handbook lists the problems and dysfunctions, in short, (1) Sempra and Eugene Water and transmission paths to be used. Or the were considered opportunities. Electricity Board (EWEB), Coral Power, Enron employee could call, for example, 40. Further, as discussed in an order LLC (Coral), or PSNM; (2) Coral and Redding and instruct it to increase being issued concurrently with this Glendale; and (3) PSNM and Aquila, generation in northern California to order, Timothy N. Belden and Jeffrey S. Inc. (Aquila), Constellation Power implement this strategy. The pricing Richter, former Enron executives, signed Source, Inc. (Constellation), El Paso structure for this strategy specifies an plea agreements in which they state that Merchant Energy, L.P. (El Paso even 50/50 split of profits between they engaged in fraudulent schemes in Merchant), Enron, Idaho Power Enron and its partner. In another the California markets in order to obtain Company (Idaho Power), Koch Energy example, the Handbook alerts the Enron increased revenue from wholesale Trading, Inc. (Koch), MIECO, Morgan employee to check to see if there are electricity customers and other market Stanley Capital Group (Morgan Stanley), high ancillary service prices. In that participants in California.52 PECO, PacifiCorp, Poweerex, Sempra or situation, the Enron employee should 41. In sum, it appears that Enron TransAlta Energy Marketing (U.S.) Inc. ‘‘call Glendale, Puget and El Paso systematically acted in partnership or and TransAlta Energy Marketing 53 Electric to try to get ancillary services otherwise in alliance with others, (California) Inc. (TransAlta). bids in’’ and ‘‘call customers and have without the Commission’s knowledge, 44. Based on the analysis provided in them ‘bid in’ more.’’ to game the market. The collective the Staff Final Report and the evidence 37. The Handbook also includes a list behavior of these entities turned defects described in the Staff Final Report, we of steps to take if the prices in California in market rules and market structures find that these entities, through are low. In this situation, the into profit-making opportunities for partnership, alliance or other instructions call for the opposite Enron and its partners. arrangements like those described above strategy: ‘‘artificially reduce load and 42. Based on the analysis provided in appear to have jointly engaged in market export.’’ The same counterparties are the Staff Final Report and the evidence manipulation schemes that had listed with corresponding delivery described in the Staff Final Report, we profound adverse impacts on market points for exporting their resources out find that Enron and the other entities outcomes, and that violated the ISO and of California. A similar pricing structure with whom it had partnership, alliance PX tariffs for which the monetary is also listed. Other Enron documents or other arrangements like those remedy of disgorgement of unjust profits describe arrangements that go beyond described above appear to have jointly and other appropriate, additional non- joint coordinated activity and describe engaged in market manipulation monetary remedies may be appropriate. total Enron control of decisionmaking schemes that had profound adverse Accordingly, we institute a show cause authority.51 impacts on market outcomes, and that proceeding with respect to the alleged 38. As its relationship with a violated the ISO and PX tariffs for Partnership Gaming, as discussed customer grew, Enron also collected which the monetary remedy of below. data from the customer, which it then disgorgement of unjust profits and other 53 See Staff Final Report, ch. VI at 44. See also 51 The Staff Final Report notes that, in an August 52 See Enron, 103 FERC ¶ 61,343 at P 54 (2003) (Exh. No. CA–1) (100 Days Testimony of California 22, 2000 West Mid-Market Quarterly Business (citing U.S. v. Timothy N. Belden, (N.D. Cal. Case Parties’ witness Dr. Fox-Penner), citing Exh. No. Review, Enron states that it ‘‘touched/managed No. CR02–0313–MJJ); U.S. v. Jeffrey S. Richter, CA–187, regarding California Parties’ allegations of 3,500 MW/day.’’ Staff Final Report, ch. VI at 41. (N.D. Cal. Case No. CR03–0026–MJJ). partnership gaming involving PSNM.
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E. Show Cause Order and Institution of Entity’s code of conduct if the ALJ finds (C) Any interested person desiring to Trial-Type Evidentiary Proceeding such remedies appropriate.56 be heard in these proceedings should 49. Given the commonality of issues file a notice of intervention or motion to 45. As described above, we find that of law and fact presented herein, we intervene with the Federal Energy the Partnership Entities identified consolidate Docket Nos. EL03–180–000, Regulatory Commission, 888 First above, through their partnerships, EL03–181–000, EL03–182–000, EL03– Street, NE., Washington, DC 20426, in alliances or other arrangements, may 183–000, EL03–184–000, EL03–185– accordance with Rule 214 of the have engaged in Gaming Practices as 000, EL03–186–000, EL03–187–000, Commission’s Rules of Practice and identified in the Gaming Practices Show EL03–188–000, EL03–189–000, EL03– Procedure (18 CFR § 385.214), within 21 Cause Order, that violated the ISO’s and 190–000, EL03–191–000, EL03–192– days of the date of this order. PX’s filed tariffs. 000, EL03–193–000, EL03–194–000, (D) An administrative law judge, to be 46. Accordingly, we require these EL03–195–000, EL03–196–000, EL03– designated by the Chief Administrative entities to show cause, in a trial-type 197–000, EL03–198–000, EL03–199– Law Judge, shall convene a prehearing evidentiary proceeding to be held before 000, EL03–200–000, EL03–201–000, conference in this proceeding to be held an ALJ, why they should not be found EL03–202–000 and EL03–203–000, for within approximately fifteen (15) days to have engaged in Gaming Practices in purposes of hearing and decision. of the filing of the show cause violation of the ISO’s and PX’s tariffs.54 The Commission Orders: submissions ordered in Ordering They shall submit their show cause (A) The Partnership Entities are Paragraph (A) above, in a hearing room responses within 30 days of the date of hereby directed to submit show cause of the Federal Energy Regulatory this order. responses within 30 days of the date of this order, as discussed in the body of Commission, 888 First Street, NE., 47. We also require the Partnership this order. Washington, DC 20426. Such conference Entities to (1) inventory all revenues (B) Pursuant to the authority shall be held for the purpose of from their partnerships, alliances or contained in and subject to the establishing a procedural schedule. The other arrangements discussed above and jurisdiction conferred upon the Federal presiding judge is authorized to (2) file these revenue figures as well as Energy Regulatory Commission by establish procedural dates and to rule file all related correspondence, e-mail, section 402(a) of the Department of on all motions (except motions to memoranda, tapes, phone logs, Energy Organization Act and the dismiss), as provided in the transaction data, billing statements and Federal Power Act, and pursuant to the Commission’s Rules of Practice and agreements as part of their show cause Commission’s Rules of Practice and Procedure. responses. This requirement applies to Procedure and the regulations under the both sides of an agreement regardless of (E) Docket Nos. EL03–180–000, EL03– Federal Power Act (18 CFR Chapter I), 181–000, EL03–182–000, EL03–183– whether the entity is supplying or a public hearing shall be held in Docket receiving service. If a Partnership Entity 000, EL03–184–000, EL03–185–000, Nos. EL03–180–000, EL03–181–000, EL03–186–000, EL03–187–000, EL03– does not provide this information and it EL03–182–000, EL03–183–000, EL03– is later discovered that such agreements 188–000, EL03–189–000, EL03–190– 184–000, EL03–185–000, EL03–186– 000, EL03–191–000, EL03–192–000, exist, that may be grounds for other 000, EL03–187–000, EL03–188–000, possible remedies. EL03–193–000, EL03–194–000, EL03– EL03–189–000, EL03–190–000, EL03– 195–000, EL03–196–000, EL03–197– 48. In addition, we direct the ALJ to 191–000, EL03–192–000, EL03–193– 000, EL03–198–000, EL03–199–000, hear evidence and render findings and 000, EL03–194–000, EL03–195–000, EL03–200–000, EL03–201–000, EL03– conclusions quantifying the full extent EL03–196–000, EL03–197–000, EL03– 202–000 and EL03–203–000 are hereby to which the entities named herein may 198–000, EL03–199–000, EL03–200– consolidated for purposes of hearing have been unjustly enriched as a result 000, EL03–201–000, EL03–202–000 and and decision. of their conduct,55 and the ALJ may EL03–203–000: (1) Where the recommend the monetary remedy of Partnership Entities shall show cause (F) The Secretary is hereby directed to disgorgement of unjust profits and any why they should not be found to have publish a copy of this order in the other additional, appropriate non- jointly engaged in the above-described Federal Register. monetary remedies. For example, the Gaming Practices in violation of the By the Commission. Commissioner Massey ALJ may consider non-monetary ISO’s and PX’s tariffs; and (2) where the dissented in part with a separate statement remedies such as revocation of a appropriate remedies may be identified attached Partnership Entity’s market-based rate and quantified, as discussed in the body Magalie R. Salas, authority and revisions to a Partnership of this order. Secretary.
DEPARTMENT OF ENERGY, FEDERAL ENERGY REGULATORY COMMISSION
Docket No.
Enron Power Marketing, Inc. and Enron Energy Services Inc ...... EL03–180–000 Aquila, Inc ...... EL03–181–000 City of Glendale, California ...... EL03–182–000 City of Redding, California ...... EL03–183–000
54 We incorporate the Staff Final Report and the sellers during the western power crisis of 2000 and placed on the Partnership Entities. However, the underlying record in Docket No. PA02–2–000 by 2001). ultimate burden is upon the Commission. To that reference into the record in this proceeding. As discussed in the Staff Final Report and in the end, the Commission is aware that many parties in 55 We will permit the parties to introduce relevant body of this order, there is evidence of gaming and/ California and elsewhere in the West have sought evidence from the 100 Days Evidence proceeding. or anomalous market behavior sufficient to require a forum in which to address the issues raised in this See San Diego Gas & Electric Co., 101 FERC the Partnership Entities to show cause why they proceeding. Those parties may participate in this ¶ 61,186 (2002) (allowing California parties 100 should not be found to have employed Gaming proceeding upon requesting and being granted days, concluding February 28, 2003, to conduct Practices in violation of the ISO’s and PX’s tariffs. intervenor status. discovery into market manipulation by various As a result, the burden of going forward will be 56 See supra P 1.
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DEPARTMENT OF ENERGY, FEDERAL ENERGY REGULATORY COMMISSION—Continued
Docket No.
Colorado River Commission ...... EL03–184–000 Constellation Power Source, Inc ...... EL03–185–000 Coral Power, LLC ...... EL03–186–000 El Paso Merchant Energy, L.P ...... EL03–187–000 Eugene Water and Electricity Board ...... EL03–188–000 Idaho Power Company ...... EL03–189–000 Koch Energy Trading, Inc ...... EL03–190–000 Las Vegas Cogeneration, L.P ...... EL03–191–000 MIECO ...... EL03–192–000 Modesto Irrigation District ...... EL03–193–000 Montana Power Company ...... EL03–194–000 Morgan Stanley Capital Group ...... EL03–195–000 Northern California Power Agency ...... EL03–196–000 PacifiCorp ...... EL03–197–000 PECO ...... EL03–198–000 Powerex Corporation (f/k/a British Columbia Power Exchange Corporation) ...... EL03–199–000 Public Service Company of New Mexico ...... EL03–200–000 Sempra Energy Trading Corporation ...... EL03–201–000 TransAlta Energy Marketing (U.S. Inc. and TransAlta Energy Marketing (California), Inc ...... EL03–202–000 Valley Electric Association, Inc ...... EL03–203–000 (Consolidated)
(Issued June 25, 2003) I disagreed with the rationale at that time, proceedings, on all of Equitrans’ MASSEY, Commissioner, dissenting in part: and I still do not believe the Commission has existing customers and upon the Today the Commission takes another step this authority. Pennsylvania Office of Consumer toward addressing the market manipulation For these reasons, I dissent in part from today’s order. Advocate, Pennsylvania Public Utility that contributed to the extraordinary Western Commission and the West Virginia power crisis. I support this show cause order, William L. Massey, and applaud the Commission for dealing Commissioner. Public Service Commission. with these issues. I write separately to [FR Doc. 03–16822 Filed 7–2–03; 8:45 am] Any person desiring to protest said express my disagreement with two aspects of BILLING CODE 6717–01–P filing should file a protest with the the order. Federal Energy Regulatory Commission, First, I would not limit the monetary 888 First Street, NE., Washington, DC penalty for tariff violations to disgorgement DEPARTMENT OF ENERGY of unjust profits. Market manipulation can 20426, in accordance with § 385.211 of the Commission’s Rules and raise the single market clearing price paid by Federal Energy Regulatory all market participants and collected by all Regulations. All such protests must be Commission sellers. The Federal Power Act requires that filed in accordance with § 154.210 of the all rates and charges be just and reasonable. [Docket No. RP02–499–003] Commission’s Regulations. Protests will Where the market has been manipulated so be considered by the Commission in as to affect the market clearing price, that Equitrans, L.P.; Notice of Compliance determining the appropriate action to be price is not just and reasonable and is Filing therefore unlawful. Simply requiring that bad taken, but will not serve to make actors disgorge their individual profits does June 26, 2003. protestants parties to the proceedings. not make the market whole because all Take notice that on June 20, 2003, This filing is available for review at the sellers received the unlawful price caused by Equitrans, L.P. (Equitrans) tendered for Commission in the Public Reference the manipulation. The narrow remedy of Room or may be viewed on the profit disgorgement is not an adequate filing as part of its FERC Gas Tariff, remedy for the adverse effect of the bad Original Volume No. 1, the following Commission’s Web site at http:// behavior on the market price, and may not tariff sheets to become effective on www.ferc.gov using the ‘‘FERRIS’’ link. be an adequate deterrent to future behavior. October 1, 2002: Enter the docket number excluding the The appropriate remedy may be that the last three digits in the docket number First Revised Sheet No. 226 manipulating seller makes the market field to access the document. For whole.1 Unfortunately, today’s order appears First Revised Sheet No. 227 First Revised Sheet No. 228 assistance, please contact FERC Online to take this remedy off of the table. I would Support at prefer to wait to see the extent of harm that Second Revised Sheet No. 229 specific behaviors caused before addressing Second Revised Sheet No. 275 [email protected] or toll- the remedy issue. Substitute Second Revised Sheet No. 276 free at (866) 208–3676, or TTY, contact Second, I would not apply the show cause Substitute Original Sheet No. 276A (202) 502–8659. The Commission order to non-public utilities that are Substitute Original Sheet No. 276B strongly encourages electronic filings. Substitute Original Sheet No. 276C otherwise not jurisdictional. Today’s order See 18 CFR 385.2001(a)(1)(iii) and the uses the same rationale for doing so as was Substitute Original Sheet No. 276D Second Substitute Fourth Revised Sheet No. instructions on the Commission’s Web used to extend a refund obligation to non- site under the ‘‘e-Filing’’ link. public utilities in our July 25, 2001 Order.2 308 Equitrans states that the foregoing Protest Date: July 7, 2003. 1 The Commission has accepted the make the tariff sheets are being filed to comply Magalie R. Salas, market whole remedy as part of a settlement for with the Commission’s Letter Order, withholding generation from the California PX Secretary. market. See 102 FERC ¶ 61,108 (2003). issued herein on April 23, 2003. [FR Doc. 03–16751 Filed 7–2–03; 8:45 am] 2 San Diego Gas & Electric Company et al., 96 Equitrans further states that its filing FERC ¶ 61,120 (2001). is being served on all parties to these BILLING CODE 6717–01–P
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DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY to John Griffin, Senior Counsel, Southern Natural Gas Company, P.O. Federal Energy Regulatory Federal Energy Regulatory Box 2563, Birmingham, Alabama Commission Commission 35202–2563 or call 205–325–7133. [Docket Nos. RP00–343–006 and RP00–629– [Docket No. CP03–327–000] Any person or the Commission’s staff 002] may, within 45 day after issuance of the Southern Natural Gas Company; instant notice by the Commission, file Kinder Morgan Interstate Gas Notice of Request Under Blanket pursuant to Rule 214 of the Transmission LLC; Notice of Authorization Commission’s Procedural Rules (18 CFR Compliance Filing 385.214) a motion to intervene or notice June 27, 2003. of intervention and pursuant to section June 26, 2003. Take notice that on June 20, 2003, 157.205 of the Regulations under the Take notice that on June 20, 2003, Southern Natural Gas Company NGA (18 CFR 157.205), a protest to the Kinder Morgan Interstate Gas (Southern), P.O. Box 2563, Birmingham, request. If no protest is filed within the Transmission LLC (KMIGT) tendered for Alabama, filed a request pursuant to time allowed therefor, the proposed filing as part of its FERC Gas Tariff, the Sections 157.205, 157.208(b)(2) and activity shall be deemed to be revised tariff sheets listed in 157.211(a)(2) of the Federal Energy authorized effective the day after the Appendices A–1 and A–2, to the filing. Regulatory Commission*s (Commission) time allowed for filing a protest. If a An effective date of June 1, 2003 is Regulations under the Natural Gas Act protest is filed and not withdrawn requested for the tariff sheets listed in (NGA), as amended, and blanket within 30 days after the time allowed Appendix A–1, and an effective date of certificate authority granted September for filing a protest, the instant request June 1, 2003 for the tariff sheets in 1, 1982, in Docket No. CP82–406–000, shall be treated as an application for Appendix A–2. 20 FERC ¶ 62,414 for authorization to authorization pursuant to Section 7 of KMIGT states that it is filing the construct and operate a new delivery the NGA. Comments, protests and above-referenced tariff sheets in point to Tamko Roofing Products, Inc. interventions may be filed electronically compliance with the Commission’s (Tamko) in Tuscaloosa County, via the Internet in lieu of paper; see 18 Order No. 637 and with the Alabama, all as more fully set forth in CFR 385.2001(a)(1)(iii) and the Commission’s ‘‘Order on Rehearing and the request, which is on file with the instructions on the Commission’s Web Compliance Filing’’ dated May 22, 2003 Commission, and open for public site under the ‘‘e-Filing’’ link. The in Docket No. RP00–343. inspection. This filing is available for KMIGT states that a copy of this filing review at the Commission or may be Commission strongly encourages has been served upon all parties on the viewed on the Commission’s Web site at electronic filings. official service list for this proceeding. http://www.ferc.gov, using the Magalie R. Salas, Any person desiring to protest said ‘‘FERRIS’’ link. Enter the docket number Secretary. filing should file a protest with the excluding the last three digits in the [FR Doc. 03–16852 Filed 7–2–03; 8:45 am] Federal Energy Regulatory Commission, docket number field to access the BILLING CODE 6717–01–P 888 First Street, NE., Washington, DC document. For assistance, please contact 20426, in accordance with § 385.211 of FERC Online Support at the Commission’s Rules and [email protected] or toll- DEPARTMENT OF ENERGY Regulations. All such protests must be free at (866) 208–3676 or for TTY, filed in accordance with § 154.210 of the contact (202) 502–8659. Federal Energy Regulatory Commission’s Regulations. Protests will Southern proposes to construct and Commission be considered by the Commission in operate certain measurement and other determining the appropriate action to be appurtenant facilities to provide up to Sunflower Electric Power Corporation, taken, but will not serve to make 1,800 Mcf/day of transportation service Xcel Energy Inc.; Notice of Alternative protestants parties to the proceedings. for Tamko, under Southern’s Rate Dispute Resolution Meeting This filing is available for review at the Schedule IT. Service to the Tamko Plant June 26, 2003. Commission in the Public Reference will be provided at a new delivery point Room or may be viewed on the to be located at approximately Mile Post The Commission’s Dispute Resolution Commission’s Web site at http:// 20.625 on Southern’s 12-inch Service has been asked to mediate an www.ferc.gov using the ‘‘FERRIS’’ link. Montgomery-Columbus Line in informal Alternative Dispute Resolution Enter the docket number excluding the Tuscaloosa County, Alabama. Southern (ADR) meeting on Monday, July 14 and last three digits in the docket number and Tamko have complied with all of Tuesday, July 15, 2003, to discuss field to access the document. For the requirements under Section 36 of Sunflower Electric Power Corporation’s assistance, please contact FERC Online the General Terms and Conditions of (Sunflower) proposal to Xcel Energy Inc. Support at Southern’s FERC Gas Tariff, 7th Revised (Xcel) to relocate a High Voltage Direct [email protected] or toll- Volume No. 1 for the installation of the Current converter station in connection free at (866) 208–3676, or TTY, contact direct delivery connection by Southern. with Xcel’s construction of a DC tie line. (202) 502–8659. The Commission Tamko will reimburse Southern for the Current plans call for construction of strongly encourages electronic filings. estimated $235,100 cost of constructing the converter station at Lamar, See 18 CFR 385.2001(a)(1)(iii) and the and installing the proposed facilities Colorado, but both Sunflower and Xcel instructions on the Commission’s Web pursuant to an executed Construction recently have been discussing and site under the ‘‘e-Filing’’ link. and Reimbursement Agreement dated negotiating the possibility of locating Protest Date: July 2, 2003. May 30, 2003. the converter station near Holcomb, Southern states that the installation of Kansas. Sunflower and Xcel have agreed Magalie R. Salas, the proposed facilities will have no to participate in the meeting. The Secretary. adverse effect on its ability to provide purpose of this notice is to invite others [FR Doc. 03–16749 Filed 7–2–03; 8:45 am] its firm deliveries. Any questions who have a significant interest in this BILLING CODE 6717–01–P regarding this filing should be directed matter to also attend.
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The meeting will begin at 10:00 a.m. file with the Commission and open to the instant notice by the Commission, on Monday, July 14, and will be held in public inspection. This filing is file pursuant to Rule 214 of the the law offices of Ballard, Spahr, available for review at the Commission Commission’s Procedural Rules (18 CFR Andrews & Ingersoll, LLP, at Suite 2300, or may be viewed on the Commission’s 385.214) a motion to intervene or notice 1225 17th Street, Denver, Colorado, Web site at http://www.ferc.gov using of intervention and pursuant to section 80202 . Please plan for the meeting to the ‘‘FERRIS’’ link. Enter the docket 157.205 of the regulations under the flow over, as necessary, into Tuesday, number excluding the last three digits in NGA (18 CFR 157.205), a protest to the July 15, 2003. the docket number field to access the request. If no protest is filed within the Steven A. Rothman, a mediator with document. For assistance, please contact time allowed therefor, the proposed the Commission’s Dispute Resolution FERC Online Support at activity shall be deemed to be Service, will chair the meeting. He will [email protected] or toll- authorized effective the day after the be joined by Darrell Blakeway, a free at (866) 208–3676, or for TTY, time allowed for filing a protest. If a member of the Commission’s Office of contact (202) 502–8659. protest is filed and not withdrawn Markets and Investigations staff, as a co- Tennessee proposes to increase the within 30 days after the allowed time mediator. Mr. Rothman and Mr. MAOP of its West Calaboose lateral for filing a protest, the instant request Blakeway are available to communicate (Line 4A–100) from 704 to 750 psig and shall be treated as an application for in private with any interested person of its Calaboose-Portilla (Line 4A–200) authorization pursuant to section 7 of prior to the meeting. Questions about lateral from 721 to 750 psig to facilitate the NGA. the meeting may be referred to Mr. receipts of natural gas. Tennessee states Comments, protests and interventions Rothman at (202) 502–8643— that Lines 4A–100 and 4A–200 are may be filed electronically via the [email protected]., or Mr. supply laterals connected to Internet in lieu of paper. See 18 CFR Blakeway at (202) 502–8437— Tennessee’s parallel mainlines 385.2001(a)(1)(iii) and the instructions [email protected]. Please let designated as Line No. 100–1 and 100– on the Commission’s Web site under the Mr. Rothman or Mr. Blakeway know by 2. Tennessee further states that the ‘‘e-Filing’’ link. The Commission Thursday, July 10, 2003, if you plan to MAOP of its mainline is 750 psig, but strongly encourages electronic filings. attend the meeting. whenever the pressure on the mainline Parties may also communicate with exceeds 700 psig, producers on the Magalie R. Salas, Richard Miles, the Director of the laterals must be shut in to avoid Secretary. Commission’s Dispute Resolution pressure buildup that exceeds the 704 [FR Doc. 03–16744 Filed 7–2–03; 8:45 am] Service at 1 877 FERC ADR (337–2237) psig MAOP limits on the two laterals. BILLING CODE 6717–01–P or (202) 502–8702. Mr. Miles is also Tennessee states that it proposes these available at [email protected]. uprates so that it can consistently and reliably receive natural gas from the DEPARTMENT OF ENERGY Magalie R. Salas, affected producers located on these Secretary. lateral lines. Tennessee states that the Federal Energy Regulatory [FR Doc. 03–16746 Filed 7–2–03; 8:45 am] estimated cost of the project will be Commission BILLING CODE 6717–01–P approximately $167,840. [Docket No. EL03–205–000] Tennessee states that: (1) The proposed increases in MAOP for the two Watts United Power, Complainant, v. DEPARTMENT OF ENERGY laterals do not require the construction Idaho Power Company, Inc., of any new pipeline facilities and will Respondent; Notice of Complaint Federal Energy Regulatory involve minimal ground disturbance; (2) Commission the uprate testing will be performed June 27, 2003. Take notice that on June 26, 2003, [Docket No. CP03–321–000] using nitrogen gas, and therefore, Tennessee expects no adverse Watts United Power (Watts) tendered for Tennessee Gas Pipeline Corporation; environmental impact; (3) the testing filing with the Federal Energy Notice of Request Under Blanket will be performed in accordance with Regulatory Commission (Commission) a Authorization Department of Transportation standards complaint against Idaho Power contained in part 192 of Title 49; and (4) Company, Inc. (Idaho Power) pursuant June 26, 2003. all work will be performed within to the Commission’s Rule 218 (18 CFR Take notice that on June 17, 2003, Tennessee’s existing rights-of-way. All 385.218). Tennessee Gas Pipeline Corporation affected landowners will be notified of Watts alleges that Idaho Power (Tennessee), 9 East Greenway Plaza, the proposed procedure by first class violated the terms of its Open Access Houston, Texas 77046, filed in Docket mail in accordance with Section Transmission Tariff (OATT) by No. CP03–321–000 a request pursuant to 157.203(d) of the Commission’s overcharging for interconnection sections 157.205 and 157.208 of the Regulations (18 CFR 157.203). services and charging for Federal Energy Regulatory Any questions concerning this request interconnection related services that are Commission’s regulations (18 CFR may be directed to Jacques Hodges, not provided for in its tariffs. In sections 157.205 and 157.208) under the Attorney, Tennessee Gas Pipeline addition, Watts alleges that Idaho Power Natural Gas Act (NGA) for authorization Company, 9 East Greenway Plaza, violated its tariff by engaging in to uprate its West Calaboose and Houston, Texas 77046, at (832) 676– discriminatory treatment in an attempt Calaboose-Portilla laterals located in 5509 or fax (832) 676–2251 or Veronica to prevent Watts from actively San Patricio County, Texas, through an Hill, Certificates & Regulatory competing against Idaho Power in the increase in maximum allowable Compliance, Tennessee Gas Pipeline wholesale electric markets. operating pressure (MAOP), under Company, 9 East Greenway Plaza, Any person desiring to be heard or to Tennessee’s blanket certificate issued in Houston, Texas 77046, at (832) 676– protest this filing should file with the Docket No. CP82–413–000, pursuant to 3295 or fax (832) 676–2231. Federal Energy Regulatory Commission, section 7 of the NGA, all as more fully Any person or the Commission’s staff 888 First Street, NE., Washington, DC set forth in the application which is on may, within 45 days after issuance of 20426, in accordance with Rules 211
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and 214 of the Commission’s Rules of request for blanket approval under part DEPARTMENT OF ENERGY Practice and Procedure (18 CFR 385.211 34, subject to the following: and 385.214). Protests will be Any person desiring to be heard or to Federal Energy Regulatory considered by the Commission in protest the blanket approval of Commission determining the appropriate action to be issuances of securities or assumptions of taken, but will not serve to make liability by White Pine should file a [Docket No. RP99–381–010] protestants parties to the proceeding. motion to intervene or protest with the Any person wishing to become a party Wyoming Interstate Company, Ltd.; Federal Energy Regulatory Commission, must file a motion to intervene. The Notice of Compliance Filing answer to the complaint and all 888 First Street, NE., Washington, DC comments, interventions or protests 20426, in accordance with Rules 211 June 26, 2003. and 214 of the Commission’s Rules of must be filed on or before the comment Take notice that on June 20, 2003, date below. This filing is available for Practice and Procedure (18 CFR 385.211 and 385.214). Wyoming Interstate Company, Ltd. review at the Commission in the Public (WIC) tendered for filing as part of its Reference Room or may be viewed on MDBO Notice is hereby given that FERC Gas Tariff, Second Revised the Commission’s Web site at http:// the deadline for filing motions to Volume No. 2, the following tariff www.ferc.gov using the ‘‘FERRIS’’ link. intervene or protests, as set forth above, sheets, to become effective July 21, Enter the docket number excluding the is July 28, 2003. 2003: last three digits in the docket number Absent a request to be heard in field to access the document. For First Revised Sheet No. 4D assistance, please contact FERC Online opposition by the deadline above, White Second Revised Sheet No. 4E Support at Pine is authorized to issue securities Third Revised Sheet No. 57K [email protected] or toll- and assume obligations or liabilities as free at (866)208–3676, or for TTY, a guarantor, indorser, surety, or WIC states that these tariff sheets contact (202)502–8659. The answer to otherwise in respect of any security of remove rates for parties contesting the the complaint, comments, protests and another person; provided that such rate case settlement that are no longer interventions may be filed electronically issuance or assumption is for some applicable. via the Internet in lieu of paper; see 18 lawful object within the corporate Any person desiring to protest said CFR 385.2001(a)(1)(iii) and the purposes of White Pine, compatible filing should file a protest with the instructions on the Commission’s Web with the public interest, and is Federal Energy Regulatory Commission, site under the ‘‘e-Filing’’ link. The reasonably necessary or appropriate for 888 First Street, NE., Washington, DC Commission strongly encourages such purposes. 20426, in accordance with § 385.211 of electronic filings. The Commission reserves the right to the Commission’s Rules and Comment Date: July 7, 2003. require a further showing that neither Regulations. All such protests must be Magalie R. Salas, public nor private interests will be filed in accordance with Section Secretary. adversely affected by continued 154.210 of the Commission’s [FR Doc. 03–16853 Filed 7–2–03; 8:45 am] approval of White Pine’s issuances of Regulations. Protests will be considered BILLING CODE 6717–01–P securities or assumptions of liability. by the Commission in determining the Copies of the full text of the Order are appropriate action to be taken, but will available from the Commission’s Public not serve to make protestants parties to DEPARTMENT OF ENERGY Reference Branch, 888 First Street, NE., the proceedings. This filing is available Washington, DC 20426. The Order may for review at the Commission in the Federal Energy Regulatory Public Reference Room or may be Commission also be viewed on the Commission’s Web site at http://www.ferc.gov , using viewed on the Commission’s Web site at [Docket Nos. ER03–895–000 and ER03–895– the ‘‘FERRIS’’ link. Enter the docket http://www.ferc.gov using the ‘‘FERRIS’’ 001] number excluding the last three digits in link. Enter the docket number excluding the docket number filed to access the the last three digits in the docket White Pine Copper Refinery, Inc.; number field to access the document. Notice of Issuance of Order document. Comments, protests, and interventions may be filed electronically For assistance, please contact FERC June 27, 2003. via the internet in lieu of paper. See 18 Online Support at White Pine Copper Refinery, Inc. CFR 385.2001(a)(1)(iii) and the [email protected] or toll- (White Pine) filed an application for instructions on the Commission’s Web free at (866) 208–3676, or TTY, contact market-based rate authority, with an site under the ‘‘e-Filing’’ link. The (202) 502–8659. The Commission accompanying tariff. The proposed tariff Commission strongly encourages strongly encourages electronic filings. provides for wholesale sales of electric electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the power and energy at market-based rates. instructions on the Commission’s Web White Pine also requested waiver of Magalie R. Salas, site under the ‘‘e-Filing’’ link. various Commission regulations. In Secretary. Protest Date: July 2, 2003. particular, White Pine requested that the [FR Doc. 03–16855 Filed 7–2–03; 8:45 am] Commission grant blanket approval BILLING CODE 6717–01–P Magalie R. Salas, under 18 CFR part 34 of all future Secretary. issuances of securities and assumptions [FR Doc. 03–16752 Filed 7–2–03; 8:45 am] of liability by White Pine. On June 25, 2003, pursuant to BILLING CODE 6717–01–P delegated authority, the Director, Division of Tariffs and Market Development—South, granted the
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DEPARTMENT OF ENERGY Magalie Salas, Secretary, Federal must file your request to intervene as Energy Regulatory Commission, 888 specified above. You do not need Federal Energy Regulatory First St., NE., Room 1A, Washington, DC intervenor status to have your Commission 20426; comments considered. • [Docket No. CP02–90–001] Label one copy of the comments for The DEIS has been placed in the the attention of Gas Branch 3, PJ11.3; public files of the FERC and is available AES Ocean Express Pipeline Project; • Reference Docket No. CP02–90– for distribution and public inspection Notice of Availability of the Draft 001; and at: Federal Energy Regulatory • Environmental Impact Statement and Mail your comments so that they Commission, Public Reference and Files Announcement of a Public Comment will be received in Washington, DC on Maintenance Branch, 888 First Street, Meeting for the Proposed Ocean or before August 12, 2003. NE., Room 2A, Washington, DC 20426, Express Pipeline Project Please note that we are continuing to (202) 502–8371. experience delays in mail deliveries A limited number of copies are June 27, 2003. from the U.S. Postal Service. As a result, available from the Public Reference and The staff of the Federal Energy we will include all comments that we Files Maintenance Branch identified Regulatory Commission (FERC or receive within a reasonable time frame above. In addition, copies of the DEIS Commission) has prepared a Draft in our environmental analysis of this have been mailed to Federal, state and Environmental Impact Statement (DEIS) project. However, the Commission local agencies, public interest groups, on the natural gas pipeline facilities strongly encourages electronic filing of individuals who have requested the proposed by AES Ocean Express, L.L.C. any comments or interventions or DEIS, newspapers, and parties to this (Ocean Express) in the above-referenced protests to this proceeding. See 18 CFR proceeding. docket. 385.2001(a)(1)(iii) and the instructions Additional information about the The DEIS was prepared to satisfy the on the Commission’s Web site at http:/ project is available from the requirements of the National /www.ferc.gov under the ‘‘e-Filing’’ link Commission’s Office of External Affairs, Environmental Policy Act. The staff and the link to the User’s Guide. Before at 1–866–208–FERC or on the FERC concludes that approval of the proposed you can file comments, you will need to Internet Web site (http://www.ferc.gov) project with the appropriate mitigating create a free account which can be using the FERRIS link. Click on the measures as recommended, would have created by clicking on ‘‘Login to File’’ FERRIS link, enter the docket number limited adverse environmental impact. and then ‘‘New User Account.’’ excluding the last three digits in the The DEIS also evaluates alternatives to In addition to accepting written and Docket Number field. Be sure you have the proposal, including system electronically filed comments, one selected an appropriate date range. For alternatives, major route alternatives, public meeting to receive comments on assistance with FERRIS, the FERRIS and route variations, and requests this DEIS will be held at the following helpline can be reached at 1–866–208– comments on them. time and location. 3676, TTY (202) 502–8659 or at The DEIS addresses the potential Date [email protected]. The environmental effects of the FERRIS link on the FERC Internet Web construction and operation of Monday, July 28, 2003, 7 p.m.— site also provides access to the texts of approximately 54.4 miles of 24-inch Location formal documents issued by the diameter, interstate natural gas pipeline Commission, such as orders, notices, extending from a receipt point on the Hollywood Beach Culture & Community Center, 1301 S. Ocean Drive, and rulemakings. Exclusive Economic Zone boundary In addition, the Commission now between the United States and the Hollywood, Florida 33019, (954) 921– 3600 offers a free service called eSubscription Bahamas to delivery points in Broward which allows you too keep track of all County, Florida. In addition, associated Interested groups and individuals are formal issuances and submittals in ancillary facilities proposed to be encouraged to attend and present oral specific dockets. This can reduce the constructed include two meter stations, comments on the environmental amount of time you spend researching one below-ground valve, one impacts described in the DEIS. proceedings by automatically providing aboveground main pipeline shutoff Transcripts of the meetings will be you with notification of these filings, valve, and one pig launching/receiving prepared. document summaries and direct links to After these comments are reviewed, station. the documents. Go to http:// any significant new issues are The purpose of the Ocean Express www.ferc.gov/esubscribenow.htm. Pipeline Project is to transport 842,000 investigated, and modifications are dekatherms/day of natural gas on an made to the DEIS, a Final Magalie R. Salas, annual basis to new markets in Environmental Impact Statement (FEIS) Secretary. southeastern Florida. will be published and distributed by the [FR Doc. 03–16851 Filed 7–2–03; 8:45 am] staff. The FEIS will contain the staff’s BILLING CODE 6717–01–P Comment Procedures and Public responses to timely comments filed on Meeting the DEIS. Any person wishing to comment on Comments will be considered by the DEPARTMENT OF ENERGY the DEIS may do so. To ensure Commission but will not serve to make consideration prior to a Commission the commentor a party to the Federal Energy Regulatory decision on the proposal, it is important proceeding. Any person seeking to Commission that we receive your comments before become a party to the proceeding must [Project No. 3516–008] the date specified below. Please file a motion to intervene pursuant to carefully follow these instructions to Rule 214 of the Commission’s Rules of City of Hart, MI; Notice of Availability ensure that your comments are received Practice and Procedures (18 CFR in time and properly recorded: 385.214). June 27, 2003. • Send an original and two copies of Anyone may intervene in this In accordance with the National your comments to: proceeding based on this DEIS. You Environmental Policy Act of 1969 and
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the Federal Energy Regulatory based on the comments and information of 8-inch-diameter pipeline, three meter Commission’s (Commission) received during the scoping process a stations, and appurtenant facilities. The regulations, 18 CFR part 380 (Order No. decision was made to prepare an proposal would extend the 24-inch- 486, 52 FR 47879), the Office of Energy environmental impact statement (EIS) diameter Deer Island Lateral pipeline Projects has reviewed the application on the Everett Extension Project instead (approved on June 4, 2002, in Docket for license for the Hart Hydroelectric of an environmental assessment. In No. CP01–5–002, but unbuilt yet). The Project, located on the South Branch of addition, we 1 are requesting comments proposal would provide 110,000 the Pentwater River, in Oceana County, on additional facilities proposed by dekatherms per day of firm Michigan, and has prepared a Final Distrigas of Massachusetts LLC transportation service. Environmental Assessment (FEA) for (DOMAC). Algonquin requests final the project. There are no federal lands On May 22, 2003 DOMAC filed an authorization for the proposed facilities occupied by the project works or located application for a Certification of Public by December 15, 2003, and would within the project boundaries. Convenience and Necessity to construct construct its facilities in 2004 during the The FEA contains the staff’s analysis facilities in Suffolk County, summer and fall, so that it could place of the potential environmental effects of Massachusetts to deliver regasified the facilities in service by June 1, 2005. the project and concludes that licensing liquefied natural gas (LNG) to customers DOMAC would construct a new 300- the project, with appropriate through the Everett Extension Project. foot-long send-out line, odorant system, environmental measures, would not We will review both projects in the metering system, and reconfigure its constitute a major federal action that same EIS. This EIS will be used by the existing vaporization equipment. The would significantly affect the quality of Commission in its decision-making proposed facilities would be the human environment. process to determine whether the constructed within the existing A copy of the FEA is available for project is in the public convenience and boundaries of the LNG terminal. review at the Commission or may be necessity. DOMAC requests that the Commission viewed on the Commission’s Web site at The applications, and other issue a final certificate by December 1, http://www.ferc.gov , using the supplemental filings in these dockets 2003, in order to provide DOMAC with ‘‘FERRIS’’ link. Enter the docket number are available for viewing on the FERC an in-service date for the project in time excluding the last three digits in the Internet Web site (http://www.ferc.gov). to meet its contractual commitments to docket number field to access the Click on the ‘‘FERRIS’’ link, select Algonquin. The general locations of the project document. For assistance, contact FERC ‘‘General Search’’ from the FERRIS facilities are shown in Appendix 1.2 Online Support at menu, and follow the instructions, being [email protected] or toll- sure to input the correct docket numbers Land Requirements for Construction free at (866) 208–3676, or for TTY, [CP01–5–003 (Algonquin) and CP03– Construction of the Everett Extension contact (202) 502–8659. 305–000 (DOMAC)]. Project would temporarily disturb a For further information, contact Steve If you are a landowner receiving this total of about 72.7 acres of land. This Kartalia at 202–502–6131 or by E-mail at notice, you may be contacted by a includes about 22.9 acres offshore and [email protected]. pipeline company representative about 36.2 acres onshore for the pipeline the acquisition of an easement to Magalie R. Salas, construction right-of-way (ROW), and construct, operate, and maintain the 13.6 acres for extra workspace and Secretary. proposed facilities. The pipeline [FR Doc. 03–16856 Filed 7–2–03; 8:45 am] contractor staging areas. The total land company would seek to negotiate a requirements for the permanent ROW BILLING CODE 6717–01–P mutually acceptable agreement. would be about 14.1 acres, including 1.4 However, if the project is approved by acres of land for operation of the new the Commission, that approval conveys DEPARTMENT OF ENERGY aboveground facilities. The remaining with it the right of eminent domain and 58.6 acres of land affected by under certain circumstances the Federal Energy Regulatory construction would be restored and pipeline company could initiate Commission allowed to revert to its former use. condemnation proceedings in Approximately 3.9 miles of the [Docket Nos. CP01–5–003 and CP03–305– accordance with Massachusetts law. pipeline would be built onshore, and 000] A fact sheet prepared by the FERC 3.1 miles would be offshore. The entitled ‘‘An Interstate Natural Gas offshore construction would include Algonquin Gas Transmission Facility On My Land? What Do I Need Company, Distrigas of Massachusetts about 2.3 miles of horizontal directional To Know?’’ was attached to the project drilling, and about 0.8 miles of shallow LLC; Notice of Intent To Prepare an notice that Algonquin provided to Environmental Impact Statement for water dredging. The offshore landowners. disturbance would include about 8.7 the Proposed Everett Extension This fact sheet addresses a number of Project, and Request for Comments on acres for trench excavation and 14.2 typically asked questions, including the acres for temporarily storing the side- Environmental Issues for the Distrigas use of eminent domain and how to of Massachusetts LLC Application cast trench spoil. Algonquin states that participate in the Commission’s most (69 percent) of the proposed June 26, 2003. proceedings. It is available for viewing onshore route would not require A Notice of Intent to prepare and on the FERC Internet Web site (http:// environmental assessment was sent out www.ferc.gov). 2 The appendices referenced in this notice are not being printed in the Federal Register. Copies are on March 19, 2003 for the proposed Summary of the Proposed Projects available on the Commission’s Web site at the Algonquin Gas Transmission Company Algonquin would construct 6.64 miles ‘‘FERRIS’’ link or from the Commission’s Public (Algonquin) application for of 24-inch-diameter pipeline, 0.31 miles Reference and Files Maintenance Branch, 888 First authorization to construct and operate Street, NE., Washington, DC 20426, or call (202) 502–8371. For instructions on connecting to the Everett Extension Project in Suffolk 1 ‘‘We’’, ‘‘us’’, and ‘‘our’’ refer to the FERRIS refer to the last page of this notice. Copies County, Massachusetts. The purpose of environmental staff of the Office of Energy Projects of the appendices were sent to all those receiving this notice is to inform the public that (OEP). this notice in the mail.
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Algonquin to obtain a ROW easement, the Commission’s official service list for —Temporary disruption of local since 60 percent of the route would be this proceeding. A 45-day comment roadways and recreational trails located within existing roads or utility period will be allotted for review of the during construction; ROW, and 9 percent would be on EIS. We will consider all comments on —Potential effect of the project on property owned by proposed customers. the EIS and revise the document, as Logan Airport operations; Algonquin would typically use a 50-to necessary, before issuing a Final EIS. —Cumulative impacts and temporal loss 75-foot-wide construction ROW. The Final EIS will include our of habitat function from additive Temporary extra workspaces are often responses to comments received and effects of the proposed project with needed for waterbody, highway, and will be used by the Commission in its other projects, including natural gas railroad crossings; additional topsoil decision-making process to determine pipelines and other utilities, which storage; and pipe storage and equipment whether to approve the project. have been recently constructed or are yards. To ensure your comments are proposed to be built in the same DOMAC facilities would be considered, please carefully follow the region; constructed entirely within the existing instructions in the Public Participation —Public safety in the vicinity of the boundaries of the LNG Plant. section of this notice. proposed facilities. The EIS Process Currently Identified Environmental Public Participation The National Environmental Policy Issues You can make a difference by Act (NEPA) requires the Commission to The EIS will discuss impacts that providing us with your specific take into account the environmental could occur as a result of the comments or concerns about the project. impacts that could result from an action construction and operation of the By becoming a commentor, your whenever it considers the issuance of a proposed project. We have already concerns will be addressed in the EIS Certificate of Public Convenience and identified a number of issues that and considered by the Commission. You Necessity. NEPA also requires us to deserve attention based on a should focus on the potential discover and address concerns the preliminary review of the proposed environmental effects of the proposal, public may have about proposals. This facilities, the environmental information alternatives to the proposal (including is called ‘‘scoping’’. The main goal of provided by Algonquin, and early input alternative locations/routes), and the scoping process is to focus the from intervenors. measures to avoid or lessen analysis in the EIS on the important Some of these issues are listed below. environmental impact. The more environmental issues. We have already This list is preliminary and may be specific your comments, the more useful received comments on the scope of the changed based on your comments and they will be. Please carefully follow analysis of the Everett Extension Project. our analysis. these instructions to ensure that your By this Notice of Intent, the Commission comments are received in time and requests public comments on the scope —Effect of construction on groundwater properly recorded: or surface water supplies; of the issues it will address in the EIS —Send an original and two copies of —Potential failure of the horizontal related to the DOMAC proposed your letter to: Magalie R. Salas, directional drill segments, or application. All comments received are Secretary, Federal Energy inadvertent releases of drilling considered during the preparation of the Regulatory Commission, 888 First lubricant or hazardous materials EIS. State and local government St., NE., Room 1A, Washington, DC during the drilling activities; representatives are encouraged to notify 20426. their constituents of this proposed —Extent and effects of turbidity and —Label one copy of the comments for action and encourage them to comment sedimentation that may result from the attention of the Gas Branch 2. on their areas of concern. pipeline trenching or directional —Reference Docket Nos. CP01–5–003 The EIS will discuss impacts that drilling in shallow waters; and CP03–305–000. could occur as a result of the —Potential fuel spills from the pipelay —Mail your comments so that they will construction and operation of the barges and associated vessel traffic; be received in Washington, DC on proposed project under these general —Construction and operational effects or before July 28, 2003. headings: on marine and estuarine habitats that Please note that we are continuing to —water resources support commercial or recreational experience delays in mail deliveries —wetlands fisheries; from the U.S. Postal Service. As a result, —fisheries and essential fish habitat —Potential effects to wildlife and we will include all comments that we —vegetation and wildlife fisheries, including essential fish receive within a reasonable time frame —endangered and threatened species habitat and other fishery resource of in our environmental analysis of this —land use, recreation, and visual concern, and other biological project. However, the Commission resources resources of concern; strongly encourages electronic filing of —cultural resources —Potential effects on federally any comments or interventions or —socioeconomics endangered and threatened species protests to this proceeding. See 18 CFR —geologic and soil resources including the piping plover, northern 385.2001(a)(1)(iii) and the instructions —air and noise quality right whale, humpback whale, fin on the Commission’s Web site at —reliability and safety whale, loggerhead sea turtle, green sea http://www.ferc.gov under the ‘‘e- —system or route alternatives turtle, hawksbill sea turtle, Kemp’s Filing’’ link and the link to the User’s —cumulative impacts ridley sea turtle, and leatherback sea Guide. Before you can file comments Our independent analysis of the turtle; you will need to create a free account issues will be in the EIS. The —Potential effects to onshore and which can be created by clicking on EIS will be mailed to Federal, state, offshore submerged cultural ‘‘Login to File’’ and then ‘‘New User and local agencies, public interest resources; Account.’’ groups, interested individuals, affected —Noise generated as a result of pipeline If you do not want to send comments landowners, newspapers, libraries, and construction; at this time but still want to remain on
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our mailing list, please return the Commission, such as orders, notices, Street, NE., Washington, DC 20426. Information Request (Appendix 3). If and rulemakings. Comments, motions to intervene, you do not return the Information protests, and requests for cooperating Magalie R. Salas, Request, you will be taken off the agency status may be filed electronically mailing list. Secretary. via the Internet in lieu of paper. See 18 [FR Doc. 03–16743 Filed 7–2–03; 8:45 am] CFR 385.2001(a)(1)(iii) and the Becoming an Intervenor BILLING CODE 6717–01–P instructions on the Commission’s Web In addition to involvement in the EIS site (http://www.ferc.gov ) under the ‘‘e- scoping process, you may want to Filing’’ link. become an official party to the DEPARTMENT OF ENERGY The Commission’s Rules of Practice proceeding known as an ‘‘intervenor’’. and Procedure require all intervenors Federal Energy Regulatory Intervenors play a more formal role in filing documents with the Commission Commission the process. Among other things, to serve a copy of that document on intervenors have the right to receive Notice of Offer of Settlement, each person whose name appears on the copies of case-related Commission Application for Surrender of License, official service list for the project. documents and filings by other and Soliciting Comments, Motions To Further, if an intervenor files comments intervenors. Likewise, each intervenor Intervene, and Protests or documents with the Commission must provide 14 copies of its filings to relating to the merits of an issue that the Secretary of the Commission and June 26, 2003. may affect the responsibilities of a must send a copy of its filings to all Take notice that the following offer of particular resource agency, they must other parties on the Commission’s settlement and application for surrender also serve a copy of the document on service list for this proceeding. If you of license has been filed with the that resource agency. want to become an intervenor you must Commission and is available for public l. PacifiCorp filed an offer of file a motion to intervene according to inspection: settlement and an application to Rule 214 of the Commission’s Rules of a. Application Type: Offer of surrender its major license for the Practice and Procedure (18 CFR Settlement and Surrender of License 1. Powerdale Hydroelectric Project. 385.214) (see Appendix 2) 3. Only b. Project No.: P–2659–011 and –016. PacifiCorp filed the settlement on behalf intervenors have the right to seek c. Date Filed: June 16, 2003. of itself and the American Rivers, rehearing of the Commission’s decision. d. Applicant: PacifiCorp. Confederated Tribes of the Warm Affected landowners and parties with e. Name of Project: Powerdale Springs Reservation of Oregon, Hood environmental concerns may be granted Hydroelectric Project. River Watershed Group, National intervenor status upon showing good f. Location: On the Hood River, near Marine Fisheries Service, Oregon cause by stating that they have a clear the town of Hood River, in Hood River Department of Environmental Quality, and direct interest in this proceeding County, Oregon. The project boundary Oregon Department of Fish and which would not be adequately does not occupy any federal lands of the Wildlife, Oregon Water Resources represented by any other parties. You do United States. Department, and United States Fish and not need intervenor status to have your g. Filed Pursuant to: Rule 602 of the Wildlife Service. Under the terms of the environmental comments considered. Commission’s Rules of Practice and settlement and as proposed in the Procedure, 18 CFR 385.602 and Federal surrender application, PacifiCorp would Environmental Mailing List Power Act, 16 U.S.C. 791(a)–825(r). continue operation of the project This notice is being sent to h. Applicant Contact: David through April 2010, at which time they individuals, organizations, and Leonhardt, Project Manager, PacifiCorp would begin decommissioning the government entities interested in and/or 825 NE Multnomah, Suite 1500, project, with completion by February potentially affected by the proposed Portland, Oregon, 97232 (503) 813– 2012. Operations during the interim project. It is also being sent to all 6658. period (i.e., prior to decommissioning) identified potential ROW grantors. i. FERC Contact: Bob Easton (202) would include: (1) Implementing 502–6045, e-mail at ramping rates; (2) maintaining increased Additional Information [email protected]. minimum flows; (3) monitoring stream Additional information about the j. Cooperating agencies: We are asking temperatures; (4) reducing diversions to project is available from the federal, state, local, and tribal agencies approximately 25 cubic feet per second Commission’s Office of External Affairs, with jurisdiction and/or special from April 15 to June 30 each year; (5) at 1–866–208–FERC, or on the FERC expertise with respect to environmental restricting the times when the sand Internet Web site (http://www.ferc.gov) issues to cooperate with us in the settling basin would be flushed; and, (6) using the FERRIS link. Click on the preparation of the environmental various other reporting, maintenance, or FERRIS link, enter the docket number document. Agencies who would like to facility upgrade commitments. excluding the last three digits in the request cooperating status should follow Decommissioning the project would Docket Number field. Be sure you have the instructions for filing documents involve: (1) removal of the diversion selected an appropriate date range. For described in item k below. dam and associated structures; (2) assistance with FERRIS, the FERRIS k. Deadlines: Comments, motions to removal of sections of the water helpline can be reached at 1–866–208– intervene, and protests are due 30 days conveyance system; (3) removal of the 3676, TTY (202) 502–8659, or at from the issuance date of this notice. fish ladder and the sorting and FERCOnLineSupport@ferc,gov. The Reply comments are due 40 days from collection facility; and, (4) securing the FERRIS link on the FERC Internet Web the issuance date of this notice. project powerhouse which would be left site also provides access to the texts of All documents (original and eight in place. m. A copy of the application is on file formal documents issued by the copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy with the Commission and is available 3 Interventions may also be filed electronically via Regulatory Commission, 888 First for public inspection. This filing may the Internet in lieu of paper. See the previous also be viewed on the Web at http:// discussion on filing comments electronically. 1 See PacifiCorp, 97 FERC ¶ 61,348 (2001). www.ferc.gov using the ‘‘FERRIS’’ link—
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select ‘‘Docket #’’ and follow the DEPARTMENT OF ENERGY instructions on the Commission’s Web instructions. For assistance, contact site (http://www.ferc.gov) under the ‘‘e- FERC Online Support at Federal Energy Regulatory Filing’’ link. [email protected] or toll- Commission k. This application has been accepted free at 1–866–208–3676, or for TTY, for filing, but is not ready for Notice of Application Accepted for (202) 502–8659. A copy is also available environmental analysis at this time. Filing and Soliciting Motions To for inspection and reproduction at the l. Description of Project: The existing Intervene and Protests address in item h above. To facilitate the project consists of: (1) A 270-foot-long subject surrender, the Commission will June 26, 2003. concrete dam with spillway equipped incorporate into the record for this Take notice that the following with a 16.7-foot-high by 24-foot-wide proceeding, all documents filed with or hydroelectric application has been filed Taintor gate and a 16.7-foot-high by 16- issued by the Commission as part of the with the Commission and is available foot-wide Taintor gate; (2) a 126.5-foot- relicensing proceeding (P–2659–011). for public inspection. long concrete head-works structure; (3) a. Type of Application: New Major a 400-acre impoundment with a normal n. With this notice, we are initiating pool elevation of 829.8 feet National consultation with the State Historic License. b. Project No.: 2720–036. Geodetic Vertical Datum; (4) a 300-foot- Preservation Officer as required by long, 60-foot-wide power canal; (5) a § 106, National Historic Preservation c. Date filed: July 29, 2002. d. Applicant: City of Norway, powerhouse containing four generating Act, and the regulations of the Advisory Michigan. units with a total installed capacity of Council on Historic Preservation, 36 e. Name of Project: Sturgeon Falls 5,136 kilowatts; (6) a 300-foot-long, 7.2- CFR at § 800.4. Hydroelectric Project. kV transmission line; and (7) o. Individuals desiring to be included f. Location: On the Menominee River appurtenant facilities. on the Commission’s mailing list should in Dickinson County, Michigan and m. A copy of the application is so indicate by writing to the Secretary Marinette County, Wisconsin. The available for review at the Commission of the Commission. project does not utilize lands of the in the Public Reference Room or may be viewed on the Commission’s Web site at Anyone may submit comments, a United States. http://www.ferc.gov using the ‘‘FERRIS’’ protest, or a motion to intervene in g. Filed Pursuant to: Federal Power link. accordance with the requirements of Act 16 U.S.C. §§ 791(a)–825(r) Enter the docket number excluding Rules of Practice and Procedure, 18 CFR h. Applicant Contact: Ray Anderson, City Manager, City of Norway, City Hall, the last three digits in the docket 385.210, .211, .214. In determining the 915 Main Street, Norway, Michigan number field to access the document. appropriate action to take, the 49870, (906) 563–8015. For assistance, contact FERC Online Commission will consider all protests or i. FERC Contact: Patti Leppert (202) Support at other comments filed, but only those 502–6034, or [email protected]. [email protected] or toll- who file a motion to intervene in j. Deadline for filing motions to free at 1–866–208–3676, or for TTY, accordance with the Commission’s intervene and protests: 60 days from the (202) 502–8659. A copy is also available Rules may become a party to the issuance date of this notice. for inspection and reproduction at the proceeding. Any comments, protests, or All documents (original and eight address in item h above. motions to intervene must be received copies) should be filed with: Magalie R. n. Anyone may submit comments, a on or before the specified comment date Salas, Secretary, Federal Energy protest, or a motion to intervene in for the particular application. Regulatory Commission, 888 First accordance with the requirements of Any filings must bear in all capital Street, NE., Washington, DC 20426. Rules of Practice and Procedure, 18 CFR letters the title ‘‘COMMENTS,’’ Comments, protests and interventions 385.210, .211, .214. In determining the ‘‘PROTEST,’’ or ‘‘MOTION TO may be filed electronically via the appropriate action to take, the INTERVENE,’’ as applicable, and the Internet in lieu of paper; see 18 CFR Commission will consider all protests or Project Number of the particular 385.2001(a)(1)(iii) and the instructions other comments filed, but only those application to which the filing refers. A on the Commission’s Web site under the who file a motion to intervene in copy of any motion to intervene must ‘‘e-Filing’’ link. The Commission accordance with the Commission’s also be served upon each representative strongly encourages electronic filings. Rules may become a party to the of the Applicant specified in the The Commission’s Rules of Practice proceeding. Any comments, protests, or particular application. require all intervenors filing documents motions to intervene must be received with the Commission to serve a copy of on or before the specified comment date Federal, state, and local agencies are that document on each person on the for the particular application. invited to file comments on the official service list for the project. All filings must (1) bear in all capital described application. A copy of the Further, if an intervenor files comments letters the title ‘‘PROTEST’’ or application may be obtained by agencies or documents with the Commission ‘‘MOTION TO INTERVENE;’’ (2) set directly from the applicant. If an agency relating to the merits of an issue that forth in the heading the name of the does not file comments within the time may affect the responsibilities of a applicant and the project number of the specified for filing comments, it will be particular resource agency, they must application to which the filing presumed to have no comments. One also serve a copy of the document on responds; (3) furnish the name, address, copy of an agency’s comments must also that resource agency. and telephone number of the person be sent to the Applicant’s Motions to intervene and protests, protesting or intervening; and (4) representatives. comments, recommendations, terms and otherwise comply with the requirements conditions, and prescriptions may be of 18 CFR 385.2001 through 385.2005. Magalie R. Salas, filed electronically via the Internet in Agencies may obtain copies of the Secretary. lieu of paper. The Commission strongly application directly from the applicant. [FR Doc. 03–16747 Filed 7–2–03; 8:45 am] encourages electronic filings. See 18 A copy of any protest or motion to BILLING CODE 6717–01–P CFR 385.2001(a)(1)(iii) and the intervene must be served upon each
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representative of the applicant specified All interested persons are permitted Arizona, Montana, Wyoming, Colorado, in the particular application. to attend. To assist Staff, attendees are and New Mexico. This half-day o. Procedural schedule and final requested to e-mail conference will begin at 2 p.m. and amendments: The application should be [email protected]. stating your conclude at approximately 6 p.m., and processed according to the following name, the name of the entity you will be held at the Marriott Denver City Hydro Licensing Schedule. Revisions to represent, the names of the persons who Center, 1701 California Street, Denver, the schedule will be made as will be accompanying you, and a Colorado (1–800–228–9290). All appropriate. telephone number where you can be interested persons are invited to attend. reached. The conference will focus on the Issue Scoping Document 1 for Jul. 2003. Among the issues the Staff is adequacy of the electric, gas and comments. interested in exploring are: hydropower energy infrastructure in the Request Additional Information, Aug. 2003. A. How does bidding to take West. The FERC Commissioners will if necessary. advantage of small arbitrage attend, and the Governors, legislators, Issue Scoping Document 2, if Aug. 2003. state utility commissioners, tribal necessary. opportunities affect the markets Notice Ready for Environ- Sept. 2003. operated by PJM? What other benefits delegates of the western states, as well mental Analysis. and/or disadvantages might such as international representatives from Notice of the availability of the Jan. 2004. behavior cause customers? For example, Canada and Mexico, have been invited EA. how has this type of financial trading to participate. The goal is to identify the Ready for Commission’s deci- Mar. 2004. affected price differences between PJM’s current state of infrastructure in the sion on the application. day-ahead and real-time energy West, present and future infrastructure markets? needs, and the means for and barriers to p. You may also register online at B. How should the cost of PJM’s fulfilling those needs. We look forward http://www.ferc.gov/ proposed information system upgrades to an informative discussion of the esubscribenow.htmto be notified via be recovered? If this type of financial issues to clarify how we can facilitate email of new filings and issuances trading activity benefits the energy and enhance a comprehensive, related to this or other pending projects. markets, then is it appropriate to recover collaborative approach to energy For assistance, contact FERC Online costs from all customers or through a infrastructure development and Support. separate charge for excessive bids? For reliability for the western states. It is Magalie R. Salas, example, has bidding to take advantage becoming increasingly clear that a well- Secretary. of small arbitrage opportunities assured functioning energy infrastructure is necessary to meet America’s energy [FR Doc. 03–16748 Filed 7–2–03; 8:45 am] more efficient pricing of transactions? demands. BILLING CODE 6717–01–P C. Would PJM’s proposed information system upgrades be installed solely as a The conference Agenda is appended result of system expansion? to this Notice. As indicated, the purpose DEPARTMENT OF ENERGY D. What were the monthly average of the conference is to discuss regional number of bids/offers submitted in infrastructure issues among the Federal Energy Regulatory PJM’s monthly FTR auctions from 2001 panelists, and federal and state officials. Commission to the present? What were the average It is not intended to deal with issues number of bids/offers submitted in the pending in individually docketed cases [Docket Nos. ER03–694–000 and ER03–694– before the Commission, such as 001] second, third and fourth rounds of the 2003 Annual FTR auction? applications involving hydropower, PJM Interconnection, L.L.C.; Notice of The above schedule may be changed natural gas certificates, or the formation Staff Technical Conference as circumstances warrant. of Regional Transmission Organizations. Therefore, all participants are requested June 27, 2003. Magalie R. Salas, to address the agenda topics and avoid On June 17, 2003, the Commission Secretary. discussing the merits of individual issued an Order Accepting and [FR Doc. 03–16854 Filed 7–2–03; 8:45 am] proceedings. Suspending Tariff Sheets Subject to BILLING CODE 6717–01–P Refund and Establishing a Technical Opportunities for Listening to and Conference regarding a filing made by Obtaining Transcripts of the Conference PJM Interconnection, L.L.C. (PJM) DEPARTMENT OF ENERGY The Capital Connection will offer this proposing to establishing a charge for meeting live via telephone and audio on excessive bid/offer segments in its Federal Energy Regulatory the internet for a fee. There will not be energy markets and Financial Commission live video coverage or videotapes of the Transmission Rights (FTR) auctions. See [Docket No. AD03–10–000] conference. For more information about PJM Interconnection, L.L.C., 103 FERC Capitol Connection’s services, contact 2061,333 (2003). Western Energy Infrastructure David Reininger or Julia Morelli (703– Take notice that a staff technical Conference; Notice of Technical 993–3100), or go to http:// conference on the matters set forth in Conference and Agenda www.capitolconnection.org. the Commission’s order will be held for Audio tapes of the meeting will be one day, on Wednesday July 16, 2003, June 27, 2003. available from VISCOM (703–715– from 10 a.m. to 5 p.m., in a room to be As announced in the Notice of 7999). designated at the offices of the Federal Conference issued on June 2, 2003, the Additionally, transcripts of the Energy Regulatory Commission, 888 Federal Energy Regulatory Commission conference will be immediately First Street, NE., Washington, DC 20426. (FERC) will hold a conference on July available from Ace Reporting Company PJM and persons protesting various 30, 2003 to discuss issues regarding (202–347–3700 or 1–800–336–6646), for aspects of PJM’s filing should be energy infrastructure in the western a fee. They will be available for the prepared to answer questions and states. These states include Washington, public on the Commission’s FERRIS deliver presentations. Oregon, California, Nevada, Idaho, Utah, system two weeks after the conference.
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A reminder to please register for the • Traditional natural gas supply • Closing Remarks conference online on the Commission availability—Roger Biemans, President, [FR Doc. 03–16850 Filed 7–2–03; 8:45 am] Web site at http://www.ferc.gov/home/ EnCana US BILLING CODE 6717–01–P conferences.asp. Scroll down and click • Rocky Mountains infrastructure on ‘‘Western Energy Infrastructure needs/Coal-bed methane developing Conference in Denver, CO’’. There is no technology—Brian Jeffries, Vice DEPARTMENT OF ENERGY registration fee. President, Marketing, Western Gas Questions about the conference Resources Federal Energy Regulatory • program should be directed to: Carol Role of Liquified Natural Gas (LNG) Commission Connors, Office of External Affairs, facilities in gas supply—Darcel Hulse, Federal Energy Regulatory Commission, President, Sempra Global [Docket No. RM98–1–000] • 888 First Street, NE., Washington, DC Canadian gas update—Bill Regulations Governing Off-the-Record 20426, [email protected]. Bingham, Acting Business Leader, Commodity Unit, National Energy Communications; Public Notice Magalie R. Salas, Board-Canada/NEB June 27, 2003. Secretary. • Mexican gas update—Francisco de la Isla, General Director, Economic This constitutes notice, in accordance Attachment: Conference Agenda Policy Unit, Comision Reguladora de with 18 CFR 385.2201(h), of the receipt Marriott Denver City Center, 1701 Energia/CRE of exempt and prohibited off-the-record California Street, Denver, Colorado, communications. VI. Electric Transmission—4:25 p.m. to Order No. 607 (64 FR 51222, July 30, 2003. 5:10 p.m. September 22, 1999) requires I. Opening Remarks and Can the electric transmission system Commission decisional employees, who Introductions—2 p.m. to 2:10 p.m. get generation to load centers? make or receive an exempt or a • Siting issues in the West, e.g., prohibited off-the-record Chairman Pat Wood, Commissioner federal land corridors—Ronald communication relevant to the merits of William Massey, Commissioner Nora Montagna, Senior Realty Specialist, a contested on-the-record proceeding, to Brownell. Bureau of Land Management /White deliver a copy of the communication, if II. Overview of Current Energy House Energy Task Force written, or a summary of the substance Infrastructure—2:10 p.m. to 2:20 p.m. • Major transmission constraints— of any oral communication, to the Armando Perez, Director of Grid Secretary. Jeff Wright, Office of Energy Projects, Planning, California Independent Prohibited communications will be FERC. System Operator included in a public, non-decisional file III. Forecasting Future Energy • Bonneville Power Administration’s associated with, but not part of, the Infrastructure Needs—2:20 p.m. to 2:40 role and future plans—Vickie VanZandt, decisional record of the proceeding. p.m. Vice President of Operation and Unless the Commission determines that Planning, Bonneville Power Todd Filsinger, Senior Partner, the prohibited communication and any Administration responses thereto should become part of Wholesale Energy Markets, PA • State of regional transmission Consulting Group. the decisional record, the prohibited off- planning—Dean Perry, Chairman of the the-record communication will not be IV. New Electric Generation—2:45 p.m. Planning Work Group, Seams Steering considered by the Commission in to 3:30 p.m. Group-Western Interconnection/SSG– reaching its decision. Parties to a WI proceeding may seek the opportunity to Can new electric generation meet • Industry participation in new Western demand? respond to any facts or contentions • transmission infrastructure—Frederic made in a prohibited off-the-record Economic and financial barriers to Stoffel, Vice President, Policy communication, and may request that new generation—Rebecca Followill, Gas Development, XCEL Energy and Power Group, Howard Weil the Commission place the prohibited Investment Counselors VII. Discussion by State, Federal, Tribal communication and responses thereto • Fueling new generation—Peter and International Officials—5:15 p.m. in the decisional record. The Moritzburke, Director, Western Energy to 6 p.m. Commission will grant such requests Office, Cambridge Energy Research What conclusions have been reached only when it determines that fairness so Associates and what are the next steps? requires. Any person identified below as • Retirement forecast/reserve • Public Utility Commissioners— having made a prohibited off-the-record margin—Jeremy Platt, Manager, Power & Washington, Oregon, California, communication should serve the Fuel Markets, Electric Power Research Nevada, Idaho, Utah, Arizona, Montana, document on all parties listed on the Institute (EPRI), one author of a recently Wyoming, Colorado, New Mexico official service list for the applicable released EPRI report, ‘‘Outlook for (invited) proceeding in accordance with Rule Capacity Retirements Following U.S. • Tribal Representatives—A. David 2010, 18 CFR 385.2010. Boom in New Supplies: Report Series Lester, Executive Director, Council of Exempt off-the-record on Natural Gas and Power Reliability, Energy Resource Tribes (CERT), and communications will be included in the February 2003’’ Roger B. Fragua, Deputy Director, CERT decisional record of the proceeding, • Demand response successes— • Elected Officials or their Senior unless the communication was with a Charles Goldman, Leader, Electricity Designees—Governors, Congressional cooperating agency as described by 40 Markets and Policy Group, Lawrence and/or State legislators (invited) CFR 1501.6, made under 18 CFR Berkeley National Laboratory • Francisco de la Isla, General 385.2201(e)(1)(v). Director, Economic Policy Unit, CRE– The following is a list of prohibited V. Natural Gas—3:35 p.m. to 4:20 p.m. Mexico, and Bill Bingham, Acting and exempt communications recently Can natural gas meet future energy Business Leader, Commodity Unit, received in the Office of the Secretary. needs in the West? NEB–Canada The communications listed are grouped
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by docket numbers. These filings are Growth Regeneration, Reservoir Operations Study, available for review at the Commission Implementation, Kootenai National Implementation, TN, AL, KY, GA, in the Public Reference Room or may be Forest, Three Rivers Ranger District, MS, NC and VA, Comment Period viewed on the Commission’s Web site at Lincoln County, MT, Wait Period Ends: September 4, 2003, Contact: http://www.ferc.gov using the ‘‘FERRIS’’ Ends: August 4, 2003, Contact: Kathy Linda Shipp (865) 632–3440. link. Enter the docket number excluding Mohar (406) 295–4693. Amended Notices the last three digits in the docket EIS No. 030298, Draft EIS, NRC, ID, number field to access the document. Idaho Spent Fuel Facility, EIS No. 030150, Draft EIS, AFS, WI, For Assistance, please contact FERC Construction, Operation and Programmatic EIS—Cheguamegon- Online Support at Decommission, License Application, Nicolet National Forests Revised Land [email protected] or toll- Idaho National Engineering and and Resource Management Plan, free at (866) 208–3676, or for TTY, Environmental Laboratory, Butte Implementation, Ashland, Bayfield, contact (202) 502–8659. County, ID, Comment Period Ends: Florence, Forest, Langlade, Oconto, Exempt: August 18, 2003, Contact: Matthew Oneida, Price, Sawyer, Taylor and Blevins (301) 415–7684. This Vilas Counties, CA, Comment Period document is available on the Internet Docket No. Date filed Presenter or Ends: August 11, 2003, Contact: Sally Requester at: http://www.nrc.gov/reading- Hess-Samulson (715) 362–1384. rm.html. Revision of FR Notice Published on 1. CP02–90– 6–24–03 James Martin. EIS No. 030299, Draft EIS, NRC, NY, 000. 4/11/2003: CEQ Comment Period Generic—License Renewal for R.E. Ending 7/11/2003 has been Extended Ginna Nuclear Power Plant, to 8/11/2003. Magalie R. Salas, Supplement 14, NUREG–1437, Dated: June 30, 2003. Secretary. Implementation, Wayne County, NY, Joseph C. Montgomery, [FR Doc. 03–16857 Filed 7–2–03; 8:45 am] Comment Period Ends: September 16, Director, NEPA Compliance Division, Office BILLING CODE 6717–01–P 2003, Contact: Robert G. Schaaf (301) 415–1312. This document is available of Federal Activities. on the Internet at: http:// [FR Doc. 03–16847 Filed 7–2–03; 8:45 am] ENVIRONMENTAL PROTECTION www.fs.fed.us/r4/Payette/main.html. BILLING CODE 6560–50–P AGENCY EIS No. 030300, Final EIS, FHW, FL, St. Augustine Bridge of Lions (SR AIA) [ER–FRL–6641–6] Rehabilitation or Replacement of the ENVIRONMENTAL PROTECTION existing two lane bridge Crossing over AGENCY Environmental Impact Statements; the Matanzas River, Intracoastal [ER–FRL–6641–7] Notice of Availability Waterway, U.S. Coast Guard Bridge Responsible Agency: Office of Federal Permit and NPDES Permit Issuance, Environmental Impact Statements and Activities, General Information (202) St. Augustine, St. John County, FL, Regulations; Availability of EPA 564–7167 or http://www.epa.gov/ Wait Period Ends: August 6, 2003, Comments compliance/nepa. Contact: Donald E. Davis (850) 942– 9650. Availability of EPA comments Weekly receipt of Environmental Impact EIS No. 030301, Final EIS, UAF, CA, Los prepared pursuant to the Environmental Statements filed June 23, 2003 Angeles Air Force Base Land Review Process (ERP), under section through June 27, 2003 pursuant to 40 Conveyance, Construction and 309 of the Clean Air Act and section CFR 1506.9. Development Project, Transfer 102(2)(c) of the National Environmental EIS No. 030295, Draft EIS, AFS, OR, Portions of Private Development in Policy Act as amended. Requests for Flagtail Fire Recovery Project, To Exchange for Construction of New copies of EPA comments can be directed Address the Differences between Seismically Stable Facilities, Cities of to the Office of Federal Activities at Existing and Desired Conditions, Blue EL Sequndo and Hawthorne, Los (202) 564–7167. An explanation of the Mountain Ranger District, Malheur Angeles County, CA, Wait Period ratings assigned to draft environmental National Forest, Grant County, OR, Ends: August 18, 2003, Contact: Jason impact statements (EISs) was published Comment Period Ends: August 18, Taylor (310) 363–0142. in the Federal Register dated April 4, 2003, Contact: Linda Batten (541) EIS No. 030302, Draft EIS, FRC, FL, 2003 (68 FR 16511). 575–3000. This document is available Ocean Express Pipeline Project, Draft EISs on the Internet at:http:// Construction, Operation and www.fs.fed.us/r6/malheur. Maintenance of a Interstate Natural ERP No. D–AFS–K65254–AZ Rating EIS No. 030296, Final Supplement, Gas Pipeline extending from the LO, Cross-County Travel by Off- UAF, CA, NM, Airborne Laser (ABL) Exclusive Economic Zone (EEZ) Highway Vehicle Project, Motorized Program, Conducting Test Activities boundary between the United States Wheeled Cross-Country Travel at Kirtland Air Force Base (AFB) and and the Bahamas, (Docket No. CP02– Restrictions, Apache-Sitegreaves, White Sands Missile Range/Holloman 090–001–1) Plan of Operations Conino, Kaibab, Prescott and Tonto AFB, New Mexico; and Edwards AFB Approval, NPDES and U.S. Army COE National Forests, AZ. and Vandenberg AFB, California, NM Section 10 and Possible 404 Permits, Summary: EPA had no significant and CA, Wait Period Ends: August 4, Broward County, FL, Comment Period concerns with the preferred alternative. 2003, Contact: Charles Brown (210) Ends: August 25, 2003, Contact: Tom ERP No. D–AFS–K65255–CA Rating 536–4203. This document is available Russo (202) 502–8004. This document LO, Spalding Land Exchange Project, on the Internet at: http:// is available on the Internet at: http:/ Proposed Land Exchange between www.afcee.brooks.af.mil/ec/ /www.ferc.gov. Spalding Community Service District ecproducts.asp. EIS No. 030303, Draft EIS, TVA, TN, KY, (SCSD) and Lassen National Forest EIS No. 030297, FINAL EIS, AFS, MT, MS, VA, AL, GA, NC, Programmatic (LNF), Special Use Permit, Lassen Garver Project, Harvest and Old EIS—Tennessee Valley Authority County, CA.
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Summary: EPA has no significant ERP No. DS–FTA–C40150–NY Rating ERP No. F–FHW–K40247–CA CA–22/ concerns with the preferred alternative. EC2, Second Avenue Subway Project, West Orange County Connection ERP No. D–BLM–K65250–NV Rating Transit Access Improvements to Project, Transportation Improvements LO, Black Rock Desert-High Rock Manhattan’s East Side and Excess between I–605 and CA–55, Funding, Canyon Emigrant Trails National Crowd Reduction on the Lexington Cities of Los Alamitos, Seal Beach, Conservation Area (NCA) and Avenue Subway, Funding, New York, Garden Grove, Westminster, Santa Ana Associated Wilderness and Other NY. and Orange, Orange County, CA. Contiguous Lands Resource Summary: EPA has environmental Summary: EPA has no objections to Management Plan, Implementation, concerns with the proposed project’s air the proposed project. However, EPA Great Basin, NV. quality impacts, particularly carbon asked that FHWA’s Record of Decision Summary: EPA had no significant monoxide (CO) and particulate matter, clarify if the project disturbs or removes concerns with the preferred alternative. as well as wetland impacts. polychlorinated biphenyls (PCBs), a ERP No. D–FHW–G40173–LA Rating Final EISs toxic substance, at facilities or LO, I–49 South Lafayette Regional structures proposed for displacement. Airport to LA–88 Route U.S. 90 Project, ERP No. F–AFS–F65032–MN Holmes/ ERP No. F–JUS–K81028–CA Juvenile Upgrading Existing U.S. 90 from the Chipmunk Timber Sale Project, Justice Facility and East County Hall of Lafayette Regional Airport to LA–88, Implementation, Superior National Justice Development, Potential Funding, Iberia, Lafayette and St. Martin Forest, LaCroix Ranger District, Saint Construction of Both Projects on the Parishes, LA. Louis County, MN. Same Site or on Separate Sites, Summary: EPA has no objection to the Summary: EPA determined that Alamenda County, CA. selection of the preferred alternative. previous environmental concerns have Summary: EPA expressed a lack of ERP No. D–FHW–H40179–MO Rating been addressed in this Final EIS. objections to this project. LO, Missouri River Corridor Widening ERP No. F–AFS–K65245–AZ Kachina ERP No. F–NPS–K65239–AZ Tonto and Improvements, New Four Lane Village Forest Health Project, Forest National Monument General Expressway, Corridor consist of Four Health Improvements and Potential Management Plan, New Administrative Segments: Front Street, Chouteau Wildfire Reductions on National Forest Facility Construction within the Trafficway, South Riverfront System Land, Implementation, Monument Boundaries, Expressway (SRE) and Little Blue Coconino National Forest, Mormon Lake Implementation, AZ. Expressway (LBE), Funding, Jackson Ranger District, Coconino County, AZ. Summary: No formal comment letter and Clay Counties, MO. Summary: No formal comment letter was sent to the preparing agency. Summary: EPA has no objections to was sent to the preparing agency. ERP No. FS–AFS–L61199–ID Salmon the proposed project. However, EPA ERP No. F–BLM–K09808–NV Ivanpah Wild and Scenic River Management recommends that a chronological Energy Center Project, 500 Megawatt Plan, Timeline Change From December evaluation of other planned actions (MW) Gas-Fired Electric Power 31, 2002 to December 31, 2005 and relative to the proposed implementation Generating Station Construction and Clarification of Economic Impacts on schedule of the Missouri River Corridor Operation, Approval, Right-of-Way the Camps, Stub Creek, Arctic Creek and be utilized to derive the preferred Grant, BLM Temporary Use Permit, Smith Gulch Creek, Salmon National alternative. FHWA Permit to Cross Federal Aid Forest, Salmon County, ID. ERP No. D–NPS–C61055–NJ Rating Highway, U.S. Army COE Section 10 Summary: No formal comment letter LO, Morristown National Historical Park and 404 Permits and NPDES Permit was sent to the preparing agency. General Management Plan, Issuance, Clark County, NV. Implementation, Morris and Somerset Summary: No formal comment letter Dated: June 30, 2003. Counties, NJ. was sent to the preparing agency. Joseph C. Montgomery, Summary: EPA has no objections with ERP No. F–FHW–E40783–SC Dave Director, NEPA Compliance Division, Office the management plan and requests the Lyle Boulevard Extension on New of Federal Activities. opportunity to review future NEPA Location, SC–161/Dave Lyle Boulevard [FR Doc. 03–16848 Filed 7–2–03; 8:45 am] documents prepared for specific actions Intersection in York County to SC–75, at BILLING CODE 6560–50–P outlined in the programmatic plan. the US–521/SC–75 Intersection, near the ERP No. DA–FHW–B40037–RI Rating South Carolina/North Carolina Border EC2, Jamestown Bridge Replacement in Lancaster, Funding, York and ENVIRONMENTAL PROTECTION Project, New Information Regarding the Lancaster Counties, SC. AGENCY Demolition of the Old Jamestown Bridge Summary: EPA continues to have (Bridge No. 400), Federal Aid Project environmental concerns with the [ER–FRL–6641–8] Number (BRF–0138(002), U.S. Coast proposed project regarding impacts and Public Input Requested on the Guard Bridge, NPDES and U.S. Army mitigation for endangered species, Proposed Site Designation of the ‘‘LA– COE Section 404 Permits Issuance, wetlands, and traffic noise. Towns of North Kingstown and ERP No. F–FHW–F40410–IL Milan 3’’ Ocean Dredged Material Disposal Jamestown, Washington and Newport Beltway Extension, Airport Road to Site off Newport Bay, Orange County, Counties, RI. Blackhawk Road/John Deere California Summary: EPA expressed Expressway, Funding and Permits AGENCY: Environmental Protection environmental concerns and requested Issuance, Rock River, Rock Island Agency (EPA). additional information to more fully County, IL. ACTION: Notice of Intent to initiate the describe flora and fauna to the project Summary: EPA has no objections to scoping phase for public input in area and the existing conditions at the preferred alternative, which we advance of preparing an Environmental candidate reef sites; to document the believe will have minimal Impact Statement (EIS) to designate impacts associated with both the environmental impacts, provided ‘‘LA–3’’ as a permanent ocean dredged demolition and disposal phases of the mitigation is implemented, and which material disposal site (ODMDS) off project; and to address air quality issues meets the stated purpose of addressing Newport Bay, California. associated with the work. area traffic volume.
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PURPOSE: EPA has the authority to disposal volume limit for LA–2 to ADDRESSES: Comments may be designate ODMDS under Section 102 of accommodate most Los Angeles area submitted electronically, by mail, or the Marine Protection, Research and projects. through hand delivery/courier. Follow Sanctuaries Act (MPRSA) of 1972 —‘‘Maximize Use of LA–3’’— the detailed instructions as provided in (33USC 1401 et seq.). EPA’s preparation Designate LA–3 as a permanent ODMDS Unit I. of the SUPPLEMENTARY of this EIS is being carried out pursuant with a maximum annual disposal limit INFORMATION. to the October 29, 1998 Notice of Policy to meet the ocean disposal needs of all FOR FURTHER INFORMATION CONTACT: and Procedures for Voluntary Los Angeles-Orange County region Preparation of National Environmental projects to the extent feasible, and Shaja R. Brothers, Registration Division Policy Act (NEPA) (63 FR 58045). Public establish an annual disposal volume (7505C), Office of Pesticide Programs, comments on the scope of the EIS limit for LA–2 to accommodate only Environmental Protection Agency, 1200 evaluation will be accepted for 45 days those projects that could not feasibly Pennsylvania Ave., NW., Washington, from the date of this notice. use LA–3. DC 20460–0001; telephone number: (703) 308–3194; e-mail address: FOR FURTHER INFORMATION, TO SUBMIT SCOPING: EPA is requesting written [email protected]. COMMENTS, AND TO BE PLACED ON A comments from federal, state, and local PROJECT MAILING LIST, CONTACT: Mr. governments, industry, non- SUPPLEMENTARY INFORMATION: Allan Ota, U.S. Environmental governmental organizations, and the I. General Information Protection Agency, Region 9, Dredging general public on the need for action, and Sediment Management Team the range of alternatives considered, and A. Does this Action Apply to Me? (WTR–8), 75 Hawthorne Street, San the potential impacts of the alternatives. You may be potentially affected by Francisco, California 94105–3901, Scoping comments will be accepted for this action if you are an agricultural Telephone: (415) 972–3476 or FAX: 45 days, beginning with the date of this producer, food manufacturer, or (415) 947–3537 or E-mail: Notice. Public scoping meetings are pesticide manufacturer. Potentially R9_LA3LA2disposal sites_scoping@ scheduled at two locations on the affected entities may include, but are epa.gov. following dates: 1. July 21, 2003, 2–4 not limited to: SUMMARY: EPA intends to conduct p.m. and 7–9 p.m., in Orange County at • Crop production (NAICS 111) public meetings and collect public the Upper Newport Bay Peter and Mary • Animal production (NAICS 112) comments in advance of preparing an Muth Interpretive Center, 2301 • Food manufacturer (NAICS 311) EIS to designate LA–3 as a permanent University Drive, Newport Beach, • Pesticide manufacturer (NAICS ODMDS off Newport Bay, California. California 92660 (corner of University 32532) The EIS will also re-evaluate an annual Drive and Irvine Avenue). 2. July 22, This listing is not intended to be disposal volume limit for the existing 2003, 2–4 p.m. and 7–9 p.m., in Los exhaustive, but rather provides a guide LA–2 ODMDS, and how to minimize Angeles County at the Port of Long for readers regarding entities likely to be cumulative environmental impacts from Beach, 925 Harbor Plaza, Long Beach, affected by this action. Other types of two ODMDS in the region. California 90802, on the 5th Floor entities not listed in this unit could also NEED FOR ACTION: Dredging is essential Conference Room. be affected. The North American for maintaining safe navigation in Estimated Date of Draft EIS Release: Industrial Classification System harbors and marinas in the Los Angeles February 2004. (NAICS) codes have been provided to County and Orange County region. Not Dated: June 30, 2003. assist you and others in determining all dredged materials are suitable for Anne Norton Miller, whether this action might apply to beneficial re-use (e.g., construction, Director, Office of Federal Activities. certain entities. If you have any wetlands restoration), and it is not questions regarding the applicability of [FR Doc. 03–16846 Filed 7–2–03; 8:45 am] feasible to use the existing LA–2 this action to a particular entity, consult ODMDS for all projects in the region. BILLING CODE 6560–50–P the person listed under FOR FURTHER The LA–3 ODMDS has been used by INFORMATION CONTACT. some Orange County projects in the ENVIRONMENTAL PROTECTION past, but its ‘‘interim’’ status has B. How Can I Get Copies of this AGENCY expired. Therefore there is a need to Document and Other Related Information? designate LA–3 as a permanent ODMDS. [OPP–2003–0229; FRL–7315–4] ALTERNATIVES: The following proposed 1. Docket. EPA has established an alternatives have been tentatively Pyridaben; Notice of Filing a Pesticide official public docket for this action defined. Petition to Establish a Tolerance for a under docket identification (ID) number —‘‘No Action’’—Do not designate Certain Pesticide Chemical in or on OPP–2003–0229. The official public LA–3 as a permanent ODMDS, and Food docket consists of the documents continue to manage the existing LA–2 specifically referenced in this action, ODMDS without a designated maximum AGENCY: Environmental Protection any public comments received, and annual disposal volume limit. Agency (EPA). other information related to this action. —‘‘Maximize Use of LA–2’’—Do not ACTION: Notice. Although a part of the official docket, designate LA–3 as a permanent ODMDS, the public docket does not include but establish a maximum annual SUMMARY: This notice announces the Confidential Business Information (CBI) disposal volume limit for the LA–2 site initial filing of a pesticide petition or other information whose disclosure is adequate to meet the ocean disposal proposing the establishment of restricted by statute. The official public needs of all Los Angeles-Orange County regulations for residues of a certain docket is the collection of materials that region projects. pesticide chemical in or on various food is available for public viewing at the —‘‘Local Use of LA–3 and LA–2’’— commodities. Public Information and Records Designate LA–3 as a permanent ODMDS DATES: Comments, identified by docket Integrity Branch (PIRIB), Rm. 119, primarily for Orange County projects, ID number OPP–2003–0229, must be Crystal Mall #2, 1921 Jefferson Davis and establish a higher maximum annual received on or before August 4, 2003. Hwy., Arlington, VA. This docket
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facility is open from 8:30 a.m. to 4 p.m., version of the comment that is placed in EPA’s preferred method for receiving Monday through Friday, excluding legal EPA’s electronic public docket. The comments. Go directly to EPA Dockets holidays. The docket telephone number entire printed comment, including the at http://www.epa.gov/edocket, and is (703) 305–5805. copyrighted material, will be available follow the online instructions for 2. Electronic access. You may access in the public docket. submitting comments. Once in the this Federal Register document Public comments submitted on system, select ‘‘search,’’ and then key in electronically through the EPA Internet computer disks that are mailed or docket ID number OPP–2003–0229. The under the ‘‘Federal Register’’ listings at delivered to the docket will be system is an ‘‘anonymous access’’ http://www.epa. gov/fedrgstr/. transferred to EPA’s electronic public system, which means EPA will not An electronic version of the public docket. Public comments that are know your identity, e-mail address, or docket is available through EPA’s mailed or delivered to the docket will be other contact information unless you electronic public docket and comment scanned and placed in EPA’s electronic provide it in the body of your comment. system, EPA Dockets. You may use EPA public docket. Where practical, physical ii. E-mail. Comments may be sent by Dockets at http://www.epa.gov/edocket/ objects will be photographed, and the e-mail to [email protected], to submit or view public comments, photograph will be placed in EPA’s Attention: Docket ID Number OPP– access the index listing of the contents electronic public docket along with a 2003–0229. In contrast to EPA’s of the official public docket, and to brief description written by the docket electronic public docket, EPA’s e-mail access those documents in the public staff. system is not an ‘‘anonymous access’’ docket that are available electronically. system. If you send an e-mail comment C. How and To Whom Do I Submit Although not all docket materials may directly to the docket without going Comments? be available electronically, you may still through EPA’s electronic public docket, access any of the publicly available You may submit comments EPA’s e-mail system automatically docket materials through the docket electronically, by mail, or through hand captures your e-mail address. E-mail facility identified in Unit I.B.1. Once in delivery/courier. To ensure proper addresses that are automatically the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate captured by EPA’s e-mail system are the appropriate docket ID number. docket ID number in the subject line on included as part of the comment that is Certain types of information will not the first page of your comment. Please placed in the official public docket, and be placed in the EPA Dockets. ensure that your comments are made available in EPA’s electronic Information claimed as CBI and other submitted within the specified comment public docket. information whose disclosure is period. Comments received after the iii. Disk or CD ROM. You may submit restricted by statute, which is not close of the comment period will be comments on a disk or CD ROM that included in the official public docket, marked ‘‘late.’’ EPA is not required to you mail to the mailing address will not be available for public viewing consider these late comments. If you identified in Unit I.C.2. These electronic in EPA’s electronic public docket. EPA’s wish to submit CBI or information that submissions will be accepted in policy is that copyrighted material will is otherwise protected by statute, please WordPerfect or ASCII file format. Avoid not be placed in EPA’s electronic public follow the instructions in Unit I.D. Do the use of special characters and any docket but will be available only in not use EPA Dockets or e-mail to submit form of encryption. printed, paper form in the official public CBI or information protected by statute. 2. By mail. Send your comments to: docket. To the extent feasible, publicly 1. Electronically. If you submit an Public Information and Records available docket materials will be made electronic comment as prescribed in this Integrity Branch (PIRIB) (7502C), Office available in EPA’s electronic public unit, EPA recommends that you include of Pesticide Programs (OPP), docket. When a document is selected your name, mailing address, and an e- Environmental Protection Agency, 1200 from the index list in EPA Dockets, the mail address or other contact Pennsylvania Ave., NW., Washington, system will identify whether the information in the body of your DC 20460–0001, Attention: Docket ID document is available for viewing in comment. Also include this contact Number OPP–2003–0229. EPA’s electronic public docket. information on the outside of any disk 3. By hand delivery or courier. Deliver Although not all docket materials may or CD ROM you submit, and in any your comments to: Public Information be available electronically, you may still cover letter accompanying the disk or and Records Integrity Branch (PIRIB), access any of the publicly available CD ROM. This ensures that you can be Office of Pesticide Programs (OPP), docket materials through the docket identified as the submitter of the Environmental Protection Agency, Rm. facility identified in Unit I.B. EPA comment and allows EPA to contact you 119, Crystal Mall #2, 1921 Jefferson intends to work towards providing in case EPA cannot read your comment Davis Hwy., Arlington, VA, Attention: electronic access to all of the publicly due to technical difficulties or needs Docket ID Number OPP–2003–0229. available docket materials through further information on the substance of Such deliveries are only accepted EPA’s electronic public docket. your comment. EPA’s policy is that EPA during the docket’s normal hours of For public commenters, it is will not edit your comment, and any operation as identified in Unit I.B.1. important to note that EPA’s policy is identifying or contact information that public comments, whether provided in the body of a comment will D. How Should I Submit CBI To the submitted electronically or in paper, be included as part of the comment that Agency? will be made available for public is placed in the official public docket, Do not submit information that you viewing in EPA’s electronic public and made available in EPA’s electronic consider to be CBI electronically docket as EPA receives them and public docket. If EPA cannot read your through EPA’s electronic public docket without change, unless the comment comment due to technical difficulties or by e-mail. You may claim contains copyrighted material, CBI, or and cannot contact you for clarification, information that you submit to EPA as other information whose disclosure is EPA may not be able to consider your CBI by marking any part or all of that restricted by statute. When EPA comment. information as CBI (if you submit CBI identifies a comment containing i. EPA Dockets. Your use of EPA’s on disk or CD ROM, mark the outside copyrighted material, EPA will provide electronic public docket to submit of the disk or CD ROM as CBI and then a reference to that material in the comments to EPA electronically is identify electronically within the disk or
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CD ROM the specific information that is List of Subjects petitions. This summary has been CBI). Information so marked will not be Environmental protection, prepared by the BASF Corporation. disclosed except in accordance with Agricultural commodities, Feed A. Residue Chemistry procedures set forth in 40 CFR part 2. additives, Food additives, Pesticides In addition to one complete version of 1. Plant metabolism. The nature of the and pests, Reporting and recordkeeping residue in plants is adequately the comment that includes any requirements. information claimed as CBI, a copy of understood. The residue of concern is the comment that does not contain the Dated: June 26, 2003. pyridaben per se as specified in 40 CFR information claimed as CBI must be Debra Edwards, 180.494. submitted for inclusion in the public Director, Registration Division, Office of 2. Analytical method. The proposed docket and EPA’s electronic public Pesticide Programs. analytical method involves extraction, partition, clean-up and detection of docket. If you submit the copy that does Summary of Petitions not contain CBI on disk or CD ROM, residues by gas chromatography/ mark the outside of the disk or CD ROM The petitioner summary of the electron capture detector (gc/ecd). 3. Magnitude of residues. Field trials clearly that it does not contain CBI. pesticide petitions are printed below as were carried out in order to determine Information not marked as CBI will be required by FFDCA section 408(d)(3). the magnitude of the residue in the included in the public docket and EPA’s The summary of the petitions were following crops: Strawberries, hops, electronic public docket without prior prepared by the petitioner and cherries (to satisfy the requirements for notice. If you have any questions about represents the view of the petitioner. a stone fruits group), and papaya. Two CBI or the procedures for claiming CBI, The petition summary announces the greenhouse tomato residue trials were please consult the person listed under availability of a description of the conducted in Canada. Residue trials FOR FURTHER INFORMATION CONTACT. analytical methods available to EPA for the detection and measurement of the were carried out using the maximum E. What Should I Consider as I Prepare pesticide chemical residues or an label rate, the maximum number of My Comments for EPA? explanation of why no such method is applications, and the minimum pre- You may find the following needed. harvest interval for each crop or crop group. suggestions helpful for preparing your Interregional Research Project Number comments: 4 (IR-4) B. Toxicological Profile 1. Explain your views as clearly as 1. Acute. In general, the acute possible. 0E6068, 1E6226, 1E6303, 2E6457, and 2E6460 toxicology studies conducted on 2. Describe any assumptions that you technical grade pyridaben demonstrate used. EPA has received pesticide petitions that it has moderate to mild toxic 3. Provide copies of any technical (0E6068, 1E6226, 1E6303, 2E6457, and effects. It was classified as Toxicity information and/or data you used that 2E6460) from IR-4, 681 U.S. Highway #1 Category III based upon the acute oral support your views. South, North Brunswick, NJ 08902–3390 lethal dose (LD)50 of 1,100 mg/kg in 4. If you estimate potential burden or proposing, pursuant to section 408(d) of male rats and 570 mg/kg in female rats. costs, explain how you arrived at the the Federal Food, Drug, and Cosmetic The dermal LD50 in rabbits was greater estimate that you provide. Act (FFDCA), 21 U.S.C. 346a(d), to than or equal to 2,000 mg/kg (Tox. Cat. 5. Provide specific examples to amend 40 CFR part 180.494 by III) and the inhalation lethal illustrate your concerns. establishing tolerances for combined concentrations (LC)50 were 0.66 and 6. Make sure to submit your residues of pyridaben, 2-tert-butyl-5-(4- 0.64 mg/kg in male and female rats, comments by the deadline in this tert-butylbenzylthio)-4-chloropyridazin- respectively (Tox Cat. III). The eye notice. 3(2H)-one in or on the following raw irritation study (rabbits) produced slight 7. To ensure proper receipt by EPA, agricultural commodities: strawberry at ocular irritation (Tox. Cat. III). be sure to identify the docket ID number 2.5 parts per million (ppm)(PP 0E6068); Pyridaben was not a dermal irritant assigned to this action in the subject hop, dried cones at 10.0 ppm (PP (Tox. Cat. IV) or sensitizer. line on the first page of your response. 1E6226); tomato at 0.2 ppm (PP 2. Genotoxicity. Genotoxicity studies You may also provide the name, date, 1E6303); fruit, stone, group at 2.5 ppm including Ames testing, in vitro and Federal Register citation. (PP 2E6457), papaya, black sapote, cytogenicity (chinese hamster lung cell), canistel, mamey sapote, mango, in vivo micronucleus assay (mouse) and II. What Action is the Agency Taking? sapodilla, and star apple at 0.1 ppm (PP DNA damage/repair (E. coli) showed no EPA has received a pesticide petition 2E6460). Registration for tomato will be genotoxic activity associated with as follows proposing the establishment limited to greenhouse grown tomato pyridaben. and/or amendment of regulations for based on the available residue data. The 3. Reproductive and developmental residues of a certain pesticide chemical petitioner also proposes that established toxicity. In a developmental toxicity in or on various food commodities tolerances for nectarine, peach, plum, study, Sprague-Dawley rats (22/group) under section 408 of the Federal Food, and prune at 2.5 ppm be deleted since from Charles River, U.K., received Drug, and Cosmetic Act (FFDCA), 21 they will be superceded by the tolerance Pyridaben (98.0% pure) via gavage at U.S.C. 346a. EPA has determined that for fruit, stone, group at 2.5 ppm. dose levels of 0, 2.5, 5.7, 13.0, or 30.0 this petition contains data or EPA has determined that the petitions milligram kilogram day (mg/kg/day) information regarding theelements set contain data or information regarding from gestation day 6 through 15, forth in FFDCA section 408(d)(2); the elements set forth in section inclusive. Maternal toxicity, observed at however, EPA has not fully evaluated 408(d)(2) of the FFDCA; however, EPA 13.0 and 30.0 mg/kg/day, consisted of the sufficiency of the submitted data at has not fully evaluated the sufficiency decreased body weight/weight gain and this time or whether the data support of the submitted data at this time or food consumption during the dosing granting of the petition. Additional data whether the data support granting of the period. Based on these effects, the may be needed before EPA rules on the petitions. Additional data may be maternal toxicity lowest observed petition. needed before EPA rules on the adverse effect level (LOAEL) is 13.0 mg/
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kg/day and the maternal toxicity no related changes in hematology, clinical plasma levels following a single low observed adverse effect level (NOAEL) chemistry, or urinalysis parameters. The oral dose (3 mg/kg) peaked at 23 hours is 4.7 mg/kg/day (82% of 5.7 mg/kg/day NOAEL was determined to be <1.0 mg/ while peak levels at the high dose (30 based on concentration analysis). The kg/day and the LOAEL was ≤1.0 mg/kg/ mg/kg) were at approximately 24 hours developmental toxicity NOAEL is 13.0 day based on increased incidences of post-dose due, at least in part, to mg/kg/day based on observed decreased clinical signs (thinness, dehydration, enterhepatic circulation (nearly 22–30% fetal body weight and increased diarrhea, emesis, soft stool, ptyalism, of an administered radioactive dose is incomplete ossification in selected and relaxed nictitans) in treatment excreted in bile within a period of 24 bones at 30.0 mg/kg/day LOAEL. groups of both sexes and decreased hours). Residual radioactivity was at or New Zealand white rabbits (19 or 20/ body weight gain in females at 1.0 mg/ near background levels for most tissues group) were orally dosed with 0, 1.5, 5, kg/day. by 72 to 168 hours. Generally, there or 15 mg/kg/day pyridaben from day 6 In a follow-up study, Pyridaben was seemed to be increased distribution to through 19 of gestation. Maternal administered in capsules to beagle dogs fat over time and, compared to other toxicity was evidenced by a dose- at dosages of 0 and 0.5 mg/kg/day for 1 tissues, fat seemed to have relatively dependent decrease in body weight gain year. The NOAEL was determined to be more residual radioactivity. Several and food consumption at all dose levels. <0.5 mg/kg/day for males and females metabolites, totaling up to 20–30, were There was also increased incidences of and the LOAEL was ≤0.5 mg/kg/day for resolved in urine and feces and some abortions and clinical signs (few feces) males and females based on an were structurally identified. in the 15 mg/kg/day group. There was increased incidence of clinical signs in 7. Metabolite toxicology. The nature of no evidence that the chemical had a both treated sexes and decreased weight the residue in animals is adequately developmental effect at any of the tested gain in the treated females. understood. The residue of concern is levels. The maternal NOAEL was <1.5 Pyridaben was administered in the pyridaben and its metabolites PB–7, 2- mg/kg/day and the Maternal LOAEL diet to CD-1 mice at dosages of 0, 2.5, tert-butyl-5-[4-(1-carboxy-1- was 1.5 mg/kg/day based on decreases 8.0, 25 or 80 ppm for 78 weeks. There methylethyl)benzylthio]-4- in body weight gain and food was no evidence of a carcinogenic effect chloropyridazin-3(2H)-one and PB–9, 2- consumption at all dose levels. No of the chemical. The NOAEL was tert-butyl-4-chloro-5-[4-(1,1-dimethyl-2- developmental toxicity was observed at determined to be 25 ppm (2.78 mg/kg/ hydroxyethyl) benzylthio]- any dose level. Therefore, the NOAEL day) for males and females and a chloropyridazin-3(2H)-one as specified for developmental toxicity is greater LOAEL of 80 ppm (8.88 and 9.74 mg/ in 40 CFR 180.494. than or equal to 15 mg/kg/day. kg/day for males and females, 8. Endocrine disruption. The most In a standard two-generation respectively). The LOAEL was common toxicity endpoint across the reproduction study, CD rats were determined to be 80 ppm for males and various studies and test species was administered pyridaben in the diet at females based on decreased body weight decreased body weight/decreased body doses of 0, 10, 28 or 80 ppm. The gain, decreased food efficiency and weight gain followed by decreased feed Parental/Systemic NOAEL is 28 ppm changes in organ weights and consumption and/or feed efficiency. (2.20 and 2.41 mg/kg/day for males and histopathology (males). These effects were observed in the 13– females, respectively). The parental/ Pyridaben was administered in the week feeding study in mice, in a 13– systemic LOAEL is 80 ppm (6.31 and diet to groups of Wistar rats for 104 week rat study, in two 13–week dog 7.82 mg/kg/day for males and females, weeks at doses of 0, 4, 10, 28 or 80 ppm studies, in a 21–day rat dermal study, in respectively) based on decreased body to assess carcinogenicity. Additional a 28–day inhalation toxicity study in weights, body weight gains and food groups (35 animals/sex/dose) received rats, in two 1–year feeding studies in efficiency. There was no effect on doses of 0, 4, 10, 28 or 120 ppm for 104 dogs, in a 78–week feeding/ reproductive parameters on the dose weeks (with an interim sacrifice at 53 carcinogenicity study in mice, in a levels tested. The reproductive NOAEL weeks) to assess chronic toxicity. There developmental toxicity study in rats, in is ≥80 ppm in males and females. The was no treatment-related neoplastic or two developmental studies in rabbits, reproductive LOAEL is >80 ppm in non-neoplastic pathology in either and in a 2–year feeding carcinogenicity males and females. phase of the study. The NOAEL was study in rats. The LOAELs were always 4. Subchronic toxicity. In a 21–day determined to be 28 ppm in males (1.13 based on decreases in body weight gain/ dermal study, rats received repeated mg/kg/day) and 28 ppm (1.46 mg/kg/ body weight decreases or decreases in topical applications of pyridaben (98% day) in females. The LOAEL was food consumption. Other effects were pure) to about 10% of the body surface determined to be 120 ppm (5.00 mg/kg/ sporadic and involved changes in area at dosages of 30, 100, 300 and 1,000 day) in males and 120 ppm (6.52 mg/kg/ certain clinical chemistry values or mg/kg for 21 days. The treatment day) in females based on decreased increases or decreases in organ weights. produced body weight decreases in the body weight gain in males and females Thus, there is no indication that effects 300 mg/kg/day females and in the 1,000 and decreased ALT levels in males in on the endocrine system were mg/kg/day males and females. The the chronic toxicity phase. There was no responsible for any of the observed NOAEL was 100 mg/kg/day and the evidence of a carcinogenic effect of this effects. LOAEL was 300 mg/kg/day based on chemical. decreased body weight gain in females. 6. Animal metabolism. In an C. Aggregate Exposure The toxicology endpoints from this acceptable rat metabolism study by the 1. Dietary exposure. Assessments study were selected by the Agency for oral route, pyridaben was mainly were conducted to evaluate the short- and intermediate-term dermal eliminated in the feces where 80–97% potential risk due to chronic and acute risk assessments. of the administered dose was excreted dietary exposure of the U.S. population 5. Chronic toxicity. In a 12–month regardless of the dose or site of label to residues of pyridaben (BAS 300 I). chronic feeding study in dogs pyridaben (pyridazinone or benzyl ring). Nearly Commodities (crops and animal was administered in capsules at dosages 20% of the excreted residue in the feces products) specified in 40 CFR 180.494 of 0, 1.0, 4.0, 16.0 or 32.0 mg/kg/day. was unmetabolized parent compound and all new/updated crop tolerances All animals survived until the end of and there was some evidence of were included in the dietary assessment the study and there were no treatment- glucoronide conjugate(s) in the bile. The (citrus, pome fruit, stone fruit, grapes,
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cranberries, tree nuts, pistachio, papaya TABLE 1.—PROCESS FACTORS USED to determine whether pyridaben has a and similar fruit, strawberries, hops, IN THE PYRIDABEN DIETARY common mechanism of toxicity with green house tomatoes, and secondary ASSESSMENT other substances or how to include this residues in animal products meat, meat pesticide in a cumulative risk assessment. Unlike other pesticides for byproducts, fat - from cattle, goat, hog, Commodity Process Process horse, sheep). Factor which EPA has followed a cumulative risk approach based on a common i. Food. Specific inputs and default Citrus washed 0.48 mechanism of toxicity, pyridaben does values were considered in the pyridaben juice 0.096 not appear to form a toxic metabolite dietary assessment. Anticipated residue produced by other substances. As a values from the raw agricultural Apples/Pears washed 0.68 juice 0.09 result, for the purposes of this tolerance commodities and the residue tolerances action, it is assumed that pyridaben utilized in the assessment were Grapes juice 0.04 does not have a common mechanism of multiplied by a factor of 2.3 to include dried 0.94 toxicity with other substances. all organosoluble residues of pyridaben. * Default processing factors were used for E. Safety Determination Tolerance values were assumed for all other commodities. pistachios, tree nuts, and secondary ii. Drinking water. There are no 1. Acute. Exposure estimates for the residues in meat, meat byproducts, fat, established maximum contaminant pyridaben acute dietary assessment and milk. The 2.3 multiplication factor levels or health advisory levels for were well under 100% of the aPAD at was not used for these animal residues of pyridaben (BAS 300 I) or its the 99.9th percentile. The overall commodities since the residues of metabolites in drinking water. The general population and the most concern (pyridaben and its metabolites), PRZM/EXAMS and SciGrow models sensitive subpopulation (females 13–49 < as specified in 40 CFR 180.494 are well were used to estimate the maximum years) utilized 11% and 14.5% of the understood in animals. Default concentrations in surface and ground acute population adjusted dose (aPAD), processing factors were used for all water, respectively. Pyridaben is respectively. Results from a Tier I commodities except for those specified immobile and thus unlikely to leach to dietary assessment of pyridaben in Table 1 below. In addition, percent groundwater. Results of environmental residues in cranberries indicates the crop treated (% CT) values of 23, 5.8, modeling indicate an estimated 0.215 percent aPAD for children 1–6 years old < and 11.4% were utilized for pome fruit, ppm (acute) and 0.020 ppm (chronic) of and females 13–49 years old were 3%. grapes, and citrus, respectively. These pyridaben in surface water. Therefore considering all current and percent crop treated values were based 2. Non-dietary exposure. Pyridaben pending commodities, including cranberries, the percent chronic on the 2000 to 2002 pyridaben peak (BAS 300 I) is a plant protection product reference dose (%cRfD) and percent sales year and peak acreage year. All used to control insects. This product is chronic population dose (%cPAD) will other crops were considered to have not considered for residential use and be below 20% for all population 100% crop treated. therefore the aggregate exposure is a result of pyridaben residues in food and subgroups. Further refinements water. including additional percent crop treated, processing factors, cooking D. Cumulative Effects factors, actual residue values for the The cumulative exposure to remaining commodities (where default substances with common mechanism of values and tolerance levels were used toxicity must be considered. Currently for this assessment) would further at this time there is not available data reduce the exposure estimates.
TABLE 2. ACUTE DIETARY EXPOSURE ASSESSMENT FOR FOR PYRIDABEN (BAS 300 I)
Exposure Esti- Population Subgroups mate (mg/kg b. w. %aRfD %aPAD /day)
Birth to 1 year 0.04488 8.98 8.98
1–2 years 0.0509 10.18 10.18
3–5 years 0.04339 8.68 8.68
1–6 years 0.03382 6.76 6.76
6–12 years 0.0300 6.00 6.00
13–19 years 0.01327 2.65 2.65
Females 13–49 years 0.01885 14.50 14.50
Males 20–49 years 0.01101 2.20 2.20
Adults 50+ years 0.01591 3.18 3.18
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2. Chronic. The estimated chronic percent cPAD for children 1–6 years old refinements including additional dietary exposure for all current and and females of childbearing years (13– percent crop treated, processing factors, pending commodities (except 49 years old) were 7.1% and 12.9%, cooking factors, actual residue values cranberries) ranged from 15.6 to 77.3% respectively. Therefore considering all for the remaining commodities (that for the cRfD and cPAD for all current and pending commodities, used default values and tolerance levels) subpopulations. Results from a Tier I including cranberries, the %cRfD and would further reduce the exposure dietary assessment of pyridaben %cPAD will be below 100% for all estimates. residues in cranberries indicates the population subgroups. Further
TABLE 3.—CHRONIC DIETARY EXPOSURE ASSESSMENT FOR PYRIDABEN (BAS 300 I)
Exposure Esti- Population Subgroups mate(mg/kg b.w./ %cRfD %Cpad day)
Birth to 1 year 0.00371 74.2 74.2
12 years 0.003867 77.34 77.34
35 years 0.002752 55.04 55.04
16 years 0.0031 62 62
6–12 years 0.002541 50.82 50.82
13–19 years 0.0009618 19.236 19.236
The aggregate exposure (food and Compliance matters pursuant to 2 FEDERAL HOUSING FINANCE BOARD drinking water) of pyridaben will not U.S.C. 437g. [No. 2003–N–05] exceed the U.S. EPA’s level of concern Audits conducted pursuant to 2 (100% of RfD). Overall, we can U.S.C. 437g, 438(b), and Title 26, U.S.C. Privacy Act of 1974; System of conclude with reasonable certainty that Records no harm will occur from either acute or Matters concerning participation in chronic aggregate exposure of pyridaben civil actions or proceedings or AGENCY: Federal Housing Finance residues as a result of use on citrus, arbitration. Board. pome fruit, stone fruit, grapes, Internal personnel rules and ACTION: Notice with request for cranberries, tree nuts, pistachio, papaya procedures or matters affecting a comments. (and similar fruit), strawberries, hops, particular. and green house tomatoes. SUMMARY: In accordance with the DATE AND TIME: Thursday, July 10, 2003 Privacy Act of 1974 (Privacy Act), the F. International Tolerances at 10 a.m. Federal Housing Finance Board Maximum residue levels (MRLs) have (Finance Board) is providing notice of PLACE: been established for pyridaben in 999 E Street, NW., Washington, its intent to amend its system of records Canada. No MRLs have been established DC (ninth floor). to reflect agency reorganizations and by the Codex Alimentarius Commission. STATUS: This meeting will be open to the regulatory changes and to add a new [FR Doc. 03–16930 Filed 7–2–03; 8:45 am] public. system of records covering Office of BILLING CODE 6560–50–S Inspector General investigative files. ITEMS TO BE DISCUSSED: Elsewhere in this issue of the Federal Correction and Approval of Minutes. Register, the Finance Board is Draft Advisory Opinion 2003–12: publishing an interim final rule with FEDERAL ELECTION COMMISSION Stop Taxpayer Money for Politicians request for comments that revises the agency’s Privacy Act regulation to Committee (‘‘STMP’’) and Sunshine Act Meeting reflect an agency reorganization in Representative Jeff Flake of Arizona by Special Executive Session which responsibility and authority for counsel, Benjamin L. Ginsberg. running the agency’s Privacy Act DATE AND TIME: Thursday, July 3, 2003 Draft Advisory Opinion 2003–17: program was transferred to the Office of at 10 a.m. James W. Treffinger and Treffinger for General Counsel. The Finance Board PLACE: 999 E Street, NW., Washington, Senate Committee by counsel, Karin also is revising the rule to make it more DC. Riecker. ‘‘user-friendly’’ by using plain language STATUS: This meeting was closed to the Routine Administrative Matters. and, where appropriate, a question-and- public pursuant to 11 CFR 2.4(b)(1). answer format. PERSON TO CONTACT FOR INFORMATION: DATES: This amendment will become DATE AND TIME: Tuesday, July 8, 2003 at Mr. Ron Harris, Press Officer, effective as proposed without further 10 a.m. Telephone: (202) 694–1220. notice on August 4, 2003 unless PLACE: 999 E Street, NW., Washington, Mary W. Dove, comments dictate otherwise. The DC. Finance Board will accept comments in Secretary of the Commission. STATUS: This meeting will be closed to writing on or before August 4, 2003. [FR Doc. 03–17026 Filed 7–1–03; 10:46 am] the public. ADDRESSES: Send comments by BILLING CODE 6715–01–M ITEMS TO BE DISCUSSED: electronic mail to [email protected],
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by facsimile to 202/408–2580, or by 1. Amend the system of records Housing Finance Board, 1777 F Street, regular mail to the Federal Housing entitled FHFB–1 Employee Attendance NW, Washington, DC 20006, in Finance Board, 1777 F Street, NW., Records as follows: accordance with the procedures set Washington, DC 20006, ATTN: PUBLIC forth in 12 CFR part 913. COMMENTS. Comments will be FHFB–1 CONTESTING RECORD PROCEDURES: available for public inspection at this SYSTEM NAME: address. Direct requests to amend a record to Employee Attendance Records. the Privacy Act Official, Federal FOR FURTHER INFORMATION CONTACT: * * * * * Housing Finance Board, 1777 F Street, Janice A. Kaye, Senior Attorney- Routine uses of records maintained in NW, Washington, DC 20006, in Advisor, Office of General Counsel, by the system, including categories of users accordance with the procedures set telephone at 202/408–2505, by and the purpose of such uses: forth in 12 CFR part 913. electronic mail at [email protected], or by These records, or information * * * * * regular mail at the Federal Housing 2. Amend the system of records Finance Board, 1777 F Street, NW., therefrom, may be disclosed as a routine use to: entitled FHFB–2 General Travel and Washington, DC 20006. Transportation Files as follows: * * * * * SUPPLEMENTARY INFORMATION: Pursuant 5. In the event the information in the FHFB–2 to the requirements of the Privacy Act, system of records indicates a violation the Finance Board is publishing a notice or potential violation of a criminal or SYSTEM NAME: of an amendment to its system of civil law, rule, or regulation, the General Travel and Transportation records. See 5 U.S.C. 552a(e)(4) and relevant records may be disclosed to the Files. (11). Some of the changes are being appropriate federal, state, or local * * * * * made to reflect agency reorganizations. agency or authority responsible for More specifically, the Finance Board is CATEGORIES OF INDIVIDUALS COVERED BY THE investigating or prosecuting such a amending its system of records to reflect SYSTEM: violation or for enforcing or the following changes: 1. Current and former Finance Board • implementing a statute, rule or Responsibility for administering the regulation. employees. Finance Board’s Privacy Act program 6. A court, magistrate or 2. Individuals invited to travel by the was transferred to the Office of General administrative tribunal in the course of Finance Board, including individuals Counsel. As part of the transfer of presenting evidence, including traveling to the Finance Board for pre- responsibility, an OGC staff member has disclosures to counsel or witnesses in employment interviews and individuals replaced the Secretary to the Board of the course of civil discovery, litigation, invited to attend a Finance Board Directors as the Finance Board’s Privacy or settlement negotiations or in ceremony, meeting or similar event. Act Official. connection with criminal proceedings. * * * * * • The name of the Office of Resource * * * * * ROUTINE USES OF RECORDS MAINTAINED IN THE Management has been changed to the SYSTEM, INCLUDING CATEGORIES OF USERS AND POLICIES AND PRACTICE FOR STORING, Office of Management. THE PURPOSE OF SUCH USES: • The duties of the Personnel RETRIEVING, ACCESSING, RETAINING AND DISPOSING OF RECORDS IN THE SYSTEM: These records, or information Security Officer have been transferred * * * * * therefrom, may be disclosed as a routine from the Office of General Counsel to use to: the Office of Management. RETENTION AND DISPOSAL: • * * * * * The Office of the Chairman 1. Leave application files (i.e., SF71s 3. In the event the information in the assumed the duties of the former Office or equivalent and supporting system of records indicates a violation of Public Affairs, which was abolished documentation) are destroyed after three or potential violation of a criminal or in August 2002, and certain records years or GAO audit, whichever is civil law, rule, or regulation, the maintained by the former Office of sooner. relevant records may be disclosed to the Public Affairs were eliminated. 2. Time and attendance source appropriate federal, state, or local The Finance Board also is amending records and input records are destroyed agency or authority responsible for its system of records to reflect a after six years or GAO audit, whichever investigating or prosecuting such a reorganization and renumbering of the is sooner. violation or for enforcing or agency’s regulations. See 65 FR 8253 implementing a statute, rule or SYSTEM MANAGER(S) AND ADDRESS: (February 18, 2000). regulation. Since the Finance Board’s Privacy Act Office of Management, Federal 4. A court, magistrate or rule includes an exemption for certain Housing Finance Board, 1777 F Street, administrative tribunal in the course of records contained in Office of Inspector NW., Washington, DC 20006. presenting evidence, including General (OIG) investigative files, the NOTIFICATION PROCEDURE: disclosures to counsel or witnesses in notice adds a new system of records Direct inquiries as to whether this the course of civil discovery, litigation, covering OIG investigative records. system contains a record pertaining to or settlement negotiations or in For the reasons stated above, the an individual to the Privacy Act connection with criminal proceedings. Finance Board hereby amends its Official, Federal Housing Finance * * * * * system of records originally published Board, 1777 F Street, NW., Washington, 6. Another federal agency in response in the Federal Register in September DC 20006, in accordance with the to a request made in connection with 1995, see 60 FR 46120 (September 5, procedures set forth in 12 CFR part 913. the hiring or retention of an individual, 1995), as amended in December 1997, the issuance of a security clearance, the see 62 FR 66865 (December 22, 1997) RECORD ACCESS PROCEDURES: reporting of an investigation of an and December 1998, see 62 FR 66865 Direct requests for access to a record individual, the letting of a contract or (December 22, 1997), as follows: to the Privacy Act Official, Federal issuance of a grant, license or other
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benefit by the requesting agency, but DC 20006, in accordance with the SYSTEM MANAGER(S) AND ADDRESS: only to the extent that the information procedures set forth in 12 CFR part 913. Office of the Chairman, Federal disclosed is necessary and relevant to Housing Finance Board, 1777 F Street, RECORD ACCESS PROCEDURES: the requesting agency’s decision on the NW., Washington, DC 20006. matter. Direct requests for access to a record 7. A congressional office in response to the Privacy Act Official, Federal NOTIFICATION PROCEDURE: to an inquiry made at the request of the Housing Finance Board, 1777 F Street, Direct inquiries as to whether this subject individual. NW., Washington, DC 20006, in system contains a record pertaining to * * * * * accordance with the procedures set an individual to the Privacy Act forth in 12 CFR part 913. Official, Federal Housing Finance POLICIES AND PRACTICE FOR STORING, Board, 1777 F Street, NW., Washington, RETRIEVING, ACCESSING, RETAINING AND CONTESTING RECORD PROCEDURES: DC 20006, in accordance with the DISPOSING OF RECORDS IN THE SYSTEM: Direct requests to amend a record to procedures set forth in 12 CFR part 913. * * * * * the Privacy Act Official, Federal Housing Finance Board, 1777 F Street, RECORD ACCESS PROCEDURES: SYSTEM MANAGER(S) AND ADDRESS: NW, Washington, DC 20006, in Direct requests for access to a record Office of Management, Federal accordance with the procedures set to the Privacy Act Official, Federal Housing Finance Board, 1777 F Street, forth in 12 CFR part 913. Housing Finance Board, 1777 F Street, NW., Washington, DC 20006. * * * * * NW., Washington, DC 20006, in NOTIFICATION PROCEDURE: 4. Amend the system of records accordance with the procedures set Direct inquiries as to whether this entitled FHFB–4 Federal Home Loan forth in 12 CFR part 913. system contains a record pertaining to Bank Appointive Director Eligibility CONTESTING RECORD PROCEDURES: an individual to the Privacy Act Certification Forms as follows: Direct requests to amend a record to Official, Federal Housing Finance the Privacy Act Official, Federal Board, 1777 F Street, NW., Washington, FHFB–4 Housing Finance Board, 1777 F Street, DC 20006, in accordance with the SYSTEM NAME: NW., Washington, DC 20006, in procedures set forth in 12 CFR part 913. Federal Home Loan Bank Appointive accordance with the procedures set RECORD ACCESS PROCEDURES: Director Eligibility Certification Forms. forth in 12 CFR part 913. Direct requests for access to a record * * * * * * * * * * to the Privacy Act Official, Federal 5. Remove the system of records CATEGORIES OF INDIVIDUALS COVERED BY THE Housing Finance Board, 1777 F Street, entitled FHFB–5 Board of Directors. SYSTEM: NW., Washington, DC 20006, in 6. Amend the system of records accordance with the procedures set Current Federal Home Loan Bank entitled FHFB–6 Agency Personnel forth in 12 CFR part 913. (FHLBank) appointive directors and Investigative Records as follows: candidates for appointment. CONTESTING RECORD PROCEDURES: FHFB–5 Direct requests to amend a record to CATEGORIES OF RECORDS IN THE SYSTEM: SYSTEM NAME: the Privacy Act Official, Federal Records contain certifications of Housing Finance Board, 1777 F Street, eligibility and information concerning Personnel Investigative Records. NW, Washington, DC 20006, in the financial or other personal interests * * * * * accordance with the procedures set of current FHLBank appointive CATEGORIES OF RECORDS IN THE SYSTEM: forth in 12 CFR part 913. directors, candidates for appointment Records contain information relating * * * * * and their immediate families that may to the subject individual, including 3. Amend the system of records pose a conflict of interest under the name, address, date and place of birth, entitled FHFB–3 Administrative conflicts of interest policy of the Social Security number, citizenship, Grievance Files as follows: director’s FHLBank. residence, foreign travel and contacts, FHFB–3 AUTHORITY FOR MAINTENANCE OF THE SYSTEM: education, personal references, 12 U.S.C. 1427(a) and (d); 12 CFR organizational membership and security SYSTEM NAME: 915.10–915.12. clearance history; investigative Administrative Grievance Files. information regarding the subject * * * * * PURPOSE(S): individual’s character, conduct and Records are collected to determine behavior in the community where he or POLICIES AND PRACTICE FOR STORING, whether FHLBank appointive directors she lives or lived, and arrests and RETRIEVING, ACCESSING, RETAINING AND DISPOSING OF RECORDS IN THE SYSTEM: and candidates for appointment are in convictions for violations of the law; compliance with statutory and reports from commercial credit * * * * * regulatory eligibility requirements. agencies, interviews with the subject SYSTEM MANAGER(S) AND ADDRESS: * * * * * individual and with present and former Office of Management, Federal supervisors, co-workers, associates, Housing Finance Board, 1777 F Street, POLICIES AND PRACTICE FOR STORING, educators, etc., and inquiries with law RETRIEVING, ACCESSING, RETAINING AND NW., Washington, DC 20006. enforcement agencies, employers, DISPOSING OF RECORDS IN THE SYSTEM: educational institutions attended; NOTIFICATION PROCEDURE: * * * * * reports about the subject individual’s Direct inquiries as to whether this qualifications for a specific position; RETRIEVABILITY: system contains a record pertaining to correspondence relating to adjudication an individual to the Privacy Act Records are filed by FHLBank and matters; reports of action after the OPM Official, Federal Housing Finance alphabetically by name. or Federal Bureau of Investigation Board, 1777 F Street, NW, Washington, * * * * * section 8(d) Full Field Investigation;
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and other information developed from of personnel actions and investigative AUTHORITY FOR MAINTENANCE OF THE SYSTEM: the above. and other record material furnished by 5 U.S.C. App. 4(a)(1) and 6(a)(2). * * * * * Federal agencies; and personal investigation, written inquiry, or PURPOSE(S): PURPOSE(S): computer linkage from sources such as These records are collected, 1. Records are collected in order to former employees, former employers, maintained and used by the OIG in its make, and are maintained in order to educational institutions, references, inquiries and investigations and reports provide documentation, if necessary, to neighbors, associates, police relating to the administration of the the OPM in order to support the Finance departments, courts, credit bureaus, Finance Board’s programs and Board’s determinations concerning medical records, probation officials, operations and to manage the compliance with Federal personnel prison officials, newspapers, magazines, investigatory program. regulations, the suitability and fitness of periodicals and other publications. ROUTINE USES OF RECORDS MAINTAINED IN THE the subject individual for federal EXEMPTIONS CLAIMED FOR THE SYSTEM: SYSTEM, INCLUDING CATEGORIES OF USERS AND employment and access and security PURPOSES OF SUCH USES: clearances, and the qualifications for Pursuant to 5 U.S.C. 552a(k)(5), a record contained in this system is Under normal circumstances, the OIG performance of contractual services for will not provide individually the U.S. Government. exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f), identifiable records. However, under 2. To provide information necessary those unusual circumstances when the to schedule and conduct required to the extent that disclosure would reveal the identity of a source who OIG must release information contained investigations. in an individually identifiable record, 3. To locate individuals for personnel furnished information to the the OIG will maintain proper safeguards research. government under an express promise to protect the information from * * * * * that his or her identity would be held in confidence. unwarranted invasion of personal POLICIES AND PRACTICE FOR STORING, 7. Add a new system of records privacy. Subject to this general RETRIEVING, ACCESSING, RETAINING AND entitled FHFB–6 Office of Inspector limitation, these records, or information DISPOSING OF RECORDS IN THE SYSTEM: General Investigative Records to read as therefrom, may be disclosed as a routine * * * * * follows: use to: 1. The appropriate federal, state or RETENTION AND DISPOSAL: FHFB–6 local agency or authority responsible for Records are retained until the subject SYSTEM NAME: investigating or prosecuting a violation or potential violation of a criminal or individual terminates employment at Office of Inspector General civil law, rule or regulation or for the Finance Board, at which time the Investigative Records. records are handled in accordance with enforcing or implementing a statute, OPM policy and procedures. SECURITY CLASSIFICATION: rule or regulation if information in the None. system of records indicates such a SYSTEM MANAGER(S) AND ADDRESS: violation. Office of Management, Federal SYSTEM LOCATION: 2. A court, magistrate or Housing Finance Board, 1777 F Street, Federal Housing Finance Board, 1777 administrative tribunal in the course of NW., Washington, DC 20006. F Street NW, Washington, DC 20006. presenting evidence, including disclosures to counsel or witnesses in NOTIFICATION PROCEDURE: CATEGORIES OF INDIVIDUALS COVERED BY THE the course of civil discovery, litigation, Direct inquiries as to whether this SYSTEM: 1. Current and former Finance Board or settlement negotiations or in system contains a record pertaining to connection with criminal proceedings. an individual to the Privacy Act employees, others involved in the Finance Board’s programs or operations, 3. A congressional office in response Official, Federal Housing Finance to an inquiry made at the request of the Board, 1777 F Street, NW., Washington, and any other persons who are or have been under investigation by the Finance subject individual. DC 20006, in accordance with the 4. Any source, including a federal, procedures set forth in 12 CFR part 913. Board’s Office of Inspector General (OIG) in order to determine whether state or local agency maintaining civil, RECORD ACCESS PROCEDURES: these individuals have been or are criminal or other relevant enforcement Direct requests for access to a record engaging in waste, fraud or abuse with information or other pertinent to the Office of Personnel Management, respect to the Finance Board’s programs information, but only to the extent Federal Investigations Processing or operations or other activities that necessary for the OIG to obtain Center, FOI/PA, Boyers, Pennsylvania violate federal criminal laws. information relevant to an OIG 16018. 2. Complainants and witnesses where investigation. necessary for future retrieval. 5. Another federal agency in response CONTESTING RECORD PROCEDURES: to a request made in connection with Direct requests to amend a record to CATEGORIES OF RECORDS IN THE SYSTEM: the hiring or retention of an individual, the Privacy Act Official, Federal Files on individual investigations the issuance of a security clearance, the Housing Finance Board, 1777 F Street, including investigative reports and reporting of an investigation of an NW., Washington, DC 20006, in related documents generated during the individual, the letting of a contract or accordance with the procedures set course of or subsequent to an issuance of a grant, license or other forth in 12 CFR part 913. investigation. It includes electronic and benefit by the requesting agency, but hard copy case tracking systems, only to the extent that the information RECORD SOURCE CATEGORIES: databases containing investigatory disclosed is necessary and relevant to Subject individual, including information, ‘‘Hotline’’ telephone logs, the requesting agency’s decision on the applications and other personnel and and investigator workpapers and matter. security forms and personal interview; memoranda and letter referrals to 6. Other federal entities, such as other police, military or naval reports; notices management or others. federal Offices of Inspector General or
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the General Accounting Office, or to a an individual to the Privacy Act FEDERAL RESERVE SYSTEM private party with which the OIG or the Official, Federal Housing Finance Finance Board has contracted for the Board, 1777 F Street, NW, Washington, Agency Information Collection purpose of auditing or reviewing the DC 20006, in accordance with the Activities: Announcement Of Board performance or internal management of procedures set forth in 12 CFR part 913. Approval Under Delegated Authority the OIG’s investigatory program, And Submission To OMB provided the record will not be RECORD ACCESS PROCEDURES: SUMMARY: Background. Notice is hereby transferred in a form that is individually Direct requests for access to a record given of the final approval of proposed identifiable, and provided further that to the Privacy Act Official, Federal information collection by the Board of the entity acknowledges in writing that Housing Finance Board, 1777 F Street, Governors of the Federal Reserve it is required to maintain Privacy Act NW, Washington, DC 20006, in System (Board) under OMB delegated safeguards for the information. accordance with the procedures set authority, as per 5 CFR 1320.16 (OMB In addition to the foregoing routine forth in 12 CFR part 913. Regulations on Controlling Paperwork uses, a record which is contained in this Burdens on the Public). Board– system and derived from another CONTESTING RECORD PROCEDURES: approved collections of information are Finance Board system of records may be Direct requests to amend a record to incorporated into the official OMB disclosed as a routine use as specified the Privacy Act Official, Federal inventory of currently approved in the Federal Register notice of the Housing Finance Board, 1777 F Street, collections of information. Copies of the system of records from which the NW, Washington, DC 20006, in OMB 83–I;s and supporting statements records derived. accordance with the procedures set and approved collection of information DISCLOSURE TO CONSUMER REPORTING forth in 12 CFR part 913. instrument(s) are placed into OMB’s AGENCIES: public docket files. The Federal Reserve RECORD SOURCE CATEGORIES: None. may not conduct or sponsor, and the The OIG collects information from respondent is not required to respond POLICIES AND PRACTICE FOR STORING, many sources including the subject to, an information collection that has RETRIEVING, ACCESSING, RETAINING AND individuals, employees of the Finance DISPOSING OF RECORDS IN THE SYSTEM: been extended, revised, or implemented Board and the Federal Home Loan Bank on or after October 1, 1995, unless it STORAGE: System, other government sources, displays a currently valid OMB control Records are maintained in file folders, witnesses and informants, and number. computer disks, electronic media and nongovernmental sources. FOR FURTHER INFORMATION CONTACT: reports on each investigation. Federal Reserve Board Clearance Officer EXEMPTIONS CLAIMED FOR THE SYSTEM: RETRIEVABILITY: –Cindy Ayouch––Division of Research Pursuant to 5 U.S.C. 552a(k)(5), a Records generally are indexed by and Statistics, Board of Governors of the record contained in this system is Federal Reserve System, Washington, name of person under investigation, exempt from 5 U.S.C. 552a(c)(3), (d), investigation number, referral number DC 20551 (202–452–3829). (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f), OMB Desk Officer–Joseph Lackey–– or investigative subject matter. to the extent that the records consists of Office of Information and Regulatory SAFEGUARDS: investigatory material compiled: Affairs, Office of Management and File folders are maintained in safes or (1) For law enforcement purposes; or Budget, New Executive Office Building, lockable metal file cabinets stored in (2) For the purpose of determining Room 10235, Washington, DC 20503. offices that are locked when not in use. suitability, eligibility or qualifications Final approval under OMB delegated Computer disks and electronic media for federal civilian employment or authority of the extension for three are locked in the lockable metal file federal contracts, and if disclosure of years, without revision, of the following cabinets with their related file folders, the record would reveal the identity of report: and information not so lockable is kept a source who furnished information to in individual offices in locked or the government under an express Report title: Reporting and Disclosure passworded computer hardware. Access promise that his or her identity would Requirements in Connection with to the information in the cabinets and be held in confidence. Regulation W (12 CFR Part 223 Transactions Between Member Banks individual offices is permitted only by Notwithstanding the exemption, the and Their Affiliates) and to specifically authorized Finance Board will provide a record if personnel. Agency form number: Reg W any right, privilege or benefit to which OMB Control number: 7100–0304 RETENTION AND DISPOSAL: an individual would otherwise be Frequency: Event–generated entitled by Federal law, or for which the Records in file folders are retained as Reporters: Insured depository individual otherwise would be eligible, long as needed and then destroyed by institutions and uninsured member is denied as a result of the maintenance shredding. Computer disks are cleared, banks of the record, except to the extent that retired, or destroyed when no longer Estimated annual reporting hours: disclosure of the record would reveal useful. Entries on electronic media are 250 hours the identity of a source who furnished Estimated average hours per response: deleted or erased when no longer information to the government under an Loan participation renewal notice, 2 needed. express promise that his or her identity hours. Acquisition notice, 6 hours. SYSTEM MANAGER(S) AND ADDRESS: would be held in confidence. Internal corporate reorganization Office of Inspector General, Federal Dated: June 18, 2003. transactions notice, 6 hours. Section Housing Finance Board, 1777 F Street, By the Federal Housing Finance Board. 23A additional exemption notice, 10 NW, Washington, DC 20006. hours. Arnold Intrater, Estimated number of respondents: 45 NOTIFICATION PROCEDURE: General Counsel. Small businesses are affected. Direct inquiries as to whether this [FR Doc. 03–16561 Filed 7–2–03; 8:45 am] General description of report: This system contains a record pertaining to BILLING CODE 6725–01–P information collection is required to
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evidence compliance with sections 23A indicated. The application also will be (12 CFR 225.28) or that the Board has and 23B of the Federal Reserve Act (12 available for inspection at the offices of determined by Order to be closely U.S.C. 371c(f) and 371c–1(e)). the Board of Governors. Interested related to banking and permissible for Confidential and proprietary persons may express their views in bank holding companies. Unless information collected for the purposes writing on the standards enumerated in otherwise noted, these activities will be of the Loan Participation Renewal 12 the BHC Act (12 U.S.C. 1842(c)). If the conducted throughout the United States. CFR 223.15(b)(4) and Internal Corporate proposal also involves the acquisition of Each notice is available for inspection Reorganization Transactions 12 CFR a nonbanking company, the review also 223.41(d)(2) notices may be protected includes whether the acquisition of the at the Federal Reserve Bank indicated. under the authority of the Freedom of nonbanking company complies with the The notice also will be available for Information Act [5U.S.C. § 552(b)(4) and standards in section 4 of the BHC Act inspection at the offices of the Board of (b)(8)]. Section (b)(4) exempts (12 U.S.C. 1843). Unless otherwise Governors. Interested persons may information deemed competitively noted, nonbanking activities will be express their views in writing on the sensitive from disclosure and Section conducted throughout the United States. question whether the proposal complies (b)(8) exempts information ‘‘contained Additional information on all bank with the standards of section 4 of the in or related to examination, operating, holding companies may be obtained BHC Act. Additional information on all or condition reports prepared by, on from the National Information Center bank holding companies may be behalf of, or for the use of an agency website at www.ffiec.gov/nic/. obtained from the National Information responsible for the regulation or Unless otherwise noted, comments Center website at www.ffiec.gov/nic/. supervision of financial institutions.’’ regarding each of these applications Unless otherwise noted, comments Abstract: On December 12, 2002, the must be received at the Reserve Bank regarding the applications must be Board of Governors of the Federal indicated or the offices of the Board of received at the Reserve Bank indicated Reserve published a Federal Register Governors not later than July 28, 2003. notice adopting a final rule (Regulation A. Federal Reserve Bank of Boston or the offices of the Board of Governors W) to implement comprehensively (Richard Walker, Community Affairs not later than July 28, 2003. sections 23A and 23B of the Federal Officer) 600 Atlantic Avenue, Boston, A. Federal Reserve Bank of St. Louis Reserve Act and provide several new Massachusetts 02106-2204: (Randall C. Sumner, Vice President) 411 exemptions consistent with the 1. Beverly Financial, MHC, Beverly, Locust Street, St. Louis, Missouri 63166- purposes of the statute (67 FR 76603), Massachusetts; to become a bank 2034: effective April 1, 2003. The Paperwork holding company by acquiring 100 1. Arvest Bank Group, Inc., Reduction Act section of this notice percent of the voting shares of Beverly Bentonville, Arkansas; to acquire contained a request for public comment Co–Operative Bank, Beverly, Superior Financial Corp., Little Rock, on the information collection in Reg W. Massachusetts. The Federal Reserve did not receive any B. Federal Reserve Bank of Atlanta Arkansas, and thereby indirectly acquire comments on this request. Pursuant to (Sue Costello, Vice President) 1000 Superior Bank, Fort Smith, Arkansas, 5 CFR 1320.16 this is a final notice Peachtree Street, N.E., Atlanta, Georgia and thereby engage in operating a announcing the Board’s approval of the 30303: savings association, pursuant to section information collection. 1. RB Bancorporation, Athens, 225.28(b)(4)(ii) of Regulation Y. Applicant also has applied to engage in Board of Governors of the Federal Reserve Alabama; to become a bank holding System, June 27, 2003. company by acquiring 100 percent of operating a consumer finance company Jennifer J. Johnson the voting shares of Reliance Bank, through Superior Finance Company, Secretary of the Board. Athens, Alabama. Fort Smith, Arkansas; in discount [FR Doc. 03–16882 Filed 7–2–03; 8:45 am] Board of Governors of the Federal Reserve brokerage and investment advisory System, June 27, 2003. services through Superior Financial BILLING CODE 6210–01–S Robert deV. Frierson, Services, Inc., Fort Smith, Arkansas; Deputy Secretary of the Board. acting as a general insurance agency or FEDERAL RESERVE SYSTEM [FR Doc. 03–16837 Filed 7–2–03; 8:45 am] broker to sell all lines of insurance or BILLING CODE 6210–01–S insurance related products in a town of Formations of, Acquisitions by, and less than 5,000 in population through Mergers of Bank Holding Companies Superior Insurance Service, Inc., Paris, The companies listed in this notice FEDERAL RESERVE SYSTEM Arkansas; and sell consumer credit life have applied to the Board for approval, and disability insurance to consumer Notice of Proposals to Engage in borrowers of the savings association pursuant to the Bank Holding Company Permissible Nonbanking Activities or through Southwest Protective Life Act of 1956 (12 U.S.C. 1841 et seq.) to Acquire Companies that are Insurance Company, Fort Smith, (BHC Act), Regulation Y (12 CFR Part Engaged in Permissible Nonbanking 225), and all other applicable statutes Activities Arkansas, pursuant to sections 225.28 and regulations to become a bank (b)(1), (b)(7)(i), (b)(11)(i), and holding company and/or to acquire the The companies listed in this notice (b)(11)(iii)(A) of Regulation Y. have given notice under section 4 of the assets or the ownership of, control of, or Board of Governors of the Federal Reserve Bank Holding Company Act (12 U.S.C. the power to vote shares of a bank or System, June 27, 2003. bank holding company and all of the 1843) (BHC Act) and Regulation Y (12 banks and nonbanking companies CFR Part 225) to engage de novo, or to Robert deV. Frierson, owned by the bank holding company, acquire or control voting securities or Deputy Secretary of the Board. including the companies listed below. assets of a company, including the [FR Doc.03–16836 Filed 7–2–03; 8:45 am] The applications listed below, as well companies listed below, that engages BILLING CODE 6210–01–S as other related filings required by the either directly or through a subsidiary or Board, are available for immediate other company, in a nonbanking activity inspection at the Federal Reserve Bank that is listed in § 225.28 of Regulation Y
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DEPARTMENT OF HEALTH AND who wish to have printed material Grantees are required to provide at HUMAN SERVICES distributed to SACHRP members should least 25 percent of the total program submit materials to the Acting Executive costs from non-federal cash or in-kind Office of the Secretary Secretary of SACHRP (contact resources in order to be considered for information listed above) prior to close the award. Executive Order 12372 is not Meeting of the Secretary’s Advisory of business July 16, 2003. applicable to these grant applications. Committee on Human Research Information about SACHRP and the Screening criteria: In order for an Protections draft meeting agenda will be posted on application to be reviewed, it must meet AGENCY: Office of the Secretary, HHS. the SACHRP Web site at: http:// the following screening requirements: ohrp.osophs.dhhs.gov/sachrp/ 1. Applications must be postmarked ACTION: Notice of meeting. sachrp.htm. or submitted electronically by midnight, SUMMARY: Pursuant to section 10(a) of Dated: June 26, 2003. or hand-delivered by 5 p.m., on August the Federal Advisory Committee Act, as Bernard A. Schwetz, 4, 2003. Electronic submissions must be sent to: http//www.aoa.gov/egrants. amended (5 U.S.C. appendix 2), notice Acting Executive Secretary, Secretary’s is hereby given of the inaugural meeting Advisory Committee on Human Research 2. The Project Narrative section of the of the Secretary’s Advisory Committee Protections, Acting Director, Office for Application must be double-spaced, on 1 ″ × ″ on Human Research Protections Human Research Protections. single-sided 8 ⁄2 11 plain white ″ (SACHRP). The meeting will be open to [FR Doc. 03–16792 Filed 7–2–03; 8:45 am] paper with 1 margins on both sides, and must have a font size of not less the public, with attendance limited to BILLING CODE 4150–36–P space available. Individuals must than 11. provide a photo ID for entry into the 3. The project narrative must not meeting. Individuals who plan to attend DEPARTMENT OF HEALTH AND exceed 25 pages. and need special assistance, such as HUMAN SERVICES Review of applications: Applications sign language interpretation or other will be evaluated against the following reasonable accommodations, should Administration on Aging criteria: Purpose and Need for Assistance (20 points); Approach, Work notify the contact person listed below. [Program Announcement No. AoA–03–06] Plan and Activities (30 points); Project DATES: The meeting will be held on Outcomes, Evaluation and Tuesday, July 22, 2003, and will Fiscal Year 2003 Program Announcement; Availability of Funds Dissemination (30 points); Level of convene EDT from approximately 8:30 Effort (20 points). a.m. to 5 p.m. and Notice Regarding Applications DATES: The deadline date for the ADDRESSES: Hubert H. Humphrey AGENCY: Administration on Aging, HHS. submission of applications is August 4, Building, Room 800, 200 Independence ACTION: Announcement of availability of 2003. Ave., SW., Washington, DC 20201. funds and request for applications. ADDRESSES: Application kits are FOR FURTHER INFORMATION CONTACT: SUMMARY: The Administration on Aging available by writing to the U.S. Bernard Schwetz, D.V.M., PhD., Acting Department of Health and Human Executive Secretary, Secretary’s announces that under this program announcement it will hold a Services, Administration on Aging, Advisory Committee on Human Office of Evaluation, Washington, DC Research Protections, Department of competition for grant awards for eight (8) to ten (10) projects at a federal share 20201, by calling (202) 357–0145, or Health and Human Services, Office of online at http://www.aoa.gov/egrants. Public Health and Science, 1101 of approximately $30,000 per year for a project period of one year. Applications may be mailed to the Wootton Parkway, Suite 200, Rockville, U.S. Department of Health and Human MD 20852 (301) 496–7005, fax: (301) Legislative authority: The Older Americans Act, Public Law 106–501 Services, Administration on Aging, 402–0527, email address: Office of Grants Management, [email protected]. (Catalog of Federal Domestic Assistance 93.048, Title IV and Title II, Washington, DC 20201, attn: Margaret SUPPLEMENTARY INFORMATION: Under the Discretionary Projects). Tolson (AoA–03–06). authority of 42 U.S.C. 217a, section 222 Purpose of grant awards: To continue Applications may be delivered to the of the Public Health Service Act, as the Performance Measures Outcomes U.S. Department of Health and Human amended, the Department of Health and Project (POMP), AoA will fund new Services, Administration on Aging, Human Services established SACHRP to grant awards to support the Office of Grants Management, One provide expert advice and development of new or revised program Massachusetts Avenue, NW., Room recommendations to the Secretary of performance measures for programs 4604, Washington, DC 20001, attn: HHS and the Assistant Secretary for funded under Title III of the Older Margaret Tolson (AoA–03–06). If you Health on issues and topics pertaining Americans Act. The purpose of this elect to mail or hand deliver your to or associated with the protection of competition is for States to work application you must submit one human research subjects. collaboratively in the development of original and two copies of the At this inaugural meeting, SACHRP recipient surveys to: (1) Refine current application; an acknowledgement card will review the activities which were performance measurement tools for (a) will be mailed to applicants. not completed by the former National home delivered meals/congregate meals Instructions for electronic mailing of Human Research Protections Advisory programs, (b) the National Family grant applications are available at http:/ Committee before its charter expired. Caregiver Support Program, and (c) case /www.aoa.gov/egrants/ SACHRP also will begin to plan and management, and (2) develop new SUPPLEMENTARY INFORMATION: All grant prioritize its activities for the next 24 performance measurement tools applicants are encouraged to obtain a D– months. Members of the public will focusing on clients of senior centers. U–N–S number from Dun and have the opportunity to provide Eligibility for grant awards and other Bradstreet. It is a nine-digit comments at the meeting. Public requirements: Eligibility for grant identification number, which provides comment will be limited to five minutes awards is limited to State Units on unique identifiers of single business per speaker. Any members of the public Aging. entities. The D–U–N–S number is free
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and easy to obtain from http:// Medicare claims and covered services. concerning each proposed collection of www.dnb.com/US/duns_update/. CMS is adding information from already information, including each proposed FOR FURTHER INFORMATION CONTACT: U.S. existing sources; in addition, CMS extension of an existing collection of Department of Health and Human wants to collect a new data element information, and to allow 60 days for Services, Administration on Aging, ‘‘Accepting New Patients Indicator’’ public comment in response to the Office of Evaluation, Washington, DC which is essential to a beneficiary’s notice. This notice solicits comments on 20201, telephone: (202) 357–0145. search for a physician; Frequency: On Form FDA 3397, User Fee Cover Sheet occasion; Affected Public: Business or that must be submitted along with Dated: June 30, 2003. other for-profit; Number of certain drug and biologic product Josefina G. Carbonell, Respondents: 109,800; Total Annual applications and supplements. Assistant Secretary for Aging. Responses: 10,980; Total Annual Hours: DATES: Submit written or electronic [FR Doc. 03–16839 Filed 7–2–03; 8:45 am] 915. comments on the collection of BILLING CODE 4154–01–P To obtain copies of the supporting information by September 2, 2003. statement and any related forms for the ADDRESSES: Submit electronic proposed paperwork collections comments to http://www.fda.gov/ DEPARTMENT OF HEALTH AND referenced above, access CMS’s Web site HUMAN SERVICES dockets/ecomments. Submit written address at http://cms.hhs.gov/ comments to the Division of Dockets regulations/pra/default.asp, or E-mail Centers for Medicare and Medicaid Management (HFA–305), Food and Drug your request, including your address, Services Administration, 5630 Fishers Lane, rm. phone number, OMB number, and CMS 1061, Rockville, MD 20852. All [CMS–10091] document identifier, to comments should be identified with the [email protected], or call the docket number found in brackets in the Agency Information Collection Reports Clearance Office on (410) 786– heading of this document. Activities: Proposed Collection; 1326. Written comments and FOR FURTHER INFORMATION CONTACT: Comment Request recommendations for the proposed JonnaLynn P. Capezzuto, Office of AGENCY: Centers for Medicare and information collections must be mailed Management Programs (HFA–250), Food Medicaid Services, HHS. within 60 days of this notice directly to and Drug Administration, 5600 Fishers In compliance with the requirement the CMS Paperwork Clearance Officer Lane, Rockville, MD 20857, 301–827– of section 3506(c)(2)(A) of the designated at the following address: 4659. CMS, Office of Strategic Operations Paperwork Reduction Act of 1995, the and Regulatory Affairs, Division of SUPPLEMENTARY INFORMATION: Under the Centers for Medicare and Medicaid Regulations Development and PRA (44 U.S.C. 3501–3520), Federal Services (CMS) (formerly known as the Issuances, Attention: Dawn Willinghan, agencies must obtain approval from the Health Care Financing Administration Room: C5–14–03, 7500 Security Office of Management and Budget (CMS)), Department of Health and Boulevard, Baltimore, Maryland 21244– (OMB) for each collection of Human Services, is publishing the 1850. information they conduct or sponsor. following summary of proposed ‘‘Collection of information’’ is defined collections for public comment. Dated: June 26, 2003. in 44 U.S.C. 3502(3) and 5 CFR Interested persons are invited to send Dawn Willinghan, 1320.3(c) and includes agency requests comments regarding this burden CMS Reports Clearance Officer, Division of or requirements that members of the estimate or any other aspect of this Regulations Development and Issuances, public submit reports, keep records, or collection of information, including any Office of Strategic Operations and Strategic provide information to a third party. of the following subjects: (1) The Affairs. Section 3506(c)(2)(A) of the PRA (44 necessity and utility of the proposed [FR Doc. 03–16815 Filed 7–2–03; 8:45 am] U.S.C. 3506(c)(2)(A)) requires Federal information collection for the proper BILLING CODE 4120–03–P agencies to provide a 60-day notice in performance of the agency’s functions; the Federal Register concerning each (2) the accuracy of the estimated proposed collection of information burden; (3) ways to enhance the quality, DEPARTMENT OF HEALTH AND including each proposed extension of an utility, and clarity of the information to HUMAN SERVICES existing collection of information, be collected; and (4) the use of Food and Drug Administration before submitting the collection to OMB automated collection techniques or for approval. To comply with this other forms of information technology to [Docket No. 2003N–0286] requirement, FDA is publishing notice minimize the information collection of the proposed collection of burden. Agency Information Collection information set forth in this document. Type of Information Collection Activities: Proposed Collection; With respect to the following Request: New Collection; Title of Comment Request; User Fee Cover collection of information, FDA invites Information Collection: UPIN (UPIN Sheet; Form FDA 3397 comment on: (1) Whether the proposed Physician Identification Number) AGENCY: Food and Drug Administration, collection of information is necessary Participating Directory/Accepting New HHS. for the proper performance of FDA’s Patients Indicator; Form No.: CMS– ACTION: Notice. functions, including whether the 10091 (OMB# 0938–NEW); Use: In information will have practical utility; November of 2000, CMS launched the SUMMARY: The Food and Drug (2) the accuracy of FDA’s estimate of the Participating Physicians Directory on Administration (FDA) is announcing an burden of the proposed collection of http://www.medicare.gov. This opportunity for public comment on the information, including the validity of particular directory was created to proposed collection of certain the methodology and assumptions used; provide beneficiaries with the names, information by the agency. Under the (3) ways to enhance the quality, utility, addresses, and specialties of Medicare Paperwork Reduction Act of 1995 (the and clarity of the information to be participating physicians who have PRA), Federal agencies are required to collected; and (4) ways to minimize the agreed to accept assignment on all publish notice in the Federal Register burden of the collection of information
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on respondents, including through the supplements is required, review of an not all manufacturers will have any use of automated collection techniques, application by FDA cannot begin until submissions and some may have when appropriate, and other forms of the fee is submitted. Form FDA 3397, multiple submissions in a given year. information technology. the user fee cover sheet, is designed to The total number of annual responses is provide the minimum necessary based on the average number of User Fee Cover Sheet; Form FDA 3397 information to determine whether a fee submissions received by FDA in FY (OMB Control Number 0910–0297)— is required for review of an application, 2000 through 2002. CDER estimates Extension to determine the amount of the fee 2,494 annual responses that include the Under sections 735 and 736 of the required, and to account for and track following submissions: 105 new drug Federal Food, Drug, and Cosmetic Act user fees. The form provides a cross- applications; 1,557 chemistry (21 U.S.C. 379g and 379h), the reference of the fee submitted for an supplements; 670 labeling supplements; Prescription Drug User Fee Act of 1992 application with the actual application and 162 efficacy supplements. CBER (PDUFA) (Public Law 102–571), as by using a unique number tracking estimates 737 annual responses that amended by the Food and Drug system. The information collected is include the following submissions: 11 Administration Modernization Act of used by FDA’s Center for Drug biologics license applications; 640 1997 (Public Law 105–115), and the Evaluation and Research (CDER) and manufacturing (chemistry) supplements; Prescription Drug User Fee Center for Biologics Evaluation and 72 labeling supplements; and 14 Amendments of 2002 (Public Law 107– Research (CBER) to initiate the efficacy supplements. Based on 188), FDA has the authority to assess administrative screening of new drug previous estimates, the rate of and collect user fees for certain drug applications, biologics license submissions is not expected to change and biologics license applications and applications, and supplemental significantly in the next few years. The supplements. Under this authority, applications. estimated hours per response are based pharmaceutical companies pay a fee for Respondents to this collection of on past FDA experience with the certain new human drug applications, information are new drug and biologics various submissions and range from 5 to biologics license applications, or manufacturers. Based on FDA’s database 30 minutes. The hours per response are supplements submitted to the agency for system for fiscal year (FY) 2002, there based on the average of these estimates. review. Because the submission of user are an estimated 225 manufacturers of FDA estimates the burden of this fees concurrently with applications and products subject to PDUFA. However, collection of information as follows:
TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1
Annual Frequency per Form No. of Respondents Response Total Annual Responses Hours per Response Total Hours
FDA 3397 225 14.36 3,231 0.30 969 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
Dated: June 24, 2003. provides guidance to blood and plasma self-addressed adhesive label to assist Jeffrey Shuren, establishments on the recommendations the office in processing your requests. Assistant Commissioner for Policy. of FDA for implementing self- The guidance may also be obtained by [FR Doc. 03–16791 Filed 7–2–03; 8:45 am] administered donor questionnaires at mail by calling the CBER Voice BILLING CODE 4160–01–S the predonation donor screening Information System at 1–800–835–4709 interview. The guidance document also or 301–827–1800. See the describes the information to be included SUPPLEMENTARY INFORMATION section for DEPARTMENT OF HEALTH AND in a biologics license application electronic access to the guidance HUMAN SERVICES supplement or annual report for the document. implemented changes. The guidance Submit written comments on the Food and Drug Administration supersedes section I.A of FDA’s guidance to the Division of Dockets [Docket No. 2002D–0080] memorandum dated April 23, 1992, Management (HFA–305), Food and Drug entitled ‘‘Revised Recommendations for Administration, 5630 Fishers Lane, rm. Guidance for Industry: Streamlining the Prevention of Human 1061, Rockville, MD 20852. Submit the Donor Interview Process: Immunodeficiency Virus (HIV) electronic comments to http:// Recommendations for Self- Transmission by Blood and Blood www.fda.gov/dockets/ecomments. Administered Questionnaires; Products,’’ and finalizes the draft FOR FURTHER INFORMATION CONTACT: Availability guidance of the same title dated April Michael D. Anderson, Center for 2002. Biologics Evaluation and Research AGENCY: Food and Drug Administration, DATES: (HFM–17), Food and Drug HHS. Submit written or electronic comments on agency guidances at any Administration, 1401 Rockville Pike, ACTION: Notice. time. Rockville, MD 20852–1448, 301–827– 6210. SUMMARY: The Food and Drug ADDRESSES: Submit written requests for Administration (FDA) is announcing the single copies of the guidance to the SUPPLEMENTARY INFORMATION: availability of a document entitled Office of Communication, Training, and I. Background ‘‘Guidance for Industry: Streamlining Manufacturers Assistance (HFM–40), the Donor Interview Process: Center for Biologics Evaluation and FDA is announcing the availability of Recommendations for Self- Research (CBER), Food and Drug a document entitled ‘‘Guidance for Administered Questionnaires’’ dated Administration, 1401 Rockville Pike, industry: Streamlining the Donor July 2003. The guidance document Rockville, MD 20852–1448. Send one Interview Process: Recommendations
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for Self-Administered Questionnaires,’’ DEPARTMENT OF HOMELAND are to respond, including through the dated July 2003. The guidance is SECURITY use of appropriate automated, intended to provide recommendations electronic, mechanical, or other to the blood and plasma establishments Bureau of Citizenship and Immigration technological collection techniques or on the changes from the current Services other forms of information technology, predonation donor screening interview e.g., permitting electronic submission of Agency Information Collection procedure to a self-administered format. responses. Activities: Proposed Collection; The guidance also describes the Overview of this information information to be included in a Comment Request collection: biologics license application ACTION: 30-day notice of information supplement or annual report for the (1) Type of Information Collection: collection under review: Application implemented changes. The guidance Extension of a currently approved Requirements for the Adjustment of does not address the informed consent information collection. Status under Section 586 of Public Law process or specific screening questions, 106–249; OMB–27. (2) Title of the Form/Collection: a specific questionnaire, or how to Application Requirements for the submit changes to the questions on a The Department of Homeland Adjustment of Status under Section 586 currently approved questionnaire. The Security, Bureau of Citizenship and of Public Law 106–249. guidance supersedes section I.A of Immigration Services (BCIS) has (3) Agency form number, if any, and FDA’s memorandum dated April 23, submitted the following information the applicable component of the 1992, entitled ‘‘Revised collection request to the Office of Department of Homeland Security Recommendations for the Prevention of Management and Budget (OMB) for Human Immunodeficiency Virus (HIV) sponsoring the collection: No Agency review and clearance in accordance Form Number; File No. OMB–27, Transmission by Blood and Blood with the Paperwork Reduction Act of Products,’’ and finalizes the draft Bureau of Citizenship and Immigration 1995. The information collection was Services. guidance of the same title dated April previously approved by OMB under 2002. emergency review proceedings on (4) Affected public who will be asked The guidance is being issued December 13, 2002 and the agency was or required to respond, as well as a brief consistent with FDA’s good guidance granted temporary approval. abstract: Primary: Individuals or practices regulation (21 CFR 10.115). The BCIS intends to request an Households. The data is used by the The guidance represents the agency’s extension of this information collection. agency to determine an applicant’s current thinking on this topic. It does Therefore, the purpose of this notice is eligibility for adjustment of status under not create or confer any rights for or on to allow an additional 30 days for public section 586 of Public Law 106–249. any person and does not operate to bind comments. Comments are encouraged (5) An estimate of the total number of FDA or the public. An alternative and will be accepted until August 4, respondents and the amount of time approach may be used if such approach 2003. This process is conducted in estimated for an average respondent to satisfies the requirement of the accordance with 5 CFR 1320.10. respond: 5,000 responses at 30 (.05) applicable statutes and regulations. Written comments and/or suggestions minutes per response. regarding the items contained in this II. Comments notice, especially regarding the (6) An estimate of the total public burden (in hours) associated with the Interested persons may, at any time, estimated public burden and associated collection: 2,500 annual burden hours. submit written or electronic comments response time, should be directed to the to the Division of Dockets Management Office of Management and Budget, If you have additional comments, (see ADDRESSES) regarding this Office of Information and Regulatory suggestions, or need a copy of the guidance. Submit a single copy of Affairs, Attention: Department of proposed information collection electronic comments or two paper Homeland Security Desk Officer, 725 instrument with instructions, or copies of any mailed comments, except 17th Street, NW., Room 10235, additional information, please contact that individuals may submit one paper Washington, DC 20530. Richard A. Sloan 202–514–3291, copy. Comments are to be identified Written comments and suggestions Director, Regulations and Forms with the docket number found in the from the public and affected agencies Services Division, Bureau of Citizenship brackets in the heading of this concerning the proposed collection of and Immigration Services, Department document. A copy of the guidance and information should address one or more of Homeland Security, Room 4304, 425 received comments are available for of the following four points: I Street, NW., Washington, DC 20536. public examination in the Division of (1) Evaluate whether the proposed Additionally, comments and/or Dockets Management between 9 a.m. collection of information is necessary suggestions regarding the item(s) and 4 p.m., Monday through Friday. for the proper performance of the contained in this notice, especially functions of the agency, including regarding the item(s) contained in this III. Electronic Access whether the information will have notice, especially regarding the Persons with access to the Internet practical utility; estimated public burden and associated may obtain the guidance at either http:/ (2) Evaluate the accuracy of the response time may also be directed to /www.fda.gov/cber/guidelines.htm or agency’s estimate of the burden of the Mr. Richard A. Sloan. proposed collection of information, http://www.fda.gov/ohrms/dockets/ Dated: June 27, 2003. default.htm. including the validity of the methodology and assumptions used; Richard A. Sloan, Dated: June 24, 2003. (3) Enhance the quality, utility, and Department Clearance Officer, Department of Jeffrey Shuren, clarity of the information to be Homeland Security, Bureau of Citizenship Assistant Commissioner for Policy. collected; and and Immigration Services. [FR Doc. 03–16790 Filed 7–2–03; 8:45 am] (4) Minimize the burden of the [FR Doc. 03–16796 Filed 7–2–03; 8:45 am] BILLING CODE 4160–01–S collection of information on those who BILLING CODE 4410–10–M
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DEPARTMENT OF HOMELAND public and affected agencies concerning and associated response time may also SECURITY the proposed collection of information be directed to Mr. Richard A. Sloan. should address one or more of the Dated: June 27, 2003. Bureau of Citizenship and Immigration following four points: Services (1) Evaluate whether the proposed Richard A. Sloan, collection of information is necessary Department Clearance Officer, Department of Agency Information Collection for the proper performance of the Homeland Security, Bureau of Citizenship Activities: Comment Request functions of the agency, including and Immigration Services. whether the information will have [FR Doc. 03–16797 Filed 7–2–03; 8:45 am] ACTION: Request OMB emergency practical utility; BILLING CODE 4410–10–M approval; Application for Waiver of (2) Evaluate the accuracy of the Ground of Excludability, Form I–601. agencies estimate of the burden of the The Department of Homeland proposed collection of information, Security (DHS) Bureau of Citizenship including the validity of the DEPARTMENT OF HOUSING AND and Immigration Services (BCIS) has methodology and assumptions used; URBAN DEVELOPMENT submitted an emergency information (3) Enhance the quality, utility, and collection request (ICR) utilizing clarity of the information to be [Docket No. FR–4809–N–27] emergency review procedures, to the collected; and (4) Minimize the burden of the Office of Management and Budget Federal Property Suitable as Facilities collection of information on those who (OMB) for review and clearance in To Assist the Homeless are to respond, including through the accordance with section use of appropriate automated, 1320.13(a)(1)(ii) and (a)(2)(iii) of the AGENCY: Office of the Assistant electronic, mechanical, or other Paperwork Reduction Act of 1995. The Secretary for Community Planning and technological collection techniques or BCIS has determined that it cannot Development, HUD. other forms of information technology, reasonably comply with the normal e.g., permitting electronic submission of ACTION: Notice. clearance procedures under this part responses. because normal clearance procedures Overview of this information SUMMARY: This notice identifies are reasonably likely to prevent or collection: disrupt the collection of information. unutilized, underutilized, excess, and (1) Type of Information Collection: surplus Federal property reviewed by BCIS is requesting emergency review Extension of currently approved from OMB of this information collection HUD for suitability for possible use to collection. assist the homeless. to ensure benefits of an applicant under (2) Title of the Form/Collection: section 212 of the Immigration and Application for Waiver of Ground of EFFECTIVE DATE: July 7, 2003. Nationality Act. Therefore, OMB Excludability. FOR FURTHER INFORMATION CONTACT: approval has been requested by June 30, (3) Agency form number, iF any, and 2003. If granted, the emergency the applicable component of the Mark Johnston, Department of Housing approval is only valid for 180 days. All Department of Justice sponsoring the and Urban Development, Room 7262, comments and/or questions pertaining collection: Form I–601. Bureau of 451 Seventh Street SW., Washington, to this pending request for emergency Citizenship and Immigration Services. DC 20410; telephone (202) 708–1234; approval must be directed to OMB, (4) Affected public who will be asked TTY number for the hearing- and Office of Information and Regulatory or required to respond, as well as a brief speech-impaired (202) 708–2565, (these Affairs, Attention: Ms. Karen Lee, DHS abstract: Primary: Individuals or telephone numbers are not toll-free), or Desk Officer, Washington, DC 20503. Households. The information collected call the toll-free Title V information line Comments regarding the emergency on this form will be used by the BCIS at 1–800–927–7588. submission of this information to determine whether the applicant is SUPPLEMENTARY INFORMATION: In collection may also be submitted via eligible for a waiver of excludability accordance with the December 12, 1988 facsimile to Ms. Lee at 202–395–6974. under section 212 of the Act. During the first 60 days of this same (5) An estimate of the total number of court order in National Coalition for the period, a regular review of this respondents and the amount of time Homeless v. Veterans Administration, information collection is also being estimated for an average respondent to No. 88–2503–OG (D.D.C.), HUD undertaken. During the regular review respond: 3,000 responses at 30 minutes publishes a Notice, on a weekly basis, period, the BCIS requests written (.50 hours) per response. identifying unutilized, underutilized, comments and suggestions from the (6) An estimate of the total public excess and surplus Federal buildings public and affected agencies concerning burden (in hours) associated with the and real property that HUD has this information collection. Comments collection: 1,500 annual burden hours. reviewed for suitability for use to assist are encouraged and will be accepted If you have additional comments, the homeless. Today’s Notice is for the until September 2, 2003. During the 60- suggestions, or need a copy of the purpose of announcing that no day regular review, all comments and proposed information collection additional properties have been suggestions, or questions regarding instrument with instructions, or determined suitable or unsuitable this additional information, to include additional information, please contact week. obtaining a copy of the information Richard A. Sloan 202–514–3291, collection instrument with instructions, Director, Regulations and Forms Dated: June 26, 2003. should be directed to Mr. Richard A. Services Division, Room 4307, 425 I John D. Garrity, Sloan, 202–514–3291, Director, Street, NW., Washington, DC 20536. Director, Office of Special Needs Assistance Regulations and Forms Services Additionally, comments and/or Programs. Division, Room 4307, 425 I Street, NW., suggestions regarding the item(s) [FR Doc. 03–16597 Filed 7–2–03; 8:45 am] Washington, DC 20536. Written contained in this notice, especially BILLING CODE 4210–29–M comments and suggestions from the regarding the estimated public burden
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DEPARTMENT OF THE INTERIOR Dated: June 16, 2003. foster increased stewardship of public Sue Ellen Sloca, resources. Office of the Secretary Office of the Secretary, Freedom of Disclosures outside of the Department Information/Privacy Act Officer, National of the Interior may be made— Privacy Act of 1974, As Amended; Business Center. (1) To an expert, consultant, Addition of a New System of Records contractor (including employees of the INTERIOR/OS–14 AGENCY: Department of the Interior. contractor), States’ Liaisons, or TPIA ACTION: Proposed addition of a new SYSTEM NAME: Blue Ribbon panel of the Department system of records. Take Pride In America System— performing, on the Department’s behalf, Interior, OS–14. services related to the TPIA awards SUMMARY: The Department of the program requiring the use of these Interior (DOI) is issuing public notice of SECURITY CLASSIFICATION: records. its intent to add a new Privacy Act Not classified. (2) To another agency or organization system of records to its inventory of for purposes consistent with the TPIA records systems subject to the Privacy SYSTEM LOCATION: purposes identified above. Act of 1974 (5 U.S.C. 552a). The Privacy Department of the Interior, Take Pride (3)(a) To any of the following entities Act requires publication of a Federal In America Program, Office of the or individuals: Register notice of the existence and Secretary, MS–3459 MIB, 1849 C Street, (i) The Department of Justice (DOJ); character of records systems maintained NW., Washington, DC 20240. (ii) A court, adjudicative or other by the agency (5 U.S.C. 552 a(e)(4)). The administrative body; CATEGORIES OF INDIVIDUALS COVERED BY THE (iii) A party in litigation before a court new system of records is called the OS– SYSTEM: 14: Take Pride In America System. or adjudicative or administrative body; Individuals or contacts for (iv) The Department or any DATES: 5 U.S.C. 552a(e)(11) requires that organizations nominated for a Take the public be provided a 30-day period component of the Department; Pride In America (TPIA) Award, and (v) Any Department employee acting in which to comment on the intended individuals who provide nominations. use of the information in the system of in his or her official capacity; or records. The Office of Management and CATEGORIES OF RECORDS IN THE SYSTEM: (vi) Any Departmental employee acting in his or her individual capacity Budget, in its Circular A–130, requires • Name of Individual/Organization if the Department or the DOJ has agreed an additional 10-day period (for a total being nominated, plus contact to represent that employee or pay for of 40 days) in which to make these information; private representation of the employee; comments. Any persons interested in • Category of award; (b) When— commenting on this proposed system of • Name and contact information for (i) One of the following is a party to records may do so by submitting person submitting the nomination; the proceeding or has an interest in the comments in writing to the Office of the • Description of project or activity Secretary, Freedom of Information Act/ proceeding: which forms basis of award, for (A) The Department or any Privacy Act Officer, U.S. Department of example: component of the Department; the Interior, National Business Center, • Location of project or activity, State, (B) Any Department employee acting MS 1414 MIB, 1849 C Street, NW., ownership, U.S. Congressional District in his or her official capacity; Washington, DC 20240, or by e-mail at • Length of project or activity, (C) Any Departmental employee [email protected]. Comments received • Subject area/type of project, acting in his or her individual capacity within 40 days of publication in the • Total volunteer hours donated, total if the Department or the DOJ has agreed Federal Register (August 14, 2003), will number of people involved, to represent that employee or pay for be considered. The system will be • Description, objective, results, private representation of the employee; effective as proposed at the end of the outcomes; (D) The United States, when the DOJ • Community or partnership comment period unless comments are determines that the Department is likely references and sources of funding or received which would require a to be affected by the proceeding; and contrary determination. In that case, the materials donations; and (ii) The Department deems the • Other information necessary to Department will publish any changes to disclosure to be: the routine uses. manage the public awareness (A) Relevant and necessary to the FOR FURTHER INFORMATION CONTACT: component of the TPIA program. proceeding; and Executive Director, Take Pride In Only records relating to individuals (B) Compatible with the purposes for America, at [email protected] or by are covered by the Privacy Act. which the records were compiled. mail at MS–3459–MIB, 1849 C St., NW., AUTHORITY FOR MAINTENANCE OF THE SYSTEM: (4) To appropriate Federal, State, local Washington, DC 20240. Phone: 202– or foreign agencies responsible for 208–5848. Fax: 202–208–5873. Authorization is granted in the Take Pride In America Act, 16 U.S.C. 4601– investigating or prosecuting the SUPPLEMENTARY INFORMATION: The Take 4608. violation of or for enforcing or Pride In America System will contain implementing a statute, rule, regulation, information on organizations and ROUTINE USES OF RECORDS MAINTAINED IN THE order or license, when the Department individuals nominated for Take Pride in SYSTEM INCLUDING CATEGORIES OF USERS AND becomes aware of a violation or America awards under the Take Pride In THE PURPOSES OF SUCH USES: potential violation of a statute, rule, America Act. This information is The primary purpose of the system is regulation, order or license. needed for the Department to judge the to collect information on the activities (5) To a congressional office in candidates for the awards, as well as for of potential awardees, to consider them response to an inquiry an individual administering the TPIA Program for awards, to select award winners, and covered by the system has made to the national public awareness campaign. A for other necessary actions to further the congressional office about him or copy of the system notice for the ‘‘Take purposes of the Take Pride In America herself. Pride In America System’’ OS–14 Program public awareness campaign to (6) To a debt collection agency for the follows. increase volunteerism in the U.S. and purpose of collecting outstanding debts
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owed to the Department for fees providing the same information FOR FURTHER INFORMATION CONTACT: To associated with processing FOIA/PA specified in the Notification Procedures. request a copy of the information requests. The request envelope and letter should collection request, explanatory (7) To an official of another Federal be clearly marked ‘‘PRIVACY ACT information, or related forms, contact agency to provide information needed REQUEST FOR ACCESS.’’ Anissa Craghead at (703) 358–2445, or in the performance of official duties electronically to CONTESTING RECORD PROCEDURES: related to reconciling or reconstructing [email protected]. data files, in support of the functions for To ask for changes to your records, SUPPLEMENTARY INFORMATION: The Office which the records were collected and write to the System Manager at the of Management and Budget (OMB) maintained. location above, providing the same information specified in Notification regulations at 5 CFR part 1320, which DISCLOSURE TO CONSUMER REPORTING Procedures, as well as an explanation of implement provisions of the Paperwork AGENCIES: what you believe should be changed. Reduction Act of 1995 (44 U.S.C. 3501 Not applicable. et seq.), require that interested members RECORD SOURCE CATEGORIES: of the public and affected agencies have POLICIES AND PRACTICES FOR STORING, Information from this system comes an opportunity to comment on RETRIEVING, ACCESSING, RETAINING, AND primarily from the person nominating DISPOSING OF RECORDS IN THE SYSTEM: information collection and the individual/organization for an recordkeeping activities (see 5 CFR STORAGE: award. The nominating party can be 1320.8(d)). The U.S. Fish and Wildlife Records are stored both in file folders either the individual/organization Service (We) has submitted a request to and in electronic form, in computer nominated or a third party. OMB to renew its approval of the systems. collection of information related to the EXEMPTIONS CLAIMED FOR THE SYSTEM: RETRIEVABILITY: Federal Subsistence Regulations (50 None. CFR part 100) and their associated Information from the System will be [FR Doc. 03–16869 Filed 7–2–03; 8:45 am] forms. We are requesting a 3-year term retrievable by name of nominated BILLING CODE 4310–RK–P of approval for this information individual or organization, nominator, collection activity. Federal agencies may control number, Congressional District, not conduct or sponsor, and a person is type of activity, and site location. DEPARTMENT OF THE INTERIOR not required to respond to, a collection SAFEGUARDS: Fish and Wildlife Service of information unless it displays a Access to records in the system is currently valid OMB control number. limited to authorized personnel whose Information Collection Submitted to Title VIII of the Alaska National official duties require such access. Paper the Office of Management and Budget Interest Lands Conservation Act (16 records are maintained in locked file (OMB) for Approval Under the U.S.C. 3101) designates the Departments cabinets and/or in secured rooms. Paperwork Reduction Act; Federal of the Interior as the key agency Electronic records conform to Office of Subsistence Regulations and responsible for implementing the Management and Budget and Associated Forms (50 CFR part 100) subsistence priority on Federal public Departmental guidelines reflecting the lands for rural Alaska residents. This AGENCY: implementation of the Computer Fish and Wildlife Service, responsibility includes the Security Act of 1987 (40 U.S.C. 759). Interior. establishment of permits for rural Electronic data will be protected ACTION: Notice; request for comments. residents to participate in special hunts. In addition, our regulations at 50 CFR through user identification, passwords, SUMMARY: The U.S. Fish and Wildlife part 100.20 provide for the appeal of database permissions and software Service has submitted the collection of controls. Such security measures will Federal Subsistence Board decisions by information listed below to OMB for persons affected by those decisions. establish access levels for different types approval under the provisions of the of users. On January 16, 2003, we published in Paperwork Reduction Act. If you wish the Federal Register (68 FR 2347) a RETENTION AND DISPOSAL: to obtain copies of the proposed notice informing the public that we are Records of winners and finalists will information collection requirement, submitting the information collection be kept permanently. Records of other related forms, or explanatory material, described below to OMB for approval nominations will be kept 10 years, and contact the Service Information under the Paperwork Reduction Act. We then destroyed. Collection Clearance Officer at the requested public comment on the forms address listed below. for 60 days, ending March 17, 2003. By SYSTEM MANAGER AND ADDRESS: DATES: We will accept comments until that date, we did not receive any Executive Director, Take Pride In August 4, 2003. comments. America Program, Office of the ADDRESSES: Submit your comments on Regulation Citation: 50 CFR part Secretary, MS–3459 MIB, 1849 C Street, this information collection renewal to 100.6. NW., Washington, DC 20240. the Desk Officer for the Department of OMB Number: 1018–0075. NOTIFICATION PROCEDURES: the Interior at OMB-OIRA via facsimile Service Form Name and Number: A request for information regarding or e-mail using the following fax Federal Subsistence Hunt Application, number or e-mail address: (202) 395– Permit, and Report, Form 7FS–1. this system of records must be in _ writing, signed by the requester, and 5806 (fax); ruth [email protected] Frequency of Collection: On occasion. include the requester’s full name, (e-mail). Please provide a copy of your Description of Respondents: Federally address, year(s) activity was nominated, comments to the Fish and Wildlife defined rural residents. and location of activity. Service’s Information Collection Total Annual Burden Hours: We Clearance Officer, 4401 N. Fairfax Dr., estimate the reporting burden to average RECORD ACCESS PROCEDURES: MS 222 ARLSQ, Arlington, VA 22207; 0.25 hours per respondent. The total For a copy of your record, write to the (703) 358–2269 (fax); or annual burden is 1,225 hours. System Manager at the location above, [email protected] (e-mail). Total Annual Responses: 4,900.
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Regulation Citation: 50 CFR part DEPARTMENT OF THE INTERIOR The applicant requests a permit to 100.6. export four captive hatched Andean OMB Number: 1018–0075. Fish and Wildlife Service condors (Vultur gryphus) to the Calidad Ambiental de la CAR Cundinamarca, Service Form Name and Number: Receipt of Applications for Permit Designated Hunter Permit Application, Santefe de Bogota, Columbia, for Permit, and Report, Form 7FS–2. AGENCY: Fish and Wildlife Service, reintroduction into the wild to enhance the survival of the species. Frequency of Collection: On occasion. Interior. Description of Respondents: Federally ACTION: Notice of receipt of applications PRT–073050 defined rural residents. for permit. Applicant: Roger Williams Park Zoo, Providence, RI Total Annual Burden Hours: We SUMMARY: The public is invited to estimate the reporting burden to average comment on the following applications The applicant requests a permit to 0.25 hours per respondent. The total to conduct certain activities with import twenty-one parma wallabies annual burden is 100 hours. endangered species and/or marine (Macropus parma) from the feral Total Annual Responses: 400. mammals. population on Kawau Island, New Zealand, for the purpose of Regulation Citation: 50 CFR part DATES: Written data, comments or enhancement of the survival of the 100.6. requests must be received by August 4, species through captive propagation. OMB Number: 1018–0075. 2003. The parma wallaby was introduced to Service Form Name and Number: ADDRESSES: Documents and other Kawau Island and is subject to Federal Subsistence Fish/Shellfish information submitted with these eradication efforts by the New Zealand Harvest/Designated Harvester applications are available for review, government. The import of these Application, Permit, and Report, Form subject to the requirements of the animals would serve as an alternative to 7FS–3. Privacy Act and Freedom of Information extermination and introduce new Frequency of Collection: On occasion. Act, by any party who submits a written founder stock into captive breeding Description of Respondents: Federally request for a copy of such documents efforts. The animals would be defined rural residents. within 30 days of the date of publication maintained at Cape May County Zoo, of this notice to: U.S. Fish and Wildlife Fort Worth Zoo, North Carolina Zoo, Total Annual Burden Hours: We Service, Division of Management San Antonio Zoo and Sunset Zoo. estimate the reporting burden to average Authority, 4401 North Fairfax Drive, 0.5 hours per respondent. The total Room 700, Arlington, Virginia 22203; PRT–073523 annual burden is 62.5 hours. fax 703/358–2281. Applicant: Mance M. Park, Huntsville, Total Annual Responses: 125. FOR FURTHER INFORMATION CONTACT: TX Regulation Citation: 50 CFR part Division of Management Authority, The applicant requests a permit to 100.20. telephone 703/358–2104. import the sport hunted trophy of one OMB Number: 1018–0075. SUPPLEMENTARY INFORMATION: male bontebok (Damaliscus pygargus dorcas) culled from a captive herd Description: Request for an appeal of Endangered Species maintained under the management a Federal Subsistence Board decision. program of the Republic of South Africa, Frequency of Collection: On occasion. The public is invited to comment on the following application(s) for a permit for the purpose of enhancement of the Description of Respondents: Federally to conduct certain activities with survival of the species. defined rural residents. endangered species. This notice is The U.S. Fish and Wildlife Service Total Annual Burden Hours: We provided pursuant to Section 10(c) of has information collection approval estimate the reporting burden to average the Endangered Species Act of 1973, as from OMB through March 31, 2004, 4 hours per respondent. The total amended (16 U.S.C. 1531, et seq.). OMB Control Number 1018–0093. annual burden is 4 hours. Written data, comments, or requests for Federal Agencies may not conduct or Total Annual Responses: 1. copies of these complete applications sponsor and a person is not required to respond to a collection of information We again invite comments concerning should be submitted to the Director (address above). unless it displays a current valid OMB this proposed information collection on: control number. (1) Whether the collection of PRT–073633 information is necessary for the proper Dated: June 20, 2003. Applicant: Cincinnati Zoo and Botanical performance of our functions, including Charles S. Hamilton, Garden, Cincinnati, OH whether the information will have Senior Permit Biologist, Branch of Permits, practical utility; (2) the accuracy of our The applicant requests a permit to Division of Management Authority. estimate of the burden of the collection import frozen embryos obtained from [FR Doc. 03–16831 Filed 7–2–03; 8:45 am] of information; (3) ways to enhance the captive held ocelots (Leopardus pardalis BILLING CODE 4310–55–P quality, utility, and clarity of the mitis) from the Associacao Mata Ciliar, information to be collected; and (4) the Brazilian Ocelot Studbook Keeper, ways to minimize the burden of the for scientific research purposes. This DEPARTMENT OF THE INTERIOR collection of information on notification covers activities conducted Fish and Wildlife Service respondents. by the applicant over a five year period. If issued permit must be renewed Dated: June 30, 2003. annually. Issuance of Permits Anissa Craghead, PRT–072953 AGENCY: Fish and Wildlife Service, Information Collection Officer, Fish and Interior. Wildlife Service. Applicant: Zoological Society of San ACTION: Notice of issuance of permits for [FR Doc. 03–16861 Filed 7–2–03; 8:45 am] Diego @ San Diego Wild Animal Park, endangered species. BILLING CODE 4310–55–P Escondido, CA
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SUMMARY: The following permits were Fairfax Drive, Room 700, Arlington, conditions set forth therein. For each issued. Virginia 22203; fax 703/358–2281. permit for an endangered species, the FOR FURTHER INFORMATION CONTACT: Service found that (1) the application ADDRESSES: Documents and other Division of Management Authority, was filed in good faith, (2) the granted information submitted with these telephone 703/358–2104. permit would not operate to the applications are available for review, SUPPLEMENTARY INFORMATION: Notice is disadvantage of the endangered species, subject to the requirements of the hereby given that on the dates below, as and (3) the granted permit would be Privacy Act and Freedom of Information authorized by the provisions of the consistent with the purposes and policy Act, by any party who submits a written Endangered Species Act of 1973, as set forth in Section 2 of the Endangered request for a copy of such documents to: amended (16 U.S.C. 1531, et seq.), the Fish Species Act of 1973, as amended. U.S. Fish and Wildlife Service, Division and Wildlife Service issued the of Management Authority, 4401 North requested permit(s) subject to certain Endangered Species
Receipt of application Federal Register Permit issuance Permit Applicant notice date
063702 ...... S.O.S. Care, Inc ...... 68 FR 22409; April 28, 2003...... June 4, 2003 064172 ...... Exotic Feline Breeding Compound, Inc ...... 68 FR 15477; March 31, 2003 ...... June 12, 2003. 069654 ...... Russell Davis ...... 68 FR 20019; April 23, 2003 ...... June 9, 2003. 068234 thru 068244 ...... Hawthorn Corporation ...... 68 FR 20166; April 24, 2003 ...... June 10, 2003. 069429, 069439, 069443 ...... Steve Martin’s Working Wildlife ...... 68 FR 20166; April 24, 2003 ...... June 10, 2003. 070682 ...... Andrew K. Stahl ...... 68 FR 22409; April 28, 2003 ...... June 9, 2003. 072856 ...... Robert J. Le Mieux ...... 67 FR 76183; December 11, 2002 (as June 11, 2003. PRT–065433).
Dated: June 13, 2003. SUPPLEMENTARY INFORMATION: The applicant request a permit to Monica Farris, import the sport hunted trophy of one Endangered Species Senior Permit Biologist, Branch of Permits, male bontebok (Damaliscus pygargus Division of Management Authority. The public is invited to comment on dorcas) culled from a captive herd [FR Doc. 03–16832 Filed 7–2–03; 8:45 am] the following application(s) for a permit maintained under the management BILLING CODE 4310–55–P to conduct certain activities with program of the Republic of South Africa, endangered species. This notice is for the purpose of enhancement of the provided pursuant to section 10(c) of survival of the species. DEPARTMENT OF THE INTERIOR the Endangered Species Act of 1973, as PRT–073242 amended (16 U.S.C. 1531, et seq.). Fish and Wildlife Service Written data, comments, or requests for Applicant: Gary M. Story, Edmond, OK copies of these complete applications The applicant request a permit to Receipt of Applications for Permit should be submitted to the Director import the sport hunted trophy of one AGENCY: Fish and Wildlife Service, (address above). male bontebok (Damaliscus pygargus dorcas) culled from a captive herd Interior. PRT–073077 ACTION: Notice of receipt of applications maintained under the management for permit. Applicant: Arthur L. Rathburn, Grosse program of the Republic of South Africa, Pointe Park, MI for the purpose of enhancement of the SUMMARY: The public is invited to The applicant request a permit to survival of the species. comment on the following applications import the sport hunted trophy of one Endangered Marine Mammals and to conduct certain activities with male bontebok (Damaliscus pygargus Marine Mammals endangered species and/or marine dorcas) culled from a captive herd The public is invited to comment on mammals. maintained under the management the following application(s) for a permit DATES program of the Republic of South Africa, : Written data, comments or to conduct certain activities with for the purpose of enhancement of the requests must be received by August 4, endangered marine mammals and/or survival of the species. 2003. marine mammals. The application(s) ADDRESSES: Documents and other PRT–073130 was/were submitted to satisfy information submitted with these requirements of the Endangered Species applications are available for review, Applicant: Marshall N. Rush, Pine Bluff, Act of 1973, as amended (16 U.S.C. subject to the requirements of the AR 1531, et seq.) and/or the Marine Privacy Act and Freedom of Information The applicant request a permit to Mammal Protection Act of 1972, as Act, by any party who submits a written import the sport hunted trophy of one amended (16 U.S.C. 1361 et seq.), and request for a copy of such documents male bontebok (Damaliscus pygargus the regulations governing endangered within 30 days of the date of publication dorcas) culled from a captive herd species (50 CFR part 17) and/or marine of this notice to: U.S. Fish and Wildlife maintained under the management mammals (50 CFR part 18). Written Service, Division of Management program of the Republic of South Africa, data, comments, or requests for copies Authority, 4401 North Fairfax Drive, for the purpose of enhancement of the of the complete applications or requests Room 700, Arlington, Virginia 22203; survival of the species. for a public hearing on these fax 703/358–2281. applications should be submitted to the PRT–073162 FOR FURTHER INFORMATION CONTACT: Director (address above). Anyone Division of Management Authority, Applicant: Ancil L. Lindley, III, requesting a hearing should give telephone 703/358–2104. Crestview, FL specific reasons why a hearing would be
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appropriate. The holding of such a Dated: June 13, 2003. ADDRESSES: Comments regarding the hearing is at the discretion of the Monica Farris, permit application and EA/HCP should Director. Senior Permit Biologist, Branch of Permits, be addressed to Allan Pfister, U.S. Fish Division of Management Authority. and Wildlife Service, Colorado Field PRT–071628 [FR Doc. 03–16833 Filed 7–2–03; 8:45 am] Office, 755 Parfet Street, Suite 361, Applicant: Dr. Iskande Larkin, BILLING CODE 4310–55–P Lakewood, Colorado 80215. Comments University of Florida, Gainesville, FL also may be submitted by facsimile to The applicant requests a permit to (303) 275–2371. import fecal samples deposited by DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Ms. Kathleen Linder, Fish and Wildlife captive-held manatees (Trichechus Fish and Wildlife Service manatus) from Mexico for the purpose Biologist, Colorado Field Office, of scientific research. This notification Draft Environmental Assessment/ telephone (303) 275–2370. covers activities to be conducted by the Habitat Conservation Plan and Receipt SUPPLEMENTARY INFORMATION: applicant over a five-year period. of an Application for an Incidental Take Document Availability Concurrent with the publication of Permit for Struthers Ranch, El Paso this notice in the Federal Register, the County, CO Individuals wishing copies of the EA/ Division of Management Authority is HCP and associated documents for forwarding copies of the above AGENCY: Fish and Wildlife Service, review should immediately contact the applications to the Marine Mammal Interior. above office. Documents also will be available for public inspection, by Commission and the Committee of ACTION: Notice of availability and Scientific Advisors for their review. receipt of application. appointment, during normal business hours at the above address. PRT–073125 SUMMARY: This notice advises the public Background Applicant: Christopher K. Fannin, that Struthers Ranch Development, LLC, Ashland, KY (Applicant) has applied to the Fish and Section 9 of the ESA and Federal regulation prohibit the ‘‘take’’ of a The applicant requests a permit to Wildlife Service (Service) for an incidental take permit pursuant to species listed as endangered or import a polar bear (Ursus maritimus) threatened. Take is defined under the sport hunted from the Lancaster Sound section 10(a)(1)(B) of the Endangered Species Act (ESA) of 1973, as amended. ESA, in part, as to kill, harm, or harass polar bear population in Canada for a federally-listed species. However, the personal use. The proposed permit would authorize the incidental take of the Preble’s Service may issue permits to authorize PRT–073132 meadow jumping mouse (Zapus ‘‘incidental take’’ of listed species under hudsonius preblei) (Preble’s), federally limited circumstances. Incidental take is Applicant: Juan B. Suarez, Coral Gables, defined under the ESA as take of a listed FL listed as threatened, through loss and modification of its habitat associated species that is incidental to, and not the The applicant requests a permit to with construction of a residential and purpose of, the carrying out of an import a polar bear (Ursus maritimus) commercial development in El Paso otherwise lawful activity under limited sport hunted from the Lancaster Sound County, Colorado. The duration of the circumstances. Regulations governing polar bear population in Canada for permit would be 30 years from the date permits for threatened species are personal use. of issuance. promulgated in 50 CFR 17.32. The Struthers Ranch Property is PRT–073481 We announce the receipt of the located along Black Forest Creek on the Applicant’s incidental take permit east side of Interstate 25, roughly 5.6 Applicant: Gerald E. Meyer, Sr., application that includes a combined kilometers (3.5 miles) southeast of the Waterford, WI Environmental Assessment/Habitat Town of Monument, in northwestern El The applicant requests a permit to Conservation Plan (EA/HCP) for the Paso County, Colorado. The specific import a polar bear (Ursus maritimus) Preble’s for the Struthers Ranch legal description for the property is sport hunted from the Southern Property. The proposed EA/HCP is Section 36 of Township 11 South, Range Beaufort Sea polar bear population in available for public review and 67 West (S1⁄2 of SE1⁄4; S1⁄2 of NE1⁄4 and Canada for personal use. comment. It fully describes the NW1⁄4 of SE1⁄4; SE1⁄4 of SW1⁄4; and NE1⁄4 proposed project and the measures the PRT–073227 of SW1⁄4). The project site is 43 hectares Applicant would undertake to minimize (107 acres) with development proposed and mitigate project impacts to the Applicant: Charles Dennis Anderson, for 27 hectares (67 acres). Of the 27 Preble’s. Anaheim, CA hectares (67 acres) proposed for The applicant requests a permit to The Service requests comments on the development, the Applicant, using the import a polar bear (Ursus maritimus) EA/HCP for the proposed issuance of Service’s definition of Preble’s habitat, sport hunted from the Northern Beaufort the incidental take permit. We provide has determined that the proposed Sea polar bear population in Canada for this notice pursuant to section 10(a) of project would impact approximately 6.6 personal use. the ESA and National Environmental hectares (16.4 acres) of potential The U.S. Fish and Wildlife Service Policy Act regulations (40 CFR 1506.6). Preble’s habitat, which includes 0.5 has information collection approval All comments on the EA/HCP and hectare (1.2 acres) of off-site impacts. Of from OMB through March 31, 2004, permit application will become part of the 6.6 hectares (16.4 acres) of OMB Control Number 1018–0093. the administrative record and will be construction within Preble’s habitat, Federal Agencies may not conduct or available to the public. only 1 hectare (2.5 acres) of wetland sponsor and a person is not required to DATES: Written comments on the permit vegetation will be impacted because of respond to a collection of information application and EA/HCP should be construction of a box culvert crossing unless it displays a current valid OMB received on or before September 2, over Black Forest Creek, a utility control number. 2003. easement, and drop structures and rip-
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rap used to stabilize the drainage. improve vegetation quality and diversity conservation measures to restore and Drainage instability has resulted in past within the onsite Preble’s habitat. enhance vegetation for local wildlife flood damage to riparian vegetation, Onsite mitigation is planned for use. which has been exacerbated by cattle approximately 14.4 hectares (35.5 acres) This notice is provided pursuant to grazing leading to sparse vegetation in with varying amounts of restoration, section 10(c) of the ESA. We will most areas. The proposed action enhancement, and creation of onsite evaluate the permit application, the EA/ proposes to stabilize the drainage and Preble’s habitat as described in the HCP HCP, and comments submitted therein repair this past damage through (see section 6.0). This results in a to determine whether the application extensive planting and reseeding. mitigation ratio of 2.168:1 for temporary meets the requirements of section 10(a) Remaining disturbance to Preble’s impacts as well as permanent impacts. of the ESA. If it is determined that those habitat on Struthers Ranch would be The mitigation will likely provide a net requirements are met, a permit will be confined to upland grassy areas. The benefit to the Preble’s and other wildlife issued for the incidental take of the remaining 16.4 hectares (40.3 acres) of by improving and creating new riparian Preble’s in conjunction with the Struthers Ranch not proposed for areas, planting of native shrubs and residential and commercial construction construction will remain undeveloped. grasses, and protecting existing habitat of Struthers Ranch. The final permit Of the total amount of impacted acreage, along Black Forest Creek from any decision will be made no sooner than 60 0.5 hectare (1.1 acres) will be future development. days from the date of this notice. To mitigate impacts that may result temporarily disturbed. from incidental take, the HCP provides Dated: June 18, 2003. Alternatives considered in addition to mitigation for the residential and Paul E. Gertler, the Proposed Action, included waiting commercial site by protection of the Acting Regional Director, Region 6. for the approval of the El Paso County Black Forest Creek corridor onsite and [FR Doc. 03–16838 Filed 7–2–03; 8:45 am] Regional HCP, an increased impact its associated riparian areas from all BILLING CODE 4310–55–P alternative, and no action. The draft EA future development. Of the 14.4 analyzes the onsite, off-site, and hectares (35.5 acres) of mitigation area, cumulative impacts of the proposed restoration and enhancement will occur DEPARTMENT OF THE INTERIOR project and all associated development on 8 hectares (20 acres) of upland areas and construction activities and and restoration will occur on 2 hectares Fish and Wildlife Service mitigation activities on the Preble’s, (5 acres) of riparian areas. Restoration Issuance of Permits other threatened or endangered species, and enhancement will be achieved vegetation, wildlife, wetlands, geology/ through planting and seeding of native AGENCY: Fish and Wildlife Service, soils, land use, water resources, air and woody, herbaceous, and grassy species, Interior. water quality, or cultural resources. and a combination of removing grazing ACTION: Notice of issuance of permit for pressures and noxious weed control. An HCP has been developed as part marine mammals. of the preferred alternative which is Additionally, limited enhancement will occur on 3.3 hectares (8.1 acres) of proposed to offset impacts associated SUMMARY: The following permit was uplands. Limited enhancement will with construction of Preble’s habitat. issued. consist of weed control and the removal The proposed HCP will allow for the of grazing to encourage existing native ADDRESSES: Documents and other incidental take of the Preble’s by grass recovery. No seeding or planting information submitted with this permitting residential and commercial will occur in these areas. Habitat application are available for review, development to be constructed in an creation will occur on an additional 1 subject to the requirements of the area that may be periodically used as hectare (2.5 acres) including an area Privacy Act and Freedom of Information foraging or hibernation habitat. The proposed for a detention pond in the Act, by any party who submits a written proposed action has been designed to southwest corner of the property located request for a copy of such documents to: minimize impacts to the riparian outside of Preble’s habitat and within a U.S. Fish and Wildlife Service, Division vegetation along Black Forest Creek and Preble’s habitat buffer area currently of Management Authority, 4401 North limits development to the highest occupied by ranch house outbuildings. Fairfax Drive, Room 700, Arlington, elevations on the parcel. This will Measures will be taken during Virginia 22203; fax 703/358–2281. facilitate development on the property construction to minimize impact to the FOR FURTHER INFORMATION CONTACT: while minimizing, to the greatest extent habitat, including the use of silt fencing Division of Management Authority, practicable, impacts to Preble’s habitat to reduce the amount of sediment from telephone 703/358–2104. and waters of the United States. In construction activities that reaches the SUPPLEMENTARY INFORMATION: addition, the proposed action includes Notice is creek. All of the proposed mitigation hereby given that on the date below, as extensive onsite conservation measures, area is within the boundaries of the authorized by the provisions of the as described in section 6.0 (HCP), to Struthers Ranch property, all of which Marine Mammal Protection Act of 1972, repair damage from current cattle is included in the drainage basin of as amended (16 U.S.C. 1361 et seq.), the grazing practices, poor watershed Black Forest Creek. Fish and Wildlife Service issued the management upstream, and the heavy The 14.4 hectares (35.5 acres) of requested permit subject to certain flood events. This will result in an undeveloped land along Black Forest conditions set forth therein. overall improvement in the stability of Creek will be maintained as a the drainage, which will, in turn, preservation area with extensive Marine Mammals
Permit issuance Permit No. Applicant Receipt of application Federal Register notice date
069177 ...... Felix F. Gardina ...... 68 FR 20020; April 23, 2003 ...... June 9, 2003. 070369 ...... Raymond A. Young ...... 68 FR 20166; April 24, 2003 ...... June 10, 2003. 740507 ...... Alaska Science Center ...... 68 FR 20166; April 24, 2003 ...... June 20, 2003.
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Dated: June 20, 2003. (IGRA), Public Law 100–497, 25 U.S.C. Department of the Interior, through her Charles S. Hamilton, 2710, the Secretary of the Interior shall delegated authority, is publishing notice Senior Permit Biologist, Branch of Permits, publish, in the Federal Register, notice that the 2003 Amendments to the Division of Management Authority. of the approved Tribal-State compacts Sokaogon Chippewa Community and [FR Doc. 03–16830 Filed 7–2–03; 8:45 am] for the purpose of engaging in Class III the State of Wisconsin Gaming Compact BILLING CODE 4310–55–P gaming activities on Indian lands. The of 1991, as Amended February 20, 1998 Assistant Secretary—Indian Affairs, executed on April 25, 2003 are Department of the Interior, through her considered approved. By the terms of DEPARTMENT OF THE INTERIOR delegated authority, is publishing notice IGRA, the 2003 Amendments to the that the Second Amendment to the Compact are considered approved, but Bureau of Indian Affairs Gaming Compact of 1992 between the only to the extent the 2003 Ho-Chunk Nation and the State of Amendments are consistent with the Indian Gaming Wisconsin executed on April 25, 2003 provisions of IGRA. AGENCY: Bureau of Indian Affairs, are considered approved. By the terms The 2003 Amendments expand the Interior. of IGRA, the Second Amendment to the scope of gaming activities authorized ACTION: Notice of approved Tribal-State Compacts are considered approved, but under the Compact, remove limitations Compacts. only to the extent that the Second on wager limits, remove limitations on Amendments are consistent with the the number of permitted gaming SUMMARY: Under section 11 of the provisions of IGRA. devices, extend the term of the compact Indian Gaming Regulatory Act of 1988 The Second Amendment expands the to an indefinite term, subject to re- (IGRA), Public Law 100–497, 25 U.S.C. scope of gaming activities authorized opener clauses, institute an entirely new 2710, the Secretary of the Interior shall under the Compact, removes limitations dispute resolution provision, replaces publish, in the Federal Register, notice on wager limits, removes limitations on the sovereign immunity provision, and of approved Tribal-State Compacts for the number of permitted gaming modify the revenue-sharing provision of the purpose of engaging in Class III devices, extends the terms of the the Compact. gaming activities on Indian lands. The compact to an indefinite term, subject to EFFECTIVE DATE: July 3, 2003. Assistant Secretary b Indian Affairs, re-opener clauses, institutes an entirely FOR FURTHER INFORMATION CONTACT: Department of the Interior, through her new dispute resolution provision, George T. Skibine, Director, Office of delegated authority, has approved the replaces the sovereign immunity Indian Gaming Management, Bureau of Tribal-State Compacts between the provision, and modifies the revenue- Indian Affairs, Washington, DC 20240, Colorado River Indian Tribes and the sharing provision of the Compact. (202) 219–4066. State of Arizona and between the Zuni EFFECTIVE DATE: July 3, 2003. Tribe and the State of Arizona. These Dated: June 18, 2003. FOR FURTHER INFORMATION CONTACT: Compacts expand the scope of gaming George T. Skibine, Director, Office of Aurene M. Martin, activities authorized under the Indian Gaming Management, Bureau of Acting Assistant Secretary—Indian Affairs. Compacts, increases wager limits, Indian Affairs, Washington, DC 20240, [FR Doc. 03–16825 Filed 7–2–03; 8:45 am] increases the number of permitted (202) 219–4066. BILLING CODE 4310–4N–M gaming devices, and allows the tribes to enter into gaming device transfer Dated: June 19, 2003. agreements with one or more gaming Woodrow W. Hooper, Jr., DEPARTMENT OF THE INTERIOR tribes. Acting Deputy Assistant Secretary for Management. EFFECTIVE DATE: July 3, 2003. National Park Service [FR Doc. 03–16824 Filed 7–2–03; 8:45 am] FOR FURTHER INFORMATION CONTACT: BILLING CODE 4310–4N–M Concession Contracts and Permits: George T. Skibine, Director, Office of Expiring Contracts; Extension Indian Gaming Management, Bureau of Indian Affairs, Washington, DC 20240, DEPARTMENT OF THE INTERIOR AGENCY: National Park Service, Interior. (202) 219–4066. ACTION: Public notice. Dated: June 18, 2003. Bureau of Indian Affairs SUMMARY: Pursuant to the National Park Aurene M. Martin, Indian Gaming Service Concessions Management Acting Assistant Secretary—Indian Affairs. Improvement Act of 1998, notice is [FR Doc. 03–16826 Filed 7–2–03; 8:45 am] AGENCY: Bureau of Indian Affairs, hereby given that the National Park BILLING CODE 4310–4N–M Interior. Service intends to issue a temporary ACTION: Notice of Tribal-State Gaming contract authorizing operation of Compact Amendments to the Sokaogon marina, campground, food service and DEPARTMENT OF THE INTERIOR Chippewa Community and the State of sundry sales at Fire Island National Wisconsin Gaming compact of 1991, as Bureau of Indian Affairs Seashore. The temporary contract will amended February 20, 1998 Taking be for a term not-to-exceed 1 year. This Indian Gaming Effect. short-term concession contract is SUMMARY: Pursuant to section 11 of the necessary to avoid interruption of AGENCY: Bureau of Indian Affairs, visitor services while the National Park Interior. Indian Gaming Regulatory Act of 1988 (IGRA), Public Law 100–497, 25 U.S.C. Service completes the ongoing financial ACTION: Notice of Tribal-State Gaming analysis and issues a prospectus for a Compact Amendment taking effect 2710, the Secretary of the Interior shall publish, in the Federal Register, notice long-term contract. This notice is between the Ho-Chunk Nation and the pursuant to 36 CFR part 51, section State of Wisconsin. of approved Tribal-State Compacts for the purpose of engaging in Class III 51.24(a). SUMMARY: Pursuant to section 11 of the gaming activities on Indian lands. The SUPPLEMENTARY INFORMATION: The Indian Gaming Regulatory Act of 1988 Assistant Secretary-Indian Affairs, current concession contract at Fire
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Island NS (Watch Hill) will expire by its EFFECTIVE DATE: July 3, 2003. existing overlook rather than the terms on December 31, 2002. The FOR FURTHER INFORMATION CONTACT: proposed upriver side. National Park Service has determined Cynthia Orlando, Concession Program DATES: The EA, upon which the FONSI that the proposed 1-year extension is Manager, National Park Service, was made, was available for public necessary in order to avoid interruption Washington, DC 20240, Telephone 202/ comment from November 5 to December of visitor services and has taken all 513–7156. 5, 2001. A total of six comments were reasonable and appropriate steps to Dated: May 9, 2003. received during the 30-day public consider alternatives to avoid such comment period from park user groups Richard G. Ring, interruption. This extension will allow and neighboring government agencies. the National Park Service to develop a Associate Director, Administration, Business All supported the park in the preferred Practices and Workforce Development. prospectus leading to competitive alternative and most recommended that selection for a new long-term [FR Doc. 03–16800 Filed 7–2–03; 8:45 am] further study be done to improve the concession contract. BILLING CODE 4312–53–M Fisherman’s Eddy Access. Concessioner ID No.: CC–FIIS002. ADDRESSES: The Decision Record and Concessioner Name: Davis Park Marine DEPARTMENT OF THE INTERIOR FONSI will be available for public Services, Inc. inspection Monday through Friday, 8 Park: Fire Island National Seashore. National Park Service a.m. through 4 p.m. at the GWMP EFFECTIVE DATE: July 3, 2003. Headquarters, Turkey Run Park, FOR FURTHER INFORMATION CONTACT: Decision Record and Finding of No McLean, VA, and is available on the Cynthia Orlando, Concession Program Significant Impact (FONSI) for the park’s Web site at http://www.nps.gov/ Manager, National Park Service, Improvements to Trails and Overlooks gwmp. Washington, DC 20240, Telephone 202/ at Great Falls Park, VA SUPPLEMENTARY INFORMATION: 513–7144. The AGENCY: National Park Service, Interior. Decision Record and FONSI completes Dated: May 19, 2003. ACTION: Availability of the Decision the Environmental Assessment process. Richard G. Ring, Record and FONSI for the proposal to FOR FURTHER INFORMATION CONTACT: Associate Director, Administration, Business improve the trails and overlooks at Natural Resource Specialist, Heather Practices and Workforce Development. Great Falls Park, Virginia. Germaine (703) 289–2540. [FR Doc. 03–16799 Filed 7–2–03; 8:45 am] Dottie Marshall, BILLING CODE 4312–53–M SUMMARY: Pursuant to Council on Environmental Quality regulations and Acting Superintendent, George Washington National Park Service policy, the Memorial Parkway. DEPARTMENT OF THE INTERIOR National Park Service announces the [FR Doc. 03–16801 Filed 7–2–03; 8:45 am] BILLING CODE 4310–DL–P National Park Service availability of the Decision Record and FONSI for the improvement to the trails and overlooks at Great Falls Park, a unit Concession Contracts and Permits: DEPARTMENT OF THE INTERIOR Expiring Contracts; Extension of the George Washington Memorial Parkway (GWMP). The Decision Record National Park Service AGENCY: National Park Service, Interior. and FONSI identifies Alternative C1 as ACTION: Public notice. the preferred and environmentally Notice of Inventory Completion: preferred alternative in the American Museum of Natural History, SUMMARY: Pursuant to the terms of ‘‘Improvements to Trails and Overlooks New York, NY existing concession contracts, public at Great Falls Park, Virginia’’ notice is hereby given that the National Environmental Assessment (EA). Under AGENCY: National Park Service, Interior. Park Service intends to request a this alternative the existing Overlook 1, ACTION: Notice. continuation of visitor services for a Overlook 2, and the chain-link fence at period not-to-exceed 1 year from the the Jetty Overlook would be removed Notice is here given in accordance date of contract expiration. and new replacement structures built in with the Native American Graves SUPPLEMENTARY INFORMATION: The the same locations. A loop trail/ Protection and Repatriation Act contract listed below has been extended boardwalk would be constructed (NAGPRA), 25 U.S.C. 3003, of the to the maximum allowable under 36 through the area between the visitor completion of an inventory of human CFR 51.23. Under the provisions of the center and the river. Two additional remains and associated funerary objects current concession contract and overlooks would be built at the Shade in the possession of the American pending the development and public Tree/Jetty area. This alternative, Museum of Natural History, New York, solicitation of a prospectus for a new however, does not provide for the NY. The human remains and associated concession contract, the National Park stabilization and restoration of the area funerary objects were removed from a Service authorizes continuation of between Overlooks 1 and 2 and the cave facing Crab Bay, Kruzof Island, visitor services for a period not-to- Fisherman’s Eddy access, pending Sitka Borough, AK. exceed one year under the terms and future investigations to determine This notice is published as part of the conditions of the current contract as whether such improvements are feasible National Park Service’s administrative amended. The continuation of and sustainable. Concern was raised responsibilities under NAGPRA, 25 operations does not affect any rights during the EA process about impacts of U.S.C. 3003 (d)(3). The determinations with respect to selection for award of a the preferred alternative on a state listed within this notice are the sole new concession contract. (S1) plant species. The park determined responsibility of the museum, Concessioner ID No.: FIIS004. that potential impacts to these rare institution, or Federal agency that has Concessioner Name: Howard T. Rose plants could be greatly reduced if the control of the Native American human Company, Inc. proposed configuration of Overlook 1 remains and associated funerary objects. Park: Fire Island National Seashore. were shifted to the downriver side of the The National Park Service is not
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responsible for the determinations associated funerary objects and the Sitka Enforcement, Albuquerque, NM, within this notice. Tribe of Alaska. participated in an undercover A detailed assessment of the human Representatives of any other Indian investigation of several individuals remains was made by American tribe that believes itself to be culturally believed to be engaged in the illegal Museum of Natural History professional affiliated with the human remains and trafficking of Native American cultural staff in consultation with associated funerary objects should items. Federal agents purchased or representatives of Central Council of the contact Luc Litwinionek, Director of seized several cultural items as part of Tlingit & Haida Indian Tribes and Sitka Cultural Resources, American Museum the investigation. On September 10, Tribe of Alaska. of Natural History, Central Park West at 2002, Joshua Baer and Thomas Cavaliere In 1931, human remains representing 79th Street, New York, NY 10024–5192, each pled guilty to three counts of a minimum of one individual were telephone (212) 769–5846, before illegal trafficking of Native American collected by six students of the Sheldon August 4, 2003. Repatriation of the cultural items obtained in violation of Jackson School from a cave facing Crab human remains and associated funerary 18 U.S.C. 1170 (b). On January 3 and Bay, Kruzof Island, Sitka Borough, AK. objects to the Sitka Tribe of Alaska may February 12, 2003, the U.S. District W. Leslie Yaw, superintendent of the proceed after that date if no additional Court for the District of New Mexico school, sold them to the American claimants come forward. ordered that all items seized during the Museum of Natural History in 1932. No The American Museum of Natural investigation be forfeited to the U.S. known individual was identified. The History is responsible for notifying Department of the Interior, U.S. Fish eight associated funerary objects are a Central Council of the Tlingit & Haida and Wildlife Service, Office of Law carved bentwood box, the box lid, cord, Indian Tribes and Sitka Tribe of Alaska Enforcement, Albuquerque, NM, and matting cover, a raven’s tail blanket that this notice has been published. repatriated to the culturally affiliated fragment, shredded bark, and two Dated: May 23, 2003. Indian tribes. The carved stone fetish is digging sticks. one of the items forfeited to the U.S. John Robbins, The individual has been identified as Department of the Interior, U.S. Fish Native American based on the American Assistant Director, Cultural Resources. and Wildlife Service, Office of Law Museum of Natural History’s [FR Doc. 03–16805 Filed 7–2–03; 8:45 am] Enforcement, Albuquerque, NM. documentation and geographic BILLING CODE 4310–70–S The U.S. Department of the Interior, information. The original catalog U.S. Fish and Wildlife Service, Office of describes the remains as ‘‘Tlingit,’’ and Law Enforcement, Albuquerque, NM, their geographic origin is consistent DEPARTMENT OF THE INTERIOR prepared a summary of the cultural with the postcontact territory of the items obtained during the investigation. National Park Service Sitka Tlingit (present-day Sitka Tribe of The U.S. Department of the Interior, Alaska). Consultation information Notice of Intent to Repatriate a Cultural U.S. Fish and Wildlife Service, Office of provided by the Sitka Tribe of Alaska Item: U.S. Department of the Interior, Law Enforcement, Albuquerque, NM, indicates that the carving on the U.S. Fish and Wildlife Service, Office of also consulted with representatives of bentwood box represents the frog crest Law Enforcement, Albuquerque, NM the Hopi Tribe of Arizona; Navajo of the Sitka Kiks.adi clan. Raven’s tail Nation, Arizona, New Mexico & Utah; blankets, of the type found associated AGENCY: National Park Service, Interior. Pueblo of Acoma, New Mexico; Pueblo with this burial, were made by the ACTION: Notice. of Jemez, New Mexico; Pueblo of Tlingit immediately prior to and at the Laguna, New Mexico; Pueblo of Santo time of contact with non-native traders Notice is here given in accordance Domingo, New Mexico; and Zuni Tribe and settlers. Scholarly publications and with the Native American Graves of the Zuni Reservation, New Mexico. consultation information provided by Protection and Repatriation Act Representatives of the Pueblo of the Sitka Tribe of Alaska indicate that (NAGPRA), 43 CFR 10.8 (f), of the intent Laguna, New Mexico identified the the Sitka Kiks.adi clan inhabited Kruzof to repatriate a cultural item in the carved stone as a fetish having ongoing Island when Russians first arrived there. possession of the U.S. Department of the religious and ceremonial significance to The Sitka Kiks.adi clan is represented Interior, U.S. Fish and Wildlife Service, the pueblo as a whole. The tribal by the Sitka Tribe of Alaska. Office of Law Enforcement, representative explained that such stone Officials of the American Museum of Albuquerque, NM, that meets the fetishes are to be forever protected as Natural History have determined that, definitions of sacred objects and part of Laguna tradition. While the stone pursuant to 25 U.S.C. 3001 (9–10), the cultural patrimony under 25 U.S.C. fetish may have been held by an human remains described above 3001. individual, it is considered the represent the physical remains of a This notice is published as part of the communal property of the Pueblo of minimum of one individual of Native National Park Service’s administrative Laguna, New Mexico and could not American ancestry. Officials of the responsibilities under NAGPRA, 25 have been sold. American Museum of Natural History U.S.C. 3003 (d)(3). The determinations Officials of the U.S. Department of the also have determined that, pursuant to within this notice are the sole Interior, U.S. Fish and Wildlife Service, 25 U.S.C. 3001 (3)(A), the eight objects responsibility of the museum, Office of Law Enforcement, described above are reasonably believed institution, or Federal agency that has Albuquerque, NM, have determined to have been placed with or near control of this cultural item. The that, pursuant to 25 U.S.C. 3001 (3)(C), individual human remains at the time of National Park Service is not responsible this cultural item is a specific death or later as part of the death rite for the determinations within this ceremonial object needed by traditional or ceremony. Lastly, officials of the notice. Native American religious leaders for American Museum of Natural History The one cultural item is a 4-inch long the practice of traditional Native have determined that, pursuant to 25 piece of stone carved in the shape of a American religions by their present-day U.S.C. 3001 (2), there is a relationship horse. adherents. Officials of the U.S. of shared group identity that can be During 1999 and 2000, the U.S. Department of the Interior, U.S. Fish reasonably traced between the Native Department of the Interior, U.S. Fish and Wildlife Service, Office of Law American human remains and and Wildlife Service, Office of Law Enforcement, Albuquerque, NM, have
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determined that, pursuant to 25 U.S.C. definitions of sacred objects and Mexico identified the five wooden 3001 (3)(D), this cultural item also has cultural patrimony under 25 U.S.C. figures as needed for the practice of ongoing historical, traditional, or 3001. traditional Zuni religion by present-day cultural importance central to the This notice is published as part of the adherents. The tribal representative Native American group or culture itself, National Park Service’s administrative explained that the five wooden figures rather than property owned by an responsibilities under NAGPRA, 25 are considered the communal property individual. Officials of the U.S. U.S.C. 3003 (d)(3). The determinations of the Zuni Tribe of the Zuni Department of the Interior, U.S. Fish within this notice are the sole Reservation, New Mexico and could not and Wildlife Service, Office of Law responsibility of the museum, have been sold or given away by an Enforcement, Albuquerque, NM, have institution, or Federal agency that has individual. control of the cultural items. The determined that, pursuant to 25 U.S.C. Officials of the U.S. Department of the 3001 (2), there is a relationship of National Park Service is not responsible for the determinations within this Interior, U.S. Fish and Wildlife Service, shared group identity that can be Office of Law Enforcement, reasonably traced between this sacred notice. The cultural items are five wooden Albuquerque, NM, have determined object/object of cultural patrimony and that, pursuant to 25 U.S.C. 3001 (3)(C), the Pueblo of Laguna, New Mexico. figures. Two of the figures are about 6 the five cultural items are specific Representatives of any other Indian inches in height and are wrapped ceremonial objects needed by traditional tribe that believes itself to be culturally together in a cloth. Two of the figures affiliated with this sacred object/object are about 4 inches in height and are also Native American religious leaders for of cultural patrimony should contact wrapped together in a cloth. The fifth the practice of traditional Native Special Agent Lucinda D. Schroeder, figure is about 18 inches in height and American religions by their present-day U.S. Fish and Wildlife Service, 4901 is not wrapped in a cloth. adherents. Officials of the U.S. Paseo Del Norte, Albuquerque, NM During 1999 and 2000, the U.S. Department of the Interior, U.S. Fish 87113, telephone (505) 828–3064, before Department of the Interior, U.S. Fish and Wildlife Service, Office of Law August 4, 2003. Repatriation of this and Wildlife Service, Office of Law Enforcement, Albuquerque, NM, have sacred object/object of cultural Enforcement, Albuquerque, NM, determined that, pursuant to 25 U.S.C. patrimony to the Pueblo of Laguna, New participated in an undercover 3001 (3)(D), the five cultural items also Mexico may proceed after that date if no investigation of several individuals have ongoing historical, traditional, or additional claimants come forward. believed to be engaged in the illegal cultural importance central to the The U.S. Department of the Interior, trafficking of Native American cultural Native American group or culture itself, U.S. Fish and Wildlife Service, Office of items. Federal agents purchased or rather than property owned by an Law Enforcement, Albuquerque, NM, is seized several cultural items as part of individual. Officials of the U.S. responsible for notifying the Hopi Tribe the investigation. On September 10, Department of the Interior, U.S. Fish of Arizona; Navajo Nation, Arizona, 2002, Joshua Baer and Thomas Cavaliere and Wildlife Service, Office of Law New Mexico & Utah; Pueblo of Acoma, each pled guilty to three counts of Enforcement, Albuquerque, NM, also New Mexico; Pueblo of Jemez, New illegal trafficking of Native American have determined that, pursuant to 25 Mexico; Pueblo of Laguna, New Mexico; cultural items obtained in violation of U.S.C. 3001 (2), there is a relationship Pueblo of Santo Domingo, New Mexico; 18 U.S.C. 1170 (b). On January 3 and of shared group identity that can be and Zuni Tribe of the Zuni Reservation, February 12, 2003, the U.S. District reasonably traced between the five New Mexico that this notice has been Court for the District of New Mexico sacred objects/objects of cultural published. ordered that all items seized during the patrimony and the Zuni Tribe of the investigation be forfeited to the U.S. Zuni Reservation, New Mexico. Dated: May 27, 2003. Department of the Interior, U.S. Fish Representatives of any other Indian John Robbins, and Wildlife Service, Office of Law tribe that believes itself to be culturally Assistant Director, Cultural Resources. Enforcement, Albuquerque, NM, and affiliated with the sacred objects/objects repatriated to the culturally affiliated [FR Doc. 03–16803 Filed 7–2–03; 8:45 am] of cultural patrimony should contact BILLING CODE 4310–70–S Indian tribes. The wooden figures are five of the items forfeited to the U.S. Special Agent Lucinda D. Schroeder, Department of the Interior, U.S. Fish U.S. Fish and Wildlife Service, 4901 DEPARTMENT OF THE INTERIOR and Wildlife Service, Office of Law Paseo Del Norte, Albuquerque, NM Enforcement, Albuquerque, NM. 87113, telephone (505) 828–3064, before National Park Service The U.S. Department of the Interior, August 4, 2003. Repatriation of the U.S. Fish and Wildlife Service, Office of sacred objects/objects of cultural Notice of Intent to Repatriate Cultural Law Enforcement, Albuquerque, NM, patrimony to the Zuni Tribe of the Zuni Items: U.S. Department of the Interior, prepared a summary of the cultural Reservation, New Mexico may proceed U.S. Fish and Wildlife Service, Office of items obtained during the investigation. after that date if no additional claimants Law Enforcement, Albuquerque, NM The U.S. Department of the Interior, come forward. AGENCY: National Park Service, Interior. U.S. Fish and Wildlife Service, Office of The U.S. Department of the Interior, ACTION: Notice. Law Enforcement, Albuquerque, NM, U.S. Fish and Wildlife Service, Office of also consulted with representatives of Law Enforcement, Albuquerque, NM, is Notice is here given in accordance the Hopi Tribe of Arizona; Navajo responsible for notifying the Hopi Tribe with the Native American Graves Nation, Arizona, New Mexico & Utah; of Arizona; Navajo Nation, Arizona, Protection and Repatriation Act Pueblo of Acoma, New Mexico; Pueblo New Mexico & Utah; Pueblo of Acoma, (NAGPRA), 43 CFR 10.8 (f), of the intent of Jemez, New Mexico; Pueblo of New Mexico; Pueblo of Jemez, New to repatriate cultural items in the Laguna, New Mexico; Pueblo of Santo Mexico; Pueblo of Laguna, New Mexico; possession of the U.S. Department of the Domingo, New Mexico; and Zuni Tribe Pueblo of Santo Domingo, New Mexico; Interior, U.S. Fish and Wildlife Service, of the Zuni Reservation, New and Zuni Tribe of the Zuni Reservation, Office of Law Enforcement, Mexico.Representatives of the Zuni New Mexico that this notice has been Albuquerque, NM, that meet the Tribe of the Zuni Reservation, New published.
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Dated: May 27, 2003. ordered that all items seized during the American group or culture itself, rather John Robbins, investigation be forfeited to the U.S. than property owned by an individual. Assistant Director, Cultural Resources. Department of the Interior, U.S. Fish Officials of the U.S. Department of the [FR Doc. 03–16804 Filed 7–2–03; 8:45 am] and Wildlife Service, Office of Law Interior, U.S. Fish and Wildlife Service, BILLING CODE 4310–70–S Enforcement, Albuquerque, NM, and Office of Law Enforcement, repatriated to the culturally affiliated Albuquerque, NM, also have determined Indian tribes. The 20 cultural items are that, pursuant to 25 U.S.C. 3001 (2), DEPARTMENT OF THE INTERIOR part of the items forfeited to the U.S. there is a relationship of shared group Department of the Interior, U.S. Fish identity that can be reasonably traced National Park Service and Wildlife Service, Office of Law between the 20 sacred objects/objects of Enforcement, Albuquerque, NM. cultural patrimony and the Hopi Tribe Notice of Intent to Repatriate Cultural The U.S. Department of the Interior, of Arizona. Items: U.S. Department of the Interior, U.S. Fish and Wildlife Service, Office of Representatives of any other Indian U.S. Fish and Wildlife Service, Office of Law Enforcement, Albuquerque, NM, tribe that believes itself to be culturally Law Enforcement, Albuquerque, NM prepared a summary of the cultural affiliated with the sacred objects/objects items obtained during the investigation. AGENCY: of cultural patrimony should contact National Park Service, Interior. The U.S. Department of the Interior, ACTION: Notice. Special Agent Lucinda D. Schroeder, U.S. Fish and Wildlife Service, Office of U.S. Fish and Wildlife Service, 4901 Law Enforcement, Albuquerque, NM, Notice is here given in accordance Paseo Del Norte, Albuquerque, NM also consulted with representatives of with the Native American Graves 87113, telephone (505) 828–3064, before the Hopi Tribe of Arizona; Navajo Protection and Repatriation Act August 4, 2003. Repatriation of the Nation, Arizona, New Mexico & Utah; (NAGPRA), 43 CFR 10.8 (f), of the intent sacred objects/objects of cultural Pueblo of Acoma, New Mexico; Pueblo to repatriate cultural items in the patrimony to the Hopi Tribe of Arizona of Jemez, New Mexico; Pueblo of possession of the U.S. Department of the may proceed after that date if no Laguna, New Mexico; Pueblo of Santo additional claimants come forward. Interior, U.S. Fish and Wildlife Service, Domingo, New Mexico; and Zuni Tribe The U.S. Department of the Interior, Office of Law Enforcement, of the Zuni Reservation, New Albuquerque, NM, that meet the Mexico.Representatives of the Hopi U.S. Fish and Wildlife Service, Office of definitions of sacred objects and Tribe of Arizona identified the 20 Law Enforcement, Albuquerque, NM, is cultural patrimony under 25 U.S.C. cultural items as ceremonial objects responsible for notifying the Hopi Tribe 3001. needed for the practice of traditional of Arizona; Navajo Nation, Arizona, This notice is published as part of the religion. They identified the wooden New Mexico & Utah; Pueblo of Acoma, National Park Service’s administrative paddles as needed to safeguard New Mexico; Pueblo of Jemez, New responsibilities under NAGPRA, 25 livestock. They identified the two Mexico; Pueblo of Laguna, New Mexico; U.S.C. 3003 (d)(3). The determinations wooden birds as altar figures. They Pueblo of Santo Domingo, New Mexico; within this notice are the sole identified the mongko as needed for and Zuni Tribe of the Zuni Reservation, responsibility of the museum, ceremonies conducted by the Two Horn New Mexico that this notice has been institution, or Federal agency that has Society. They identified the 14 carved published. control of the cultural items. The stones as beings used to treat a variety Dated: May 27, 2003. National Park Service is not responsible of ailments. They identified the flat John Robbins, for the determinations within this wooden figurine as being worn in a Assistant Director, Cultural Resources. notice. particular religious ceremony. The [FR Doc. 03–16806 Filed 7–2–03; 8:45 am] The 20 cultural items are 2 pairs of representatives of the Hopi Tribe of BILLING CODE 4310–70–S small painted wooden paddles that are Arizona identified all 20 cultural items tied together with attached feathers, 2 as being of central importance to the wooden figures carved in the shape of Hopi Tribe of Arizona and its religious DEPARTMENT OF THE INTERIOR birds, 1 decorated piece of wood or societies. The representatives of the mongko, 14 stones that are carved in the Hopi Tribe of Arizona identified all 20 National Park Service shape of various animals and contained cultural items as communal property of in leather bags, and 1 flat wooden the pueblo as a whole that could not be Notice of Intent to Repatriate Cultural figurine approximately 8 inches high. sold or given away by an individual. Items: U.S. Department of the Interior, During 1999 and 2000, the U.S. Officials of the U.S. Department of the U.S. Fish and Wildlife Service, Office of Department of the Interior, U.S. Fish Interior, U.S. Fish and Wildlife Service, Law Enforcement, Albuquerque, NM and Wildlife Service, Office of Law Office of Law Enforcement, Enforcement, Albuquerque, NM, Albuquerque, NM, have determined AGENCY: National Park Service, Interior. participated in an undercover that, pursuant to 25 U.S.C. 3001 (3)(C), ACTION: Notice. investigation of several individuals the 20 cultural items are specific believed to be engaged in the illegal ceremonial objects needed by traditional Notice is here given in accordance trafficking of Native American cultural Native American religious leaders for with the Native American Graves items. Federal agents purchased or the practice of traditional Native Protection and Repatriation Act seized several cultural items as part of American religions by their present-day (NAGPRA), 43 CFR 10.8 (f), of the intent the investigation. On September 10, adherents. Officials of the U.S. to repatriate cultural items in the 2002, Joshua Baer and Thomas Cavaliere Department of the Interior, U.S. Fish possession of the U.S. Department of the each pled guilty to three counts of and Wildlife Service, Office of Law Interior, U.S. Fish and Wildlife Service, illegal trafficking of Native American Enforcement, Albuquerque, NM, have Office of Law Enforcement, cultural items obtained in violation of determined that, pursuant to 25 U.S.C. Albuquerque, NM, that meet the 18 U.S.C. 1170 (b). On January 3 and 3001 (3)(D), the 20 cultural items also definitions of sacred objects and February 12, 2003, the U.S. District have ongoing historical, traditional, or cultural patrimony under 25 U.S.C. Court for the District of New Mexico cultural importance central to a Native 3001.
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This notice is published as part of the from an offering site. The ceramic bowl Dated: May 27, 2003. National Park Service’s administrative is a medicine bowl used in kiva John Robbins, responsibilities under NAGPRA, 25 ceremonies. The four kachina figures are Assistant Director, Cultural Resources. U.S.C. 3003 (d)(3). The determinations needed for religious practices. The [FR Doc. 03–16807 Filed 7–2–03; 8:45 am] within this notice are the sole representatives of the Pueblo of Acoma, BILLING CODE 4310–70–S responsibility of the museum, New Mexico identified all seven institution, or Federal agency that has cultural items as the communal control of the cultural items. The property of the pueblo as a whole that DEPARTMENT OF THE INTERIOR National Park Service is not responsible could not be sold or given away by an for the determinations within this individual. National Park Service notice. The seven cultural items are one Officials of the U.S. Department of the Notice of Intent to Repatriate Cultural wooden stick with white paint, several Interior, U.S. Fish and Wildlife Service, Items: U.S. Department of the Interior, sticks wrapped in a blue cloth, one Office of Law Enforcement, U.S. Fish and Wildlife Service, Office of ceramic bowl, and four Albuquerque, NM, have determined Law Enforcement, Albuquerque, NM anthropomorphic kachina figures. that, pursuant to 25 U.S.C. 3001 (3)(C), During 1999 and 2000, the U.S. the seven cultural items are specific AGENCY: National Park Service, Interior. Department of the Interior, U.S. Fish ceremonial objects needed by traditional ACTION: Notice. and Wildlife Service, Office of Law Native American religious leaders for Enforcement, Albuquerque, NM, the practice of traditional Native Notice is here given in accordance participated in an undercover American religions by their present-day with the Native American Graves Protection and Repatriation Act investigation of several individuals adherents. Officials of the U.S. (NAGPRA), 43 CFR 10.8 (f), of the intent believed to be engaged in the illegal Department of the Interior, U.S. Fish to repatriate cultural items in the trafficking of Native American cultural and Wildlife Service, Office of Law possession of the U.S. Department of the items. Federal agents purchased or Enforcement, Albuquerque, NM, have Interior, U.S. Fish and Wildlife Service, seized several cultural items as part of determined that, pursuant to 25 U.S.C. Office of Law Enforcement, the investigation. On September 10, 3001 (3)(D), the seven cultural items 2002, Joshua Baer and Thomas Cavaliere Albuquerque, NM, that meet the also have ongoing historical, traditional, definitions of sacred objects and each pled guilty to three counts of or cultural importance central to a illegal trafficking of Native American cultural patrimony under 25 U.S.C. Native American group or culture itself, 3001. cultural items obtained in violation of rather than property owned by an 18 U.S.C. 1170 (b). On January 3 and This notice is published as part of the individual. Officials of the U.S. National Park Service’s administrative February 12, 2003, the U.S. District Department of the Interior, U.S. Fish Court for the District of New Mexico responsibilities under NAGPRA, 25 and Wildlife Service, Office of Law U.S.C. 3003 (d)(3). The determinations ordered that all items seized during the Enforcement, Albuquerque, NM, also investigation be forfeited to the U.S. within this notice are the sole have determined that, pursuant to 25 Department of the Interior, U.S. Fish responsibility of the museum, U.S.C. 3001 (2), there is a relationship and Wildlife Service, Office of Law institution, or Federal agency that has of shared group identity that can be Enforcement, Albuquerque, NM, and control of the cultural items. The repatriated to the culturally affiliated reasonably traced between the seven National Park Service is not responsible Indian tribes. The seven cultural items cultural items and the Pueblo of Acoma, for the determinations within this are part of the items forfeited to the U.S. New Mexico. notice. Department of the Interior, U.S. Fish Representatives of any other Indian The 13 cultural items are 1 bundle and Wildlife Service, Office of Law tribe that believes itself to be culturally that includes an ear of corn and eagle Enforcement, Albuquerque, NM. affiliated with the sacred objects/objects feathers; 2 cylindrical buffalo hide The U.S. Department of the Interior, of cultural patrimony should contact containers or parfleches; 1 felt bag that U.S. Fish and Wildlife Service, Office of Special Agent Lucinda D. Schroeder, contains several smaller leather bags of Law Enforcement, Albuquerque, NM, U.S. Fish and Wildlife Service, 4901 herbs; 1 beaded leather bag; 1 leather prepared a summary of the cultural Paseo Del Norte, Albuquerque, NM bag containing beads; 1 leather bag; 2 items obtained during the investigation. 87113, telephone (505) 828–3064, before stone anthropomorphic figures; 1 The U.S. Department of the Interior, August 4, 2003. Repatriation of the headpiece or tablita, consisting of a U.S. Fish and Wildlife Service, Office of sacred objects/objects of cultural painted wooden board; and 3 wooden Law Enforcement, Albuquerque, NM, patrimony to the Pueblo of Santo arrow sticks or hair ties, with migratory also consulted with representatives of Domingo, New Mexico may proceed bird feathers attached. the Hopi Tribe of Arizona; Navajo after that date if no additional claimants During 1999 and 2000, the U.S. Department of the Interior, U.S. Fish Nation, Arizona, New Mexico & Utah; come forward. Pueblo of Acoma, New Mexico; Pueblo and Wildlife Service, Office of Law of Jemez, New Mexico; Pueblo of The U.S. Department of the Interior, Enforcement, Albuquerque, NM, Laguna, New Mexico; Pueblo of Santo U.S. Fish and Wildlife Service, Office of participated in an undercover Domingo, New Mexico; and Zuni Tribe Law Enforcement, Albuquerque, NM, is investigation of several individuals of the Zuni Reservation, New Mexico. responsible for notifying the Hopi Tribe believed to be engaged in the illegal Representatives of the Pueblo of of Arizona; Navajo Nation, Arizona, trafficking of Native American cultural Acoma, New Mexico identified the New Mexico & Utah; Pueblo of Acoma, items. Federal agents purchased or seven cultural items as ceremonial New Mexico; Pueblo of Jemez, New seized several cultural items as part of objects needed for the practice of Mexico; Pueblo of Laguna, New Mexico; the investigation. On September 10, traditional religion. The stick with Pueblo of Santo Domingo, New Mexico; 2002, Joshua Baer and Thomas Cavaliere white paint is needed for the ceremonial and Zuni Tribe of the Zuni Reservation, each pled guilty to three counts of rabbit hunt. The sticks wrapped in the New Mexico that this notice has been illegal trafficking of Native American blue cloth are prayer sticks removed published. cultural items obtained in violation of
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18 U.S.C. 1170 (b). On January 3 and and Wildlife Service, Office of Law DATES: The closure is effective June 30, February 12, 2003, the U.S. District Enforcement, Albuquerque, NM, have 2003, and will remain in effect Court for the District of New Mexico determined that, pursuant to 25 U.S.C. indefinitely. ordered that all items seized during the 3001 (3)(D), the 13 cultural items also investigation be forfeited to the U.S. have ongoing historical, traditional, or ADDRESSES: A map is available for Department of the Interior, U.S. Fish cultural importance central to a Native inspection at the Bureau of and Wildlife Service, Office of Law American group or culture itself, rather Reclamation’s Western Colorado Area Enforcement, Albuquerque, NM, and than property owned by an individual. Office located at 835 East Second repatriated to the culturally affiliated Officials of the U.S. Department of the Avenue, Durango, Colorado. The map Indian tribes. The 13 cultural items are Interior, U.S. Fish and Wildlife Service, may be viewed between 8 a.m. and 4 part of the items forfeited to the U.S. Office of Law Enforcement, p.m. Monday through Friday, except on Department of the Interior, U.S. Fish Albuquerque, NM, also have determined Federal holidays. and Wildlife Service, Office of Law that, pursuant to 25 U.S.C. 3001 (2), FOR FURTHER INFORMATION CONTACT: Bill Enforcement, Albuquerque, NM. there is a relationship of shared group Walsh, Bureau of Reclamation, Western The U.S. Department of the Interior, identity that can be reasonably traced Colorado Area Office, (970) 385–6554, U.S. Fish and Wildlife Service, Office of between the 13 sacred objects/objects of Law Enforcement, Albuquerque, NM, or Doug Hendrix, Bureau of cultural patrimony and the Pueblo of Reclamation, Office of Public Affairs, prepared a summary of the cultural Santo Domingo, New Mexico. items obtained during the investigation. (801) 524–3837. Representatives of any other Indian The U.S. Department of the Interior, SUPPLEMENTARY INFORMATION: tribe that believes itself to be culturally This U.S. Fish and Wildlife Service, Office of action is being taken under 43 CFR Law Enforcement, Albuquerque, NM, affiliated with the sacred objects/objects of cultural patrimony should contact 423.3 to improve facility security and also consulted with representatives of public safety. Reclamation will be the Hopi Tribe of Arizona; Navajo Special Agent Lucinda D. Schroeder, U.S. Fish and Wildlife Service, 4901 prohibiting all public access on Nation, Arizona, New Mexico & Utah; Reclamation lands in and around Ridges Pueblo of Acoma, New Mexico; Pueblo Paseo Del Norte, Albuquerque, NM 87113, telephone (505) 828–3064, before Basin during construction of the of Jemez, New Mexico; Pueblo of Animas-La Plata Project. This is being Laguna, New Mexico; Pueblo of Santo August 4, 2003. Repatriation of the sacred objects/objects of cultural done to protect the public from Domingo, New Mexico; and Zuni Tribe construction activities and to protect the of the Zuni Reservation, New Mexico. patrimony to the Pueblo of Santo Domingo, New Mexico may proceed construction workforce from public Representatives of the Pueblo of Santo activities such as discharging weapons. Domingo, New Mexico identified the 13 after that date if no additional claimants The following acts are prohibited within cultural items as ceremonial objects come forward. the Ridges Basin closure area: needed for the practice of traditional The U.S. Department of the Interior, religion. They considered the bundle U.S. Fish and Wildlife Service, Office of (a) Trespassing, entering, or remaining with the ear of corn and eagle feathers Law Enforcement, Albuquerque, NM, is in or upon property or real property not to be a very sacred object that was not responsible for notifying the Hopi Tribe open to the public (closed areas). supposed to be removed from the kiva. of Arizona; Navajo Nation, Arizona, Exceptions: Construction contractor Similar bundles have been identified in New Mexico & Utah; Pueblo of Acoma, personnel that have authorization from the anthropological literature as corn New Mexico; Pueblo of Jemez, New Reclamation, law enforcement and fire mothers that are necessary for a variety Mexico; Pueblo of Laguna, New Mexico; department personnel and Reclamation of sacred, ritual, political, and social Pueblo of Santo Domingo, New Mexico; employees acting within the scope of purposes. They identified the two and Zuni Tribe of the Zuni Reservation, their employment, and any others who buffalo hide parfleches as being needed New Mexico that this notice has been have received expressed written to hold medicine items used in religious published. authorization from Reclamation to enter ceremonies. They identified the two the closure area. Dated: May 27, 2003. anthropomorphic figures as items John Robbins, (b) Vandalizing, destroying, necessary for religious purposes. They manipulating, injuring, contaminating, identified the tablita and hair ties as Assistant Director, Cultural Resources. [FR Doc. 03–16808 Filed 7–2–03; 8:45 am] defacing, depositing, abandoning, items worn in particular religious dumping, damaging, taking, or ceremonies. BILLING CODE 4310–70–S occupying property and real property of The representatives of the Pueblo of the United States, or other property, not Santo Domingo, New Mexico identified all 13 cultural items as the communal DEPARTMENT OF THE INTERIOR under one’s lawful control and property of the pueblo as a whole that possession. Bureau of Reclamation could not be sold or given away by an This order is posted in accordance with individual. Closure Order Establishing 43 CFR 423.3(b). Violation of this Officials of the U.S. Department of the Prohibitions at Ridges Basin, La Plata prohibition or any prohibition listed in Interior, U.S. Fish and Wildlife Service, County, CO 43 CFR 423 is punishable by fine, or Office of Law Enforcement, imprisonment for not more than 6 Albuquerque, NM, have determined AGENCY: Bureau of Reclamation, months, or both. that, pursuant to 25 U.S.C. 3001 (3)(C), Interior. the 13 cultural items are specific Dated: June 23, 2003. ceremonial objects needed by traditional ACTION: Notice of closure. Carol DeAngelis, Native American religious leaders for Area Manager, Western Colorado Area Office, the practice of traditional Native SUMMARY: The Bureau of Reclamation is Bureau of Reclamation—Upper Colorado American religions by their present-day prohibiting public access and activities Region. adherents. Officials of the U.S. on Reclamation land in Ridges Basin, La [FR Doc. 03–16843 Filed 7–2–03; 8:45 am] Department of the Interior, U.S. Fish Plata County, Colorado. BILLING CODE 4310–MN–P
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INTERNATIONAL TRADE Volume 68, Number 78, page 20029 on accurate up to date account on the COMMISSION April 23, 2003, allowing for a 60 day status of officers hired/redeployed. This comment period. enables COPS to assess the hiring/ [USITC SE–03–020] The purpose of this notice is to allow redeployment progress of awarded Sunshine Act Meeting for an additional 30 days for public grants. This information is also utilized comment until September 2, 2003. This by the Grant Monitoring Division for AGENCY HOLDING THE MEETING: United process is conducted in accordance with pre-site preparing and the Grants States International Trade Commission. 5 CFR 1320.10. Administration Division to further Written comments and/or suggestions TIME AND DATE: July 11, 2003 at 2 p.m. enhance the customer service regarding the items contained in this component of the COPS Office. The PLACE: Room 101, 500 E Street, SW., notice, especially the estimated public Program, Policy Support and Evaluation Washington, DC 20436, Telephone: burden and associated response time, Division uses this information for (202) 205–2000. should be directed to the Office of evaluation of the programs funded by STATUS: Open to the public. Management and Budget, Office of the COPS Office as well as the MATTERS TO BE CONSIDERED: Information and Regulatory Affairs, development of future programs. 1. Agenda for future meetings: none. Attention Department of Justice Desk (5) An estimate of total number of 2. Minutes. Officer, Washington, DC 20503. respondents and the amount of time 3. Ratification List. Additionally, comments may be estimated for an average responded to 4. Inv. Nos. 731–TA–1039–1041 submitted to OMB via facsimile to (202) respond: There will be a total of 11,000 (Preliminary) (Wax and Wax Resin 395–7285. respondents providing information on Thermal Transfer Ribbons from France, Written comments and suggestions 17,450 grant awards. There will be Japan, Korea)—briefing and vote. (The from the public and affected agencies 17,000 responses to the hiring survey, at Commission is currently scheduled to concerning the proposed collection of .25 hours per response, for a total of transmit its determination to the information are encouraged. Your 4,250 hours. There will be 450 Secretary of Commerce on or before July comments should address one or more responses to the MORE survey, at one 14, 2003; Commissioners’ opinions are of the following four points: hour per response, for a total of 450 currently scheduled to be transmitted to (1) Evaluate whether the proposed hours. the Secretary of Commerce on or before collection of information is necessary (6) An estimated of the additional July 21, 2003.) for the proper performance of the public burden (in hours) associated with 5. Outstanding action jackets: none. functions of the agency, including the collection: The total estimated In accordance with Commission whether the information will have burden on the public is 4,700 hours policy, subject matter listed above, not practical utility; annually. disposed of at the scheduled meeting, (2) Evaluate the accuracy of the If additional information is required may be carried over to the agenda of the agency’s estimate of the burden of the contact: Brenda Dyer, Deputy Clearance following meeting. proposed collection of information, Officer Information Management and including the validity of the Security Staff, Justice Management Issued: July 1, 2003. methodology and assumptions used; Division, United States Department of By order the Commission: (3) Enhance the quality, utility, and Justice, 601 D Street NW., Patrick Henry Marilyn R. Abbott, clarity of the information to be Building, Suite 1600, NW., Washington, Secretary to the Commission. collected; and DC 20530. [FR Doc. 03–17139 Filed 7–1–03; 3:56 pm] (4) Minimize the burden of the Dated: June 24, 2003. BILLING CODE 7020–02–P collection of information on those who are to respond, including through the Brenda Dyer, use of appropriate automated, Deputy Clearance Officer, United States Department of Justice. DEPARTMENT OF JUSTICE electronic, mechanical, or other technological collection techniques or [FR Doc. 03–16818 Filed 7–2–03; 8:45 am] Office of Community Oriented Policing other forms of information technology, BILLING CODE 4410–AT–M Services; Agency Information e.g., permitting electronic submission of Collection Activities: Proposed responses. DEPARTMENT OF JUSTICE Collection; Comments Requested Overview of This Information Collection Federal Bureau of Investigation ACTION: 30-Day notice of information collection under review: revision of (1) Type of Information Collection: Agency Information Collection currently approved collection; COPS Revision of currently approved Activities: Proposed Collection; Count Survey. collection Comments Requested (2) Title of the Form/Collection: COPS The Department of Justice (DOJ) Count Survey ACTION: Notice of information collection Office of Community Oriented Policing (3) Agency form number, if any, and under review; revision of a currently Services (COPS) has submitted the the applicable component of the approved collection; Violent Criminal following information collection request Department of Justice sponsoring the Apprehension Program (VICAP) Crime to the Office of Management and Budget collection. Form: COPS 301/01. Office of Analysis Report. (OMB) for review and approval in Community Oriented Policing Services. accordance with the Paperwork (4) Affected public who will be asked The Department of Justice (DOJ), Reduction Act of 1995. The proposed or required to respond, as well as a brief Federal Bureau of Investigation (FBI) information collection is published to abstract: Primary: The COPS Count has submitted the following information obtain comments from the public and Project surveys agencies that have been collection request to the Office of affected agencies. This proposed awarded a Hiring and/or MORE grants Management and Budget (OMB) for information collection was previously from the COPS Office. Other: None. The review and approval in accordance with published in the Federal Register information collected provides an the procedures of the Paperwork
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Reduction Act of 1995. The proposed pattern crimes will be provided whether the information will have information collection is published to information to initiate a coordinated practical utility; obtain comments from the public and multi-agency investigation to expedite (2) Evaluate the accuracy of the affected agencies. Comments are identification and apprehension of agencies estimate of the burden of the encouraged and will be accepted for violent criminal offenders (e.g., serial proposed collection of information, ‘‘sixty days’’ until September 2, 2003. murderers, serial rapists). including the validity of the This process is conducted in accordance (5) An estimate of the total number of methodology and assumptions used; with 5 CFR 1320.10. respondents and the amount of time (3) Enhance the quality, utility, and Written comments and suggestions estimated for an average respondent to clarity of the information to be from the public and affected agencies respond: 10,000 respondents at an collected; and concerning the proposed collection of average of one hour per response. (4) Minimize the burden of the information are encouraged. Your (6) An estimate of the annual total collection of information on those who comments should address one or more public burden (in hours) associated with are to respond, including through the of the following four points: the collection: 10,000 total burden use of appropriate automated, (1) Evaluate whether the proposed hours. electronic, mechanical, or other collection of information is necessary If additional information is required technological collection techniques or for the proper performance of the contact: Ms. Brenda E. Dyer, Deputy other forms of information technology, functions of the agency, including Clearance Officer, United States e.g., permitting electronic submission of whether the information will have Department of Justice, Information responses. practical utility; Management and Security Staff, Justice Comments and/or suggestions (2) Evaluate the accuracy of the Management Division, 601 D Street, regarding the items(s) contained in this agencies estimate of the burden of the Northwest, Washington, DC 20530. notice, especially regarding the proposed collection of information, Dated: June 27, 2003. estimated public burden and associated including the validity of the response time should be directed to Brenda E. Dyer, methodology and assumptions used; Unit Chief Arthur L. Grovner, (3) Enhance the quality, utility, and Deputy Clearance Officer, U.S. Department Supervisory Special Agent, VICAP, FBI of Justice. clarity of the information to be Academy, Quantico, VA 22135. collected; and [FR Doc. 03–16816 Filed 7–2–03; 8:45 am] (4) Minimize the burden of the BILLING CODE 4410–02–M Overview of This Information collection of information on those who Collection are to respond, including through the (1) Type of Information Collection: use of appropriate automated, DEPARTMENT OF JUSTICE Revision of a currently approved collection. electronic, mechanical, or other Federal Bureau of Investigation technological collection techniques or (2) Title of the Form/Collection: other forms of information technology, Agency Information Collection Violent Criminal Apprehension Program e.g., permitting electronic submission of Activities: Proposed Collection; (VICAP) Crime Analysis Report. responses. Comments Requested (3) Agency form number, if any, and Comments and/or suggestions the applicable component of the regarding the item(s) contained in this ACTION: Notice of information collection Department of Justice sponsoring the notice, especially regarding the under review; revision of a currently collection: FD–676. Department of estimated public burden and associated approved collection; Violent Criminal Justice, Federal Bureau of Investigation, response time should be directed to Apprehension Program (VICAP) Crime Violent Criminal Apprehension Program Unit Chief Arthur L. Grovner, Analysis Report. Unit. Supervisory Special Agent, VICAP, FBI (4) Affected public who will be asked Academy, Quantico, VA 22135. The Department of Justice (DOJ), or required to respond, as well as a brief Federal Bureau of Investigation (FBI) abstract: Primary: State, Local, or Tribal Overview of This Information has submitted the following information Government. Brief Abstract: Collects Collection collection request to the Office of data at crime scenes (e.g., unsolved (1) Type of Information Collection: Management and Budget (OMB) for murders or sexual assaults) for analysis Revision of a currently approved review and approval in accordance with by VICAP staff of the FBI. Law collection. the procedures of the Paperwork enforcement agencies reporting similar (2) Title of the Form/Collection: Reduction Act of 1995. The proposed pattern crimes will be provided Violent Criminal Apprehension Program information collection is published to information to initiate a coordinated (VICAP) Crime Analysis Report. obtain comments from the public and multi-agency investigation to expedite (3) Agency form number, if any, and affected agencies. Comments are identification and Apprehension of the applicable component of the encouraged and will be accepted for violent criminal offenders (e.g., serial Department of Justice sponsoring the ‘‘sixty days’’ until September 2, 2003. murderers; serial rapists). collection: FD–676. Department of This process is conducted in accordance (5) An estimate of the total number of Justice, Federal Bureau of Investigation, with 5 CFR 1320.10. respondents and the amount of time Violent Criminal Apprehension Program Written comments and suggestions estimated for an average respondent to Unit. from the public and affected agencies respond: 10,000 respondents at an (4) Affected public who will be asked concerning the proposed collection of average of one hour per response. or required to respond, as well as a brief information are encouraged. Your (6) An estimate of the annual total abstract: Primary: State, Local, or Tribal comments should address one or more public burden (in hours) associated with Government. Brief Abstract: Collects of the following four points: the collection: 10,000 total burden data at crime scenes (e.g., unsolved (1) Evaluate whether the proposed hours. murders or sexual assaults) for analysis collection of information is necessary If additional information is required by VICAP staff of the FBI. Law for the proper performance of the contact: Ms. Brenda E. Dyer, Deputy enforcement agencies reporting similar functions of the agency, including Clearance Officer, United States
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Department of Justice, Information including the validity of the of Justice, 601 D Street NW., Patrick Management and Security Staff, Justice methodology and assumptions used; Henry Building, Suite 1600, Management Division, 601 D Street, (3) Enhance the quality, utility and Washington, DC 20503. Northwest, Washington, DC 20530. clarity of the information to be Dated: June 27, 2003. Dated: June 30, 2003. collected; and (4) Minimize the burden of the Brenda E. Dyer, Brenda E. Dyer, collection of information on those who Deputy Clearance Officer, United States Deputy Clearance Officer, U.S. Department are to respond, including through the Department of Justice. of Justice. use of appropriate automated, [FR Doc. 03–16817 Filed 7–2–03; 8:45 am] [FR Doc. 03–16939 Filed 7–2–03; 8:45 am] electronic, mechanical, or other BILLING CODE 4410–18–M BILLING CODE 4410–02–M technological collection techniques or other forms of information technology, e.g., permitting electronic submission of DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE responses. Office of Justice Programs Office of Justice Programs Overview of This Information [OJP(OJJDP) Docket No. 1380] Collection Agency Information Collection (1) Type of information collection: Office of Juvenile Justice and Activities: Proposed Collection; Delinquency Prevention: Meeting of Comments Requested Revision of a currently approved collection. the Coordinating Council on Juvenile Justice and Delinquency Prevention ACTION: 60-day notice of information (2) The title of the Form/Collection: The Annual Survey of Jails (ASJ). collection under review: revision of a AGENCY: Office of Juvenile Justice and (3) Agency form number, if any, and currently approved collection: annual Delinquency Prevention, Office of the applicable component of the survey of jails. Justice Programs, Justice. Department of Justice sponsoring the ACTION: Notice of meeting. The Department of Justice (DOJ), collection: Form Number: CJ–5, CJ–5A, Office of Justice Programs, Bureau of CJ–5B, CJ–5B Addendum, and CJ–5C. SUMMARY: The Office of Juvenile Justice Justice Statistics has submitted the Bureau of Justice Statistics, Office of and Delinquency Prevention is following information collection request Justice Programs, United States announcing the meeting of the to the Office of Management and Budget Department of Justice. Coordinating Council on Juvenile (OMB) for review and approval in (4) Affected public who will be asked Justice and Delinquency Prevention. accordance with the Paperwork to respond, as well as a brief abstract: This meeting will be open to the public. Primary: County and City jail authorities Reduction Act of 1995. The proposed DATES: Friday, July 18, 2003, from 10 and Tribal authorities. This form is the information collection is published to a.m. to 1 p.m. (ET). only collection effort that provides an obtain comments from the public and ADDRESSES: The meeting will take place affected agencies. Comments are ability to maintain important jail statistics in years between jail censuses. at the U.S. Department of Justice, Office encouraged and will be accepted for of Justice Programs, Main Conference ‘‘sixty days’’ until September 2, 2003. The ASJ enables the Bureau; Federal, State, and local correctional Room, 3rd Floor, 810 Seventh Street This process is conducted in accordance NW., Washington, DC 20531. with 5 CFR 1320.10. administrators; legislators; researchers; and planners to track growth in the FOR FURTHER INFORMATION CONTACT: If you have comments especially on number of jails and their capacities Daryel Dunston, Program Manager, the estimated public burden or nationally; as well as, track changes in Juvenile Justice Resource Center, at: associated response time, suggestions, the demographics and supervision 301–519–6473, or Karen Boston, or need a copy of the proposed status of jail population and the Administrative Coordinator, Juvenile information collection instrument with prevalence of crowding. Justice Resource Center, at: 301–519– instructions or additional information, (5) An estimate of the total number of 5535. [These are not toll-free numbers.] please contact Todd D. Minton, respondents and the amount of time SUPPLEMENTARY INFORMATION: The Statistician, (202) 305–9630, Bureau of estimated for an average respondent to Coordinating Council on Juvenile Justice Statistics, Office of Justice respond: Nine hundred and forty-six Justice and Delinquency Prevention, Programs, U.S. Department of Justice, respondents each taking an average of established pursuant to section 3(2)A of 810 Seventh Street, NW., Washington, 75 minutes to respond for collection the Federal Advisory Committee Act (5 DC 20531. forms CJ–5, CJ–5A, and, CG–5B. Seventy U.S.C. App. 2), will meet to carry out its Request written comments and respondents each taking an average of advisory functions under Section 206 of suggestions from the public and affected 30 minutes to respond for collection the Juvenile Justice and Delinquency agencies concerning the proposed form CJ—5B Addendum. One hundred Prevention Act of 1974, 42 U.S.C. 5601, collection of information are and twenty respondents each taking an et seq. Documents such as meeting encouraged. Your comments should average of 4 hours to respond for announcements, agendas, minutes, and address one or more of the following collection from CJ–5C. interim and final reports will be four points: (6) An estimate of the total public available on the Council’s Web page at (1) Evaluate whether the proposed burden (in hours) associated with the ojjdp.ncjrs.org/council/index.html. collection of information is necessary collection: There are an estimated 1,698 for the proper performance of the annual total burden hours associated Oral and Written Comments functions of the agency, including with the collection. Requests for the opportunity to whether the information will have If additional information is required, present oral comments during the practical utility; contact: Mrs. Brenda E. Dyer, Deputy meeting must be made in writing, and (2) Evaluate the accuracy of the Clearance Officer, Information received no later than 12 noon (ET), on agency’s estimate of the burden of the Management and Security Staff, Justice Friday, July 11, 2003. Requests should proposed collection of information, Management Division, U.S. Department be sent to Marilyn Roberts, Designated
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Federal Official for the Coordinating Washington, DC 20503 (202–395–7316 / requires that a participant be provided Council on Juvenile Justice and this is not a toll-free number), within 30 with a description of a plan’s special Delinquency Prevention, by fax at: 202– days from the date of this publication in enrollment rules on or before the time 307–2093, or by e-mail, at: the Federal Register. that a participant is offered the [email protected]. In general, each The OMB is particularly interested in opportunity to enroll in a group health individual or group making an oral comments which: plan. These special enrollment rules presentation will be limited to a total • Evaluate whether the proposed generally apply to circumstances in time of 10 minutes. collection of information is necessary which the participant initially declined Written comments may be submitted for the proper performance of the to enroll in a plan, and later wishes to to the Office of Juvenile Justice and functions of the agency, including enroll. Delinquency Prevention, by fax at: 202– whether the information will have The April 8 Interim Rules offer a 307–2093, or by e-mail at: practical utility; model form to be used by group health [email protected]. • Evaluate the accuracy of the plans and health insurance issuers that The Coordinating Council on Juvenile agency’s estimate of the burden of the includes the minimum elements of Justice and Delinquency Prevention proposed collection of information, information mandated by the statute. expects that public statements presented including the validity of the The ICR implements the disclosure at its meetings will not be repetitive of methodology and assumptions used; requirements of HIPAA related to previously submitted oral or written • Enhance the quality, utility, and special enrollment rights. statements. clarity of the information to be Agency: Employee Benefits Security Members of the public who wish to collected; and minimize the burden of Administration. attend the meeting should notify the the collection of information on those Type of Review: Extension of a Juvenile Justice Resource Center at 301– who are to respond, including through currently approved collection. 519–6473 (Daryel Dunston) or at 301– the use of appropriate automated, Title: Notice of Pre-Existing Condition 519–6473 (Karen Boston), by 5 p.m., ET, electronic, mechanical, or other Exclusion under ERISA. on Friday, July 11, 2003. [These are not technological collection techniques or OMB Number: 1210–0102. toll-free numbers.] To register for the other forms of information technology, Affected Public: Business or other for- meeting online, go to ojjdp.ncjrs.org/ e.g., permitting electronic submission of profit; Not-for-profit institutions; and council/meetings.html. responses. Individuals or households. Agency: Employee Benefits Security Note: For security purposes, photo Frequency: On occasion. Administration. identification will be required for admission Type of Response: Third party Type of Review: Extension of a to the meeting. disclosure. currently approved collection. Number of Respondents: 1,300,000. Dated: June 17, 2003. Title: Notice of Enrollment Rights. OMB Number: 1210–0101. Number of Annual Responses: J. Robert Flores, 8,570,000. Administrator, Office of Juvenile Justice and Affected Public: Business or other for- profit; Not-for-profit institutions; and Total Estimated Burden Hours: 9,004. Delinquency Prevention. Total Annualized Capital/Startup [FR Doc. 03–16917 Filed 7–2–03; 8:45 am] Individuals or households. Frequency: On occasion. Costs: $0. BILLING CODE 4410–18–P Type of Response: Third party Total Annual Costs (operating/ disclosure. maintaining systems or purchasing Number of Respondents: 2,600,000. services): $1,088,359. DEPARTMENT OF LABOR Number of Annual Responses: Description: Section 734 of the Employee Retirement Income Security Office of the Secretary 9,602,000. Total Estimated Burden Hours: 7,200. Act of 1974 (ERISA), added by the Submission for OMB Review; Total Annualized Capital/Startup Health Care Portability and Comment Request Costs: $0. Accountability Act of 1996 (HIPAA) Total Annual Costs (operating/ authorized the Secretary of Labor, in June 26, 2003. maintaining systems or purchasing coordination with the Secretary of The Department of Labor (DOL) has services): $841,000. Health and Human Services (HHS) and submitted the following public Description: Section 734 of the the Secretary of the Treasury, to information collection requests (ICRs) to Employee Retirement Income Security promulgate such regulations as may be the Office of Management and Budget Act of 1974 (ERISA), added by the necessary or appropriate to carry out the (OMB) for review and approval in Health Care Portability and provisions of the statute. Accordingly, accordance with the Paperwork Accountability Act of 1996 (HIPAA), Interim Rules implementing the Reduction Act of 1995 (Pub. L. 104–13, authorized the Secretary of Labor, in Portability Requirement for Group 44 U.S.C. Chapter 35). A copy of each coordination with the Secretary of Health Plans were published on April 8, individual ICR, with applicable Health and Human Services (HHS) and 1997, (62 FR 16920) (April 8 Interim supporting documentation, may be the Secretary of the Treasury, to Rules). obtained by calling the Department of promulgate such regulations as may be Under the April 8 Interim Rules, a Labor. To obtain documentation, contact necessary or appropriate to carry out the group health plan or health insurance Darrin King on 202–693–4129 (this is provisions of the statute. Accordingly, issuer may not impose any pre-existing not a toll-free number) or E-mail: Interim Rules Implementing the conditions exclusion on a participant [email protected]. Portability Requirement for Group unless that participant has been notified Comments should be sent to Office of Health Plan were published on April 8, in writing that the plan includes pre- Information and Regulatory Affairs, 1997, (62 FR 16920) (April 8 Interim existing condition exclusion provisions, Attn: OMB Desk Officer for the Rules). that a participant has a right to Employee Benefits Security In order to improve participants’ demonstrate any periods for prior Administration (EBSA), Office of understanding of their rights under an creditable coverage, and that the plan or Management and Budget, Room 10235, employer’s group health plan, HIPAA issuer will assist the participant in
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obtaining a certificate of prior coverage materials sufficient to establish prior Signed at Washington, DC this 24th day of from any prior plan or issuer, if creditable coverage. June 2003. necessary. In addition, the April 8 Elliott S. Kushner, Interim Rules require that before a plan Ira L. Mills, Certifying Officer, Division of Trade or issuer imposes a pre-existing Departmental Clearance Officer. Adjustment Assistance. condition exclusion on a particular [FR Doc. 03–16873 Filed 7–2–03; 8:45 am] [FR Doc. 03–16900 Filed 7–2–03; 8:45 am] participant, it must first disclose that BILLING CODE 4510–29–M BILLING CODE 4510–30–P determination in writing, including the basis of the decision, and an explanation of any appeal procedure DEPARTMENT OF LABOR DEPARTMENT OF LABOR established by the plan or issuer. Specific disclosure requirements Employment and Training Employment and Training relating to pre-existing exclusions Administration Administration constitute the ICR. [TA–W–50,598] Agency: Employee Benefits Security [TA–W–51,378] Administration. Blandin Paper Co. Including Type of Review: Extension of a American Quality Ceramics, Tempo Temporary Workers of Search currently approved collection. Lighting, Inc., Bangs, Texas; Amended Resources, AMS Staff Leasing, Applied Title: Establishing Creditable Certification Regarding Eligibility to Management, Grand Rapids MN; Coverage. Apply for Worker Adjustment Amended Certification Regarding OMB Number: 1210–0103. Assistance Eligibility To Apply for Worker Affected Public: Business or other for- Adjustment Assistance profit; Not-for-profit institutions; and In accordance with section 223 of the In accordance with section 223 of the Individuals or households. Trade Act of 1974 (19 U.S.C. 2273) the Trade Act of 1974 (19 U.S.C. 2273) the Frequency: On occasion. Department of Labor issued a Department of Labor issued a Type of Response: Third party Certification of Eligibility to Apply for Certification of Eligibility to Apply for disclosure. Worker Adjustment Assistance on April Number of Respondents: 2,600,000. Worker Adjustment Assistance on 23, 2003, applicable to workers of February 13, 2003, applicable to Number of Annual Responses: American Quality Ceramics, Bangs, 44,396,000. workers of Blandin Paper Company, Texas. The notice was published in the Grand Rapids, Minnesota. The notice Total Estimated Burden Hours: Federal Register on May 7, 2003 (68 FR was published in the Federal Register 351,150. 24504). on March 10, 2003 (68 FR 11410). Total Annualized Capital/Startup At the request of the State agency, the Costs: $0. At the request of the State agency, the Department reviewed the certification Total Annual Costs (operating/ Department reviewed the certification for workers of the subject firm. maintaining systems or purchasing for workers of the subject firm. The Information provided by the State services): $34,689,450. workers were engaged in the production shows that temporary workers of Search Description: Section 734 of the of collectible plates and mugs. Resources, AMS Staff Leasing and Employee Retirement Income Security New information shows that Tempo Applied Management were employed at Act of 1974 (ERISA), added by the Lighting, Inc. is the parent firm of Blandin Paper Company to produce Health Care Portability and American Quality Ceramics. coated magazine paper at the Grand Accountability Act of 1996 (HIPAA) Information also shows that workers Rapids, Minnesota location of the authorized the Secretary of Labor, in separated from employment at the subject firm. coordination with the Secretary of subject firm had their wages reported Based on these findings, the Health and Human Services (HHS) and under a separate unemployment Department is amending this the Secretary of the Treasury, to insurance (UI) tax account for Tempo certification to include temporary promulgate such regulations as may be Lighting, Inc. workers of Search Resources, AMS Staff necessary or appropriate to carry out the Leasing and Applied Management, provisions of the statute. Section Accordingly, the Department is Grand Rapids, Minnesota employed at 701(e)(3) requires that the Secretary of amending the certification to properly Blandin Paper Company, Grand Rapids, Labor issue rules to prevent any entity’s reflect this matter. Minnesota. failure to provide and individual with a The intent of the Department’s The intent of the Department’s certification of prior health coverage, or certification is to include all workers of certification is to include all workers of certain other required disclosures, from American Quality Ceramics, Bangs who Blandin Paper who were adversely adversely affecting the individual’s were adversely affected by increased affected by the shift in production to subsequent health coverage. imports. Canada and Finland. On April 8, 1997 (67 FR 16894), the The amended notice applicable to Department issues Interim Final Rules, The amended notice applicable to TA–W–50,598 is hereby issued as requiring a group health plan to provide TA–W–51,378 is hereby issued as follows: a written certificate suitable for follows: establishing the prior creditable ‘‘All workers of American Quality All workers of Blandin Paper, Grand coverage of a participant or beneficiary. Ceramics, Tempo Lighting, Inc., Bangs, Rapids, Minnesota including temporary workers of Search Resources, AMS Staff The April 8 Interim Final Rules offer Texas, who became totally or partially Leasing and Applied Management, Grand separated from employment on or after model certification and notice forms, Rapids, Minnesota engaged in employment containing the minimum information March 31, 2002, through April 23, 2005, are related to the production of coated magazine mandated by the statute, to be used by eligible to apply for adjustment assistance paper at Blandin Paper Company, Grand group health plans and health insurance under section 223 of the Trade Act of 1974.’’ Rapids, Minnesota, who became totally or issuers. This ICR covers the provision of partially separated from employment on or
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after January 17, 2002, through February 13, The investigation revealed that TA–W–51,978; Atlas Cold Storage 2005, are eligible to apply for adjustment criterion (a)(2)(A)(I.C.) (Increased Midwest Ltd, Green Bay, WI assistance under section 223 of the Trade Act imports) and (a) (2)(B) (II.B) (No shift in TA–W–51,974; ICT Group, of 1974. production to a foreign country) have Christianburg, VA Signed at Washington, DC, this 24th day of not been met. TA–W–51,924; Spectrum Contact June 2003. TA–W–51,106; Certainteed Corp., Services, d/b/a Spectrum Integrated Richard Church, Nesquehoning, PA Services, a subsidiary of Level 3 Certifying Officer, Division of Trade TA–W–51,660; Leonard Kunkin Communications, Liberty Lake, WA Adjustment Assistance. Associates, Inc., Souderton, PA TA–W–51,919; Chevron ‘‘ Texaco, [FR Doc. 03–16902 Filed 7–2–03; 8:45 am] TA–W–51,752; Bay Machinery Co., Customer Service Department, BILLING CODE 4510–30–P Blissfield, MI Concord, CA TA–W–51,525 & A; West Branch TA–W–51,834; Agilent Technologies, Industries, West Branch, MI and Inc., Information Technology Div. DEPARTMENT OF LABOR Tawas Tool Co., East Tawas, MI (IT), Colorado Springs, CO TA–W–51,453; Jersey Shore Steel Co., TA–W–51,892; International Women’s Employment and Training Jersey Shore, PA Apparel, Inc., a subsidiary of Administration TA–W–51,194; Weyerhaeuser Co., Hartmarx Corp., Easton, PA Notice of Determinations Regarding Plymouth, NC TA–W–51,822; Citimortgage, Inc., Eligibility To Apply for Worker TA–W–51,113; Toppan Electronics, Inc., Farmington Hills, MI Adjustment Assistance and NAFTA including leased workers of TA–W–51,742; Entronix International, Transitional Adjustment Assistance Manpower, Inc., and Inc., Plymouth, MN Payrolling.Com, a subsidiary of The investigation revealed that In accordance with section 223 of the Toppan Printing, Ltd, San Diego, criterion (a)(2)(A) (I.A) (no employment Trade Act of 1974, as amended, the CA declines) have not been met. Department of Labor herein presents TA–W–51,977; Fishing Vessel (F/V) summaries of determinations regarding Vicki Rae, San Point, AK TA–W–51,845; Fishing Vessel (F/V) eligibility to apply for trade adjustment TA–W–51,968; International Uranium Dusty, Pelican, AK assistance for workers (TA-W) issued (USA) Corp., a subsidiary of TA–W–51,980; Decibel Products, Dallas, during the period of June 2003. International Uranium Corp., White TX In order for an affirmative Mesa Mill, Blanding, UT The investigation revealed that determination to be made and a TA–W–51,871; Citation Corp., Camden, criteria (a)(2)(A)(I.B) (Sales or certification of eligibility to apply for TN production, or both, did not decline) worker adjustment assistance to be TA–W–51,762; Ingersoll Milling and (II.B) (has shifted production to a issued, each of the group eligibility Machine Co., a div. of Ingersoll county not under the free trade requirements of section 222 of the Act Iynternational, Inc., Rockford, IL agreement with the U.S) have not been must be met. TA–W–51,751; McMillen Lumber, met. (1) That a significant number or Sheffield, PA TA–W–51,861; Rosewood proportion of the workers in the TA–W–51,728; Inland Paperboard and Manufacturing Co., a div. of Blauer workers’ firm, or an appropriate Packaging, Inc., Elizabethton, TN Manufacturing Co., Inc., subdivision thereof, have become totally TA–W–51,723; Fishing Vessel (F/V) Charleston, MS or partially separated, or are threatened Sylvia Star, Kodiak, AK TA–W–51,195; Rittman Paperboard, a to become totally or partially separated; TA–W–51,317; Tetley USA, Inc., div. of Caraustar Mill Group, Inc., and Williamsport, PA Rittman, OH (2) That sales or production, or both, TA–W–50,924; Shaw Alloy Piping TA–W–52,000; Fishing Vessel (F/V) of the firm or sub-division have Products, Inc., Shreveport, LA Night Hawk, Warrenton, OR decreased absolutely, and The workers firm does not produce an TA–W–51,971; Fulton Bellows and (3) That increases of imports of article as required for certification under Components, Knoxville, TN articles like or directly competitive with Section 222 of the Trade Act of 1974. The investigation revealed that articles produced by the firm or TA–W–51,913; Metz & Associates, Ltd, criteria (a) (2) (A) (I.C) (increased appropriate subdivision have Dallas, PA imports) and (a)(2)(B) (II.C) (has shifted contributed importantly to the TA–W–50,781; MSX International production to country not under the free separations, or threat thereof, and to the Engineering Services, Inc., a trade agreement with U.S) have not been absolute decline in sales or production subsidiary of MSX International, met. of such firm or subdivision. Inc., CollaborativeEngineering TA–W–51,458; Silicon Graphics, Inc., Management Services Div., Auburn Negative Determinations for Worker Worldwide Manufacturing Hills, MI Adjustment Assistance Organization, including leased TA–W–51,748; Intel Corp., Enterprise workers of Kelly Services, Chippewa In each of the following cases the Products Group, Enterprise Falls, WI investigation revealed that criterion (3) Platforms and Services Div., Test has not been met. A survey of customers Development Engineering, The investigation revealed that indicated that increased imports did not Hillsboro, OR criteria (2) has not been met. The contribute importantly to worker TA–W–51,679; Progress Lighting, Inc., workers firm (or subdivision) is not a separations at the firm. Philadelphia Distribution Center, supplier or downstream producer to None. Philadelphia, PA trade-affected companies. In the following case, the TA–W–51,293; 4B’s Restaurants, Inc., TA–W–51,638; Keystone Powdered investigation revealed that the criteria Libby, MT Metal Co., St. Mary’s, PA for eligibility have not been met for the TA–W–51,610; Asyst Technologies, Inc., TA–W–51,844; Fishing Vessel (F/V) reasons specified. Williston, VT Kindred Spirit, Hoonah, AK
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Affirmative Determinations for Worker TA–W–51,553; Arvin Meritor, Loudon, TA–W–51,554; Greensboro Apparel, Adjustment Assistnace TN: April 9, 2002. Inc., Greensboro, AL: April 21, The following certifications have been TA–W–51,485 & A; Bloomsburg Mills, 2002. issued; the date following the company Inc., New York, NY and Monroe, TA–W–51,507; Perkin Elmer Life and name and location of each NC: March 31, 2002. Analytical Sciences, Norton, OH: determination references the impact TA–W–51,421; Modern Mold & Tool March 15, 2002. date for all workers of such Manufacturing, Inc., Magnus TA–W–51,868; Apparel Cutting, Inc., determination. Molding Div., Pittsfield, MA: March Medley, FL: May 17, 2002. The following certifications have been 19, 2002. TA–W–51,885; Tyco Healthcare/ issued. The requirements of (a)(2)(A) TA–W–51,373; Buckbee-Mears Group, Mallinekrodt, Lafayette (increased imports) of Section 222 have BMC Mask Operations, a Unit of Pharmaceuticals, Inc., Lafayette, IN: been met. BMC Industries, Inc., Cortland, NY: May 27, 2002. TA–W–51,589; Oxford Wire and Cable TA–W–51,820; Orion America, Inc., March 31, 2002. TA–W–51,074; Elliott Turmomachinery Services, Inc., Oxford, MS: April 17, Olney, IL: May 19, 2002. 2002. TA–W–51,934; Darwood Manufacturing Co., Inc., Jeanette, PA: February 21, TA–W–51,437; NTN-BCA Corp., a Co., Pelham, GA: May 30, 2002. 2002. subsidiary of NTN USA, Lititz, PA: TA–W–51,938; The Eureka Co., El Paso, TA–W–51,930; Richards Industries, Inc., March 31, 2002. TX: May 9, 2003. Valve Group, Frenchburg, KY: May TA–W–51,941; Midland Steel Products 27, 2002. TA–W–51,519; Bronze Craft Corp., Nashua, NH: April 11, 2002. Co., Solon, OH: May 19, 2002. TA–W–51,813; S.D. Warren Co. d/b/a TA–W–51,738; Motor Components, LLC, Sappi Fine Paper North America, The following certification has been (formerly known as Purolator Westbrook, ME: May 12, 2002. issued. The requirement of upstream Products), Elmira, NY: May 22, TA–W–51,574; Gator Industries, Inc., supplier to a trade certified primary firm 2003. Hialeah, FL: April 11, 2002. has been met. TA–W–51,629; Ridgeway Clocks, TA–W–51,565; Thyssenkrupp Budd Co., TA–W–51,831; State of Alaska Ridgeway, VA: April 28, 2002. Boby Division, Philadelphia, PA: Commercial Fisheries Entry TA–W–51,621 & A; Stora Enso North April 22, 2002. Commission Permit #S04K649372, America, Wisconsin Rapids Paper Kodiak, AK: May 15, 2002. The following certifications have been Mill, Wisconsin Rapids, WI and TA–W–51,927; Sound Fish, Inc., Fishing issued. The requirements of (a)(2)(B) Biron Paper Mill, Biron, WI: March Vessel (F/V) New York, Hoonah, (shift in production) of Section 222 have 13, 2003. AK: June 2, 2002. TA–W–51,608; Precision Components been met. TA–W–51,943; Fishing Vessel (F/V) Corp., York, PA: April 25, 2002. TA–W–51,821; Moen, Inc., Wheeling, IL: Carolina, Wasilla, AK: June 2, 2002. TA–W–51,543; Rexnord Industries, Inc., May 19, 2002. I hereby certify that the Industrial Chain and Conveyor TA–W–51,833; Ever Corp., Newport, AR: aforementioned determinations were North America Div., Morganton, May 20, 2002. issued during the months of June 2003. NC: April 21, 2002. TA–W–51,836; Advanced Energy Copies of these determinations are TA–W–51,486; Meadwestvaco Corp., Industries, Core Manufacturing, available for inspection in Room C– Envelope Packaging Group, A Fort Collins, CO: May 13, 2002. 5311, U.S. Department of Labor, 200 C.O.P.G. Div., Springfield, MA: TA–W–51,878; Ark-Les Electronic Constitution Avenue, NW., Washington, April 10, 2002. Products Corp., a wholly-owned DC 20210 during normal business hours TA–W–51,669; Shinei USA, Inc., a subsidiary of Ark-Les Corp., or will be mailed to persons who write wholly owned subsidiary of Shinei Gloucester, MA: May 12, 2002. to the above address. International, a wholly owned TA–W–51,917 & A, B; Liberty Dated: June 20, 2003. subsidiary of Solectron Corp., Embroidery Wentworth Corp., including leased workers of Kelly Embroidery Div., Madison, NC, Timothy Sullivan, Service, Hillsboro, OR: January 2, Packaging Div., Madison, NC and Director, Division of Trade Adjustment 2002. Screen Print Div., Madison, NC: Assistance. TA–W–51,808; West Point Stevens, Inc., May 19, 2002. [FR Doc. 03–16907 Filed 7–2–03; 8:45 am] Roanoke Rapids, NC: June 30, 2003. TA–W–51,993; Cummins, Power BILLING CODE 4510–30–P TA–W–51,801; Solid State Securities, Generation Unit, including leased In., a div. of Chamberlain Group, workers of Firstsite Staffing, Fridley, Inc., Hazleton, PA: May 13, 2002. MN: June 4, 2002. DEPARTMENT OF LABOR TA–W–51,769; Hamilton Die Cast, Inc., TA–W–51,694; Component Concepts, Hamilton, OH: December 19, 2001. Employment and Training TA–W–51,706; Midland Steel Products Inc., Thomasville, NC: May 6, 2002. Administration TA–W–51,805; Plexus Electronic Co., Cleveland, OH: April 30, 2002. [TA–W–51,355] TA–W–51,667; American Candy Co., Assembly, a div. of Plexus Corp., Richmond, KY: May 7, 2002. Selma, AL: April 11, 2002. Culp, Inc., Rossville Division, TA–W–51,692; Dana Corp., including TA–W–51,645; Koch Nitrogen Co., Chattanooga, TN; Notice of Negative leased workers of Staff-Co Sterlington, LA: April 21, 2002. Determination Regarding Application Temporary and Manpower TA–W–51,641; TMD Friction, Inc. Liner for Reconsideration and Block Div., including leased Temporary, Pelahatchie, MS: May workers of Southern Employment 6, 2002. By application postmarked May 20, Agency, Inc., Dublin, VA: April 29, TA–W–51,716; FCI Automotive Div., 2003, three workers requested 2002. Brecksville, OH: April 27, 2002. administrative reconsideration of the TA–W–51,619; Sterling and Adams TA–W–51,693; International Comfort Department’s negative determination Bentwood, Inc., Lenoir, NC: April Products Corp. (USA), Fast Parts, regarding eligibility for workers and 25, 2002. Lavergne, TN: April 25, 2002. former workers of the subject firm to
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apply for Trade Adjustment Assistance Signed at Washington, DC, this 16th day of Signed in Washington, DC, this 25th day of (TAA). The denial notice was signed on June, 2003. June 2003. April 28, 2003 and published in the Elliott S. Kushner, Richard Church, Federal Register on May 9, 2003 (68 FR Certifying Officer, Division of Trade Certifying Officer, Division of Trade 25060). Adjustment Assistance. Adjustment Assistance. Pursuant to 29 CFR 90.18(c) [FR Doc. 03–16896 Filed 7–2–03; 8:45 am] [FR Doc. 03–16908 Filed 7–2–03; 8:45 am] reconsideration may be granted under BILLING CODE 4510–30–P the following circumstances: BILLING CODE 4510–30–P (1) If it appears on the basis of facts not previously considered that the DEPARTMENT OF LABOR DEPARTMENT OF LABOR determination complained of was Employment and Training erroneous; Employment and Training (2) If it appears that the determination Administration Administration complained of was based on a mistake [TA–W–51,335] in the determination of facts not previously considered; or [TA–W–51,854] General Electric Industrial Systems, (3) If in the opinion of the Certifying Factory Services, inc., Mineola, NY; Drives & Controls, Inc., Salem, VA; Officer, a mis-interpretation of facts or Notice of Negative Determination Notice of Termination of Investigation of the law justified reconsideration of Regarding Application for the decision. Reconsideration The TAA petition, filed on behalf of Pursuant to section 221 of the Trade workers at Culp, Inc., Rossville Act of 1974, as amended, an By application of June 9, 2003, a Division, Chattanooga, Tennessee investigation was initiated on May 22, petitioner requested administrative engaged in the production of upholstery 2003, in response to a worker petition reconsideration of the Department’s fabrics, was denied because the filed by a company official on behalf of negative determination regarding ‘‘contributed importantly’’ group workers at Factory Services, Inc., eligibility for workers and former eligibility requirement of section 222(3) Mineola, New York. workers of the subject firm to apply for of the Trade Act of 1974, as amended, The petitioner has requested that the Trade Adjustment Assistance (TAA). The denial notice applicable to workers was not met. The ‘‘contributed petition be withdrawn. Consequently, importantly’’ test is generally of General Electric Industrial Systems, the investigation has been terminated. demonstrated through a survey of the Drives and Controls, Inc., Salem, workers’ firm’s customers. The Signed at Washington, DC this 20th day of Virginia was signed on April 24, 2003, Department conducted a survey of the June 2003. and published in the Federal Register subject firm’s major customers regarding Richard Church, on May 9, 2003 (68 FR 25060). their purchases of competitive products Certifying Officer, Division of Trade Pursuant to 29 CFR 90.18(c) in 2000 through October 2002. The Adjustment Assistance. reconsideration may be granted under respondents reported no increased [FR Doc. 03–16912 Filed 7–2–03; 8:45 am] the following circumstances: (1) If it appears on the basis of facts imports. The subject firm did not BILLING CODE 4510–30–M increase its reliance on imports of not previously considered that the upholstery fabrics during the relevant determination complained of was period, nor did it shift production to a DEPARTMENT OF LABOR erroneous; (2) If it appears that the determination foreign source. Employment and Training complained of was based on a mistake The workers allege that production Administration has been shifted to China. in the determination of facts not A company official was contacted in previously considered; or regard to this allegation. As a result, it [TA–W–51,839] (3) If in the opinion of the Certifying was revealed that the company will be Officer, a misinterpretation of facts or of opening a foreign ‘‘finishing’’ plant for GE Transportation Systems Global the law justified reconsideration of the upholstery products in November of Signaling, Circuit Board Division, decision. 2003. This information has no bearing Warrensburg, MO; Notice of The TAA petition was filed on behalf on a revised consideration for subject Termination of Investigation of workers at General Electric Industrial firm workers because (a) the weaving Systems, Drives and Controls, Inc., that was done at the Chatanooga facility Pursuant to section 221 of the Trade Salem, Virginia engaged in activities is not competitive with the finishing Act of 1974, an investigation was related to ‘‘editing and formatting’’ of that will be done at the foreign facility, initiated on May 21, 2003, in response customer instruction manuals. The and (b), the November start date for to a worker petition filed by the State of petition was denied because the production at the foreign facility is Missouri Division of Workforce petitioning workers did not produce an outside the relevant period for this Development, on behalf of workers at article within the meaning of section investigation. GE Transportation Systems Global 222(3) of the Act. Signaling, Circuit Board Division, The petitioner alleges that the Conclusion Warrensburg, Missouri. The petitioning Department did not correctly assess the After review of the application and group of workers is covered by an active worker group functions, that in addition investigative findings, I conclude that certification issued on September 26, to editing and formatting, workers also there has been no error or 2002 and which remains in effect (TA– ‘‘create, develop and publish’’ customer misinterpretation of the law or of the W–40,621). Consequently, further instruction manuals. The petitioner facts which would justify investigation in this case would serve emphasizes that the operating reconsideration of the Department of instructions contained in these manuals no purpose, and the investigation may Labor’s prior decision. Accordingly, the are essential to the operation of the be terminated. application is denied. products they accompany in the retail
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market and is unclear as to why 27, 2003 and published in the Federal certified eligible to apply for adjustment ‘‘publications’’ should not be Register on April 11, 2003 (68 FR assistance currently under certification considered ‘‘articles’’ as described in 17831). for Trade Adjustment Assistance or section 222 of the Trade Act. Pursuant to 29 CFR 90.18(c) NAFTA–TAA or the company must Review of the initial investigation reconsideration may be granted under supply component parts to the primary reveals that a company official stated the following circumstances: firm and a loss of business with this that content writing and editing was (1) If it appears on the basis of facts manufacturer contributed importantly to not previously considered that the performed at the subject facility, and the workers separation or threat of that this work function was shifted to a determination complained of was separation. Of the six trade certified foreign GE affiliate. However, the erroneous; firms listed by the petitioner, four of the writing performed is sent back to the (2) if it appears that the determination Salem, Virginia facility via electronic complained of was based on a mistake certifications had expired at the time of copy in order to be printed and in the determination of facts not the petition for Gilinsky Logging. The published. Informational material that is previously considered; or remaining two firms (Louisiana Pacific electronically transmitted is not (3) if in the opinion of the Certifying Corporation, Rogue River, Oregon, considered production within the Officer, a misinterpretation of facts or of NAFTA–5001, and Roseburg Sawmill, context of TAA eligibility requirements, the law justified reconsideration of the Roseburg, Oregon, NAFTA–4988) were so there are no imports of products in decision. under existing certifications at the time this instance. Further, as the manual The TAA petition, filed on behalf of of the petition signing. However, does not become a product until it is workers at Gilinsky Logging, Inc., Rogue collectively, these two customers printed, petitioning workers did not River, Oregon engaged in the production constituted a very small portion of produce an ‘‘article’’ within the of logs, was denied because the subject firm business. The initial meaning of the Trade Act of 1974. ‘‘contributed importantly’’ group investigation revealed the layoff Only in very limited instances are eligibility requirement of Section 222(3) occurred as a result of declines in service workers certified for TAA, of the Trade Act of 1974, as amended, business to a customer who represented namely the worker separations must be was not met. The ‘‘contributed the overwhelming majority of business importantly’’ test is generally caused by a reduced demand for their in the relevant period. services from a parent or controlling demonstrated through a survey of the firm or subdivision whose workers workers’ firm’s customers. The Finally, the petitioner alleges that produce an article and who are Department conducted a survey of the about one-third of U.S. consumption of currently under certification for TAA. subject firm’s major customer regarding softwood lumber comes from Canada, its purchases of competitive products in and that this alleged fact should be used Conclusion 2001 and 2002. The respondent reported to verify import eligibility requirements After review of the application and no increased imports. The subject firm for TAA. investigative findings, I conclude that did not import logs during the relevant In assessing import impact, the there has been no error or period, nor did it shift production to a Department considers import trends of misinterpretation of the law or of the foreign source. like or directly competitive products to facts which would justify The petitioner states that the impact determine import impact in the relevant reconsideration of the Department of of Canadian lumber was not taken into period, thus stagnant figures indicating Labor’s prior decision. Accordingly, the account in the original investigation application is denied. regarding layoffs at the subject firm. To foreign production for U.S. support this allegation, he states that the consumption of softwood lumber are Signed at Washington, DC, this 13th day of not relevant to this investigation June, 2003. Department should have looked at the regarding workers producing logs. Elliott S. Kushner, ‘‘last fifteen years’’ of contracts for the Certifying Officer, Division of Trade subject firm, rather than just the major Conclusion Adjustment Assistance. declining customer surveyed for periods [FR Doc. 03–16895 Filed 7–2–03; 8:45 am] in 2001 and 2002. After review of the application and The fifteen year time period BILLING CODE 4510–30–P investigative findings, I conclude that mentioned by the petitioner far exceeds there has been no error or the relevant period of TAA misinterpretation of the law or of the DEPARTMENT OF LABOR investigations, which is four quarters (or facts which would justify one year) preceding the petition date reconsideration of the Department of Employment and Training compared with a representative base Labor’s prior decision. Accordingly, the Administration period. Additionally lumber is not application is denied. competitive with logs, and thus lumber [TA–W–51,084] data is irrelevant to establishing import Signed at Washington, DC, this 20th day of June, 2003. Gilinsky Logging, Inc., Rogue River, impact in connection with TAA OR; Notice of Negative Determination eligibility for this worker group. Elliott S. Kushner, Regarding Application for The petitioner further provides a list Certifying Officer, Division of Trade Reconsideration of NAFTA–TAA certified facilities that Adjustment Assistance. were customers of the subject firm, [FR Doc. 03–16905 Filed 7–2–03; 8:45 am] By application of May 5, 2003, a implying that the subject firm may be BILLING CODE 4510–30–P petitioner requested administrative eligible for secondary upstream supplier reconsideration of the Department’s certification. negative determination regarding For certification on the basis of eligibility for workers and former secondary upstream supplier, the workers of the subject firm to apply for secondary firm must supply at least 20 Trade Adjustment Assistance (TAA). percent of its production or sales to a The denial notice was signed on March manufacturer whose workers were
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DEPARTMENT OF LABOR The intent of the Department’s Adjustment Assistance, Employment certification is to include all workers of and Training Administration, has Employment and Training International Comfort Products Corp. instituted investigations pursuant to Administration (USA), a wholly owned subsidiary of section 221(a) of the Act. [TA–W–50,409 and TA–W–50,409A] United Technologies Corp., and an The purpose of each of the affiliate of Carrier Corp. adversely investigations is to determine whether International Comfort Products Corp. affected by increased imports. the workers are eligible to apply for (USA), a Wholly Owned Subsidiary of The amended notice applicable to adjustment assistance under Title II, United Technologies Corp., and an TA–W–50,409 is hereby issued as Chapter 2, of the Act. The investigations Affiliate of Carrier Corp., Lewisburg, follows: will further relate, as appropriate, to the TN, ICP Warehouse, Lewisburg, TN; All workers of International Comfort determination of the date on which total Amended Certification Regarding Products Corp. (USA), a wholly owned or partial separations began or Eligibility To Apply for Worker subsidiary of United Technologies Corp. and threatened to begin and the subdivision Adjustment Assistance an affiliate of Carrier Corp., Lewisburg, of the firm involved. Tennessee (TA–W–50,409), and ICP In accordance with section 223 of the Warehouse, Lewisburg, Tennessee (TA–W– The petitioners or any other persons Trade Act of 1974 (19 U.S.C. 2273) the 50,409A), who became totally or partially showing a substantial interest in the Department of Labor issued a separated from employment on or after subject matter of the investigations may Certification of Eligibility to Apply for December 5, 2001, through February 3, 2005, request a public hearing provided such Worker Adjustment Assistance on are eligible to apply for adjustment assistance request is filed in writing with the February 3, 2003, applicable to workers under section 223 of the Trade Act of 1974. Director, Division of Trade Adjustment of International Comfort Products Corp. Signed at Washington, DC, this 18th day of Assistance, at the address shown below, (USA), a wholly owned subsidiary of May, 2003. not later than July 14, 2003. United Technologies Corp. and an Linda G. Poole, Interested persons are invited to affiliate of Carrier Corp., Lewisburg, Certifying Officer, Division of Trade Tennessee. The notice was published in submit written comments regarding the Adjustment Assistance. subject matter of the investigations to the Federal Register on February 24, [FR Doc. 03–16898 Filed 7–2–03; 8:45 am] 2003 (68 FR 8620). the Director, Division of Trade At the request of the Boilermakers BILLING CODE 4510–30–P Adjustment Assistance, at the address Union, Local 52, the Department shown below, not later than July 14, 2003. reviewed the certification for workers of DEPARTMENT OF LABOR the subject firm. The workers are The petitions filed in this case are engaged in the production of heating, Employment and Training available for inspection at the Office of ventilation, and air-conditioning Administration the Director, Division of Trade equipment. Adjustment Assistance, Employment Information shows that worker Investigations Regarding Certifications and Training Administration, U.S. separations occurred at the ICP of Eligibility To Apply for Worker Department of Labor, Room C–5311, 200 Warehouse, Lewisburg, Tennessee Adjustment Assistance Constitution Avenue, NW., Washington, location of the subject firm. The ICP DC 20210. Warehouse provides warehousing and Petitions have been filed with the shipping services for the subject firm. Secretary of Labor under section 221(a) Signed at Washington, DC, this 18th day of Accordingly, the Department is of the Trade Act of 1974 (‘‘the Act’’) and June 2003. amending the certification to include are identified in the Appendix to this Timothy Sullivan, workers of the ICP Warehouse, notice. Upon receipt of these petitions, Director, Division of Trade Adjustment Lewisburg, Tennessee. the Director of the Division of Trade Assistance.
APPENDIX [Petitions instituted between 06/10/2003 and 06/13/2003.]
Subject firm Date of Date of TA–W (petitioners) Location institution petition
51,976 ...... John Schandelmeier (Comp) ...... Paxson, AK ...... 06/10/2003 05/31/2003 51,977 ...... Fishing Vessel (F/V) Vickie Rae (Comp) ...... Sand Point, AK ...... 06/10/2003 06/05/2003 51,978 ...... Atlas Cold Storage Midwest Ltd. (Comp) ...... Green Bay, WI ...... 06/10/2003 06/04/2003 51,979 ...... Oh, Baby Enterprise, Ltd. (Wkrs) ...... New York, NY ...... 06/10/2003 06/03/2003 51,980 ...... Decibel Products (Wkrs) ...... Dallas, TX ...... 06/10/2003 03/28/2003 51,981 ...... Emerson Climate Technologies Flow (IAM) .... St. Louis, MO ...... 06/10/2003 06/05/2003 51,982 ...... General Mills (Comp) ...... Hillsdale, MI ...... 06/10/2003 06/04/2003 51,983 ...... Smurfit-Stone Container (Wkrs) ...... El Paso, TX ...... 06/10/2003 05/22/2003 51,984 ...... Martinrea Industries, Inc. (Comp) ...... Machester, MI ...... 06/10/2003 06/09/2003 51,985 ...... U.S. Castings (Comp) ...... Anniston, AL ...... 06/10/2003 06/02/2003 51,986 ...... Amyx Industries (Comp) ...... West Plains, MO ...... 06/10/2003 06/02/2003 51,987 ...... EGS Electrical Group (Wkrs) ...... Columbus, NE ...... 06/10/2003 06/06/2003 51,988 ...... Vishay-North American Capacitor Co. (Comp) Greencastle, IN ...... 06/10/2003 06/06/2003 51,989 ...... Coates Screen Inc. (UNITE) ...... E. Rutherford, NJ ...... 06/10/2003 05/30/2003 51,990 ...... Waterfront Sportswear, Inc. (Comp) ...... Fall River, MA ...... 06/10/2003 06/05/2003 51,991 ...... Gateway Hosiery (Comp) ...... N. Wilkesboro, NC ...... 06/10/2003 06/04/2003 51,992 ...... American Standard, Inc. (Comp) ...... Paintsville, KY ...... 06/10/2003 06/06/2003 51,993 ...... Cummins (Comp) ...... Fridley, MN ...... 06/10/2003 06/04/2003 51,994 ...... Jakel, Inc. (Wkrs) ...... Clinton, KY ...... 06/10/2003 06/03/2003
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APPENDIX—Continued [Petitions instituted between 06/10/2003 and 06/13/2003.]
Subject firm Date of Date of TA–W (petitioners) Location institution petition
51,995 ...... Occidental Chemical Corporation (Wkrs) ...... Castle Hayne, NC ...... 06/10/2003 05/31/2003 51,996 ...... Borden Chemical, Inc. (Comp) ...... Mt. Jewett, PA ...... 06/10/2003 06/06/2003 51,997 ...... A. Schulman, Inc. (PACE) ...... Orange, TX ...... 06/10/2003 06/02/2003 51,998 ...... Ameripol Synpol Corp. (PACE) ...... Port Neches, TX ...... 06/10/2003 06/02/2003 51,999 ...... Thunderbird Mining Co. (Comp) ...... Eveleth, MN ...... 06/10/2003 06/05/2003 52,000 ...... Fishing Vessel (F/V) Night Hawk (Comp) ...... Warrenton, NH ...... 06/11/2003 06/07/2003 52,001 ...... Risdon AMS ...... Laconia, NH ...... 06/11/2003 06/10/2003 52,002 ...... Allister Fabricating, Iinc. (Comp) ...... Lannon, WI ...... 06/11/2003 06/10/2003 52,003 ...... Menlo Worldwide Logistics (Comp) ...... Edisoin, NJ ...... 06/11/2003 05/30/2003 52,004 ...... Golden Casting (GMP) ...... Columbus, IN ...... 06/11/2003 05/22/2003 52,005 ...... Reliability, Inc. (VT) ...... Benson, VT ...... 06/11/2003 06/04/2003 52,006 ...... America Online (Wkrs) ...... Oklahoma City, OK ...... 06/11/2003 06/03/2003 52,007 ...... American London Norwood (Comp) ...... Norwood, MA ...... 06/11/2003 05/29/2003 52,008 ...... Epic (Wkrs) ...... Norwalk, OH ...... 06/11/2003 05/16/2003 52,009 ...... AGFA Corporation (Wkrs) ...... Newark, DE ...... 06/11/2003 05/28/2003 52,010 ...... Imperial of Morristown, Inc. (Comp) ...... Morristown, TN ...... 06/11/2003 06/05/2003 52,011 ...... F/V Nanesse (Comp) ...... Skagway, AK ...... 06/12/2003 06/11/2003 52,012 ...... Mark Lemon (Comp) ...... Kasilof, AK ...... 06/12/2003 06/06/2003 52,013 ...... Shipley Company LLC (Comp) ...... Spartanburg, SC ...... 06/12/2003 05/29/2003 52,014 ...... Robert Bosch Corp. (UAW) ...... Kentwood, MI ...... 06/12/2003 06/10/2003 52,015 ...... Baxter Healthcare (AR) ...... Mt. Home, AR ...... 06/12/2003 06/10/2003 52,016 ...... Trio Dyeing and Finishing (UNITE) ...... Paterson, NJ ...... 06/12/2003 05/20/2003 52,017 ...... Bush Industries (Wrks) ...... St. Paul, VA ...... 06/12/2003 06/01/2003 52,018 ...... ICT (Wkrs) ...... Lewiston, ME ...... 06/12/2003 06/02/2003 52,019 ...... Actronix, Incl. (AR) ...... Flippin, AR ...... 06/12/2003 06/10/2003 52,020 ...... Dura Automotive Systems, Inc. (Comp) ...... Fulton, KY ...... 06/12/2003 06/04/2003 52,021 ...... Eagle Ottawa LLC (Comp) ...... Rochester Hills, MI ...... 06/12/2003 05/16/2003 52,022 ...... Nortel Networks (Wkrs) ...... RTP, NC ...... 06/12/2003 05/06/2003 52,023 ...... Trevorton Manufacturing, Inc. (Comp) ...... Trevorton, PA ...... 06/12/2003 06/02/2003 52,024 ...... Stitches, Inc. (Comp) ...... Sunbury, PA ...... 06/12/2003 06/02/2003 52,025 ...... Dynamco (Comp) ...... McKinney, TX ...... 06/12/2003 06/11/2003 52,026 ...... Neff Motivation, Inc. (Comp) ...... Greenvile, OH ...... 06/13/2003 06/12/2003 52,027 ...... ADC Telecommunications, Inc. (Wkrs) ...... New Hope, MN ...... 06/13/2003 05/13/2003 52,028 ...... Eaton Corporation (Comp) ...... Brooksville, FL ...... 06/13/2003 06/13/2003 52,029 ...... Medway Plastics Corporation (CA) ...... Long Beach, CA ...... 06/13/2003 05/14/2003 52,030 ...... Plassein International (Comp) ...... Martin, MI ...... 06/13/2003 06/06/2003 52,031 ...... Swing-N-Slide (Comp) ...... Janesville, WI ...... 06/13/2003 06/13/2003 52,032 ...... Precision Interconnect (Comp) ...... Broomfield, CO ...... 06/13/2003 06/12/2003 52,033 ...... Images 2, Inc. (Comp) ...... Lexington, AL ...... 06/13/2003 05/23/2003 52,034 ...... Lion Bioscience (Wkrs) ...... Cleveland, OH ...... 06/13/2003 06/11/2003 52,035 ...... Ingram Micro, Inc. (NY) ...... Williamsville, NY ...... 06/13/2003 05/19/2003 52,036 ...... WiCat Systems, Inc. (UT) ...... Lindon, UT ...... 06/13/2003 06/11/2003
[FR Doc. 03–16872 Filed 7–2–03; 8:45 am] purpose, and the investigation has been DEPARTMENT OF LABOR BILLING CODE 4510–30–M terminated. Employment and Training Signed at Washington, DC this 13th day of Administration June, 2003. DEPARTMENT OF LABOR Linda G. Poole, [TA–W–39,324] Employment and Training Certifying Officer, Division of Trade Administration Adjustment Assistance. Maverick Tube Corp., Beaver Falls, PA; [FR Doc. 03–16916 Filed 7–2–03; 8:45 am] Notice of Revised Determination on [TA–W–51,745] BILLING CODE 4510–30–P Remand Marion Plywood Corp., Marion, WI; The United States Court of Notice of Termination of Investigation International Trade (USCIT), on May 6, 2003, granted the Secretary of Labor’s Pursuant to section 221 of the Trade motion for voluntary remand for further Act of 1974, as amended, an investigation of the negative investigation was initiated on May 14, determination in Former Employees of 2003 in response to a petition filed by Maverick Tube Corp. v. U.S. Secretary of a company official on behalf of workers Labor (Court No. 02–00185). at Marion Plywood, Marion, Wisconsin. The Department’s initial denial of the The petitioner has requested that the petition for employees of Maverick Tube petition be withdrawn. Consequently, Corporation, Beaver Falls, Pennsylvania further investigation would serve no was issued on December 31, 2001 and
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published in the Federal Register on filed by a company official on behalf of 29, 2003, applicable to workers of January 11, 2002 (67 FR 1510). The workers at NABCO, Inc., A Delco Remy R.A.G.S., Inc., Lexington, North investigation revealed that criterion (3) International Company, Marion, Carolina and Richfield, North Carolina. was not met. The Department conducted Michigan (TA–W–51,783) and NABCO, The notice was published in the Federal a survey of the major declining Inc., A Delco Remy International Register on May 9, 2003 (68 FR 25061). customers of Maverick Tube Corp., Company, Kaleva, Michigan (TA–W– At the request of the State agency, the regarding their purchases of cold drawn 51,783A). Department reviewed the certification tubular products for 1999, 2000 and The petitioner has requested that the for workers of the subject firm. January through March 2001. The petition be withdrawn. Consequently, Information provided by the State results of the survey indicated that the investigation has been terminated. shows that workers of R.A.G.S., Inc. customer import purchases of cold Signed at Washington, DC, this 19th day of were leased workers of Selective HR drawn tubular product declined during June, 2003. Solutions V, Inc. to produce ladies’ the relevant period. Elliott S. Kushner, jackets at the Lexington, North Carolina On remand, the Department location of the subject firm. Leased Certifying Officer, Division of Trade conducted a survey of additional Adjustment Assistance. workers of Selective HR Solutions V, customers not supplied during the Inc. were also employed at the subject [FR Doc. 03–16913 Filed 7–2–03; 8:45 am] initial investigation. The survey firm’s Richfield, North Carolina location revealed that customers increased their BILLING CODE 4510–30–P of the subject firm to cut the material reliance on imported cold drawn that was used to produce jackets at the tubular products during the relevant DEPARTMENT OF LABOR Lexington, North Carolina location. period. Information also shows that workers separated from employment at the Conclusion Employment and Training Administration subject firm had their wages reported After careful review of the facts under a separate unemployment obtained in the investigation, I conclude [TA–W–52,078] insurance (UI) tax account for Selective that increases of imports of articles like HR Solutions V, Inc. or directly competitive with cold drawn Plastene Supply Co., Plant 1, Division Accordingly, the Department is tubular products produced at Maverick of Siegel Robert, Inc., Portageville, MO; amending the certification to properly Tube Corporation, Beaver Falls, Notice of Termination of Investigation reflect these matters. Pennsylvania contributed importantly to Pursuant to section 221 of the Trade The intent of the Department’s the decline in sales or production and Act of 1974, as amended, an certification is to include all workers of to the total or partial separation of investigation was initiated on June 18, R.A.G.S., Inc. who were adversely workers of that firm. 2003 in response to a worker petition affected by increased imports. In accordance with the provisions of filed on behalf of workers at Plastene The amended notice applicable to the Trade Act, I make the following Supply Co., Plant 1, Division of Siegel TA–W–51,487 and TA–W–51,487A are certification: Robert, Inc., Portageville, Missouri. hereby issued as follows: All workers of Maverick Tube Corporation, The investigation revealed that All workers of R.A.G.S., Inc., Selective HR Beaver Falls, Pennsylvania who became petition (TA–W–52,078) is a duplicate Solutions V, Inc., Lexington, North Carolina totally or partially separated from petition of (TA–W–51,652) instituted on (TA–W–51,487) and R.A.G.S., Inc., Selective employment on or after May 11, 2000, April 30, 2003. Consequently, the HR Solutions V, Inc., Richfield, North through two years from the issuance of this Carolina (TA–W–51,487A), who became revised determination, are eligible to apply investigation has been terminated. totally or partially separated from for adjustment assistance under Section 223 Signed at Washington, DC, this 23rd day of employment on or after April 11, 2002, of the Trade Act of 1974. June, 2003. through April 29, 2005, are eligible to apply for adjustment assistance under section 223 Signed at Washington, DC this 19th day of Elliott S. Kushner, of the Trade Act of 1974. June 2003. Certifying Officer, Division of Trade Elliott S. Kushner, Adjustment Assistance. Signed at Washington, DC this 24th day of Certifying Officer, Division of Trade [FR Doc. 03–16910 Filed 7–2–03; 8:45 am] June 2003. Adjustment Assistance. BILLING CODE 4510–30–M Elliott S. Kushner, [FR Doc. 03–16903 Filed 7–2–03; 8:45 am] Certifying Officer, Division of Trade BILLING CODE 4510–30–P Adjustment Assistance. DEPARTMENT OF LABOR [FR Doc. 03–16899 Filed 7–2–03; 8:45 am] BILLING CODE 4510–30–P DEPARTMENT OF LABOR Employment and Training Administration Employment and Training [TA–W–51,487 and TA–W–51,487A] DEPARTMENT OF LABOR Administration Employment and Training [TA–W–51,783 and TA–W–51,783A] R.A.G.S., Inc., Selective HR Solutions V, Inc., Lexington, NC and R.A.G.S., Administration Nabco, Inc., A Delco Remy Inc., Selective HR Solutions V, Inc., [TA–W–51,429, et al.] International Company, Marion, MI; Richfield, NC; Amended Certification Nabco, Inc., A Delco Remy Regarding Eligibility To Apply for Roseburg Forest Products International Company, Kaleva, MI; Worker Adjustment Assistance Headquartered in Dillard, OR; Notice of Termination of Investigation Amended Certification Regarding In accordance with section 223 of the Eligibility To Apply for Worker Pursuant to section 221 of the Trade Trade Act of 1974 (19 U.S.C. 2273) the Adjustment Assistance Act of 1974, as amended, an Department of Labor issued a investigation was initiated on May 16, Certification of Eligibility to Apply for In accordance with Section 223 of the 2003 in response to a worker petition Worker Adjustment Assistance on April Trade Act of 1974 (19 U.S.C. 2273) the
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Department Labor issued a Certification DEPARTMENT OF LABOR produce an article and who are of Eligibility to Apply for Worker currently under certification for TAA. Employment and Training Adjustment Assistance on June 2, 2003, Conclusion applicable to workers of Roseburg Forest Administration Products, Headquartered in Dillard, After review of the application and Oregon. The notice will be published [TA–W–51,340] investigative findings, I conclude that soon in the Federal Register. there has been no error or Sprint United Management Co., misinterpretation of the law or of the At the request of the State agency, the Rosemont Center, Rosemont, IL; facts which would justify Department reviewed the certification Notice of Negative Determination reconsideration of the Department of for workers of the subject firm. The Regarding Application for Labor’s prior decision. Accordingly, the workers are engaged in the production Reconsideration application is denied. of plywood. By application of May 20, 2003, a Signed at Washington, DC, this 16th day of New findings show that worker petitioner requested administrative June, 2003. separations occurred at the Machine reconsideration of the Department’s Elliott S. Kushner, Shop and the Wood Department of negative determination regarding Certifying Officer, Division of Trade Roseburg Forest Products, Dillard, eligibility for workers and former Adjustment Assistance. Oregon. Workers at the Machine Shop workers of the subject firm to apply for [FR Doc. 03–16904 Filed 7–2–03; 8:45 am] build and tool equipment for the saw Trade Adjustment Assistance (TAA). BILLING CODE 4510–30–P mills and plywood Departments of the The denial notice applicable to workers subject firm. Workers at the Wood of Sprint United Management Company, Department provide logs to the many Rosemont Center, Rosemont, Illinois DEPARTMENT OF LABOR was signed on April 9, 2003, and plywood Departments of the subject Employment and Training published in the Federal Register on firm. Administration April 24, 2003 (68 FR 20177). Accordingly, the Department is Pursuant to 29 CFR 90.18(c) [TA–W–51,564] amending the certification to include reconsideration may be granted under workers at the Machine Shop and the the following circumstances: Stoneridge, Inc., Alphabet Division, Wood Department at Roseburg Forest (1) If it appears on the basis of facts Mebane, NC, Notice of Termination of Products and to correct the city location not previously considered that the Investigation of the Plywood Division, Plant 3 to read determination complained of was Pursuant to section 221 of the Trade Roseburg, Oregon. erroneous; Act of 1974, as amended, an The intent of the Department’s (2) If it appears that the determination investigation was initiated on April 23, certification is to include all workers of complained of was based on a mistake 2003 in response to a union petition Roseburg Forest Products who were in the determination of facts not filed by a company official on behalf of adversely affected by increased imports. previously considered; or workers at Stoneridge, Inc., Alphabet (3) If in the opinion of the Certifying The amended notice applicable to Division, Mebane, North Carolina. Officer, a misinterpretation of facts or of The petitioner has requested that the TA–W–51,429 is hereby issued as the law justified reconsideration of the follows: petition be withdrawn. Consequently, decision. further investigation would serve no All workers of Roseburg Forest Products, The TAA petition was filed on behalf purpose, and the investigation has been Headquartered in Dillard, Oregon (TA–W– of workers at Sprint United terminated. 51,429), Plywood Division—Plants 1 & 2, Management Company, Rosemont Signed at Washington, DC this 13th day of Dillard, Oregon (TA–W–51,429A), Plywood Center, Rosemont, Illinois engaged in June, 2003. Division—Plant 3, Roseburg, Oregon (TA–W– selling long distance services. The Linda G. Poole, 51,429B), Plywood Division—Plant 4, Riddle, petition was denied because the Oregon (TA–W–51,429C), Plywood petitioning workers did not produce an Certifying Officer, Division of Trade Adjustment Assistance. Division—Plant 6, Coquille, Oregon (TA–W– article within the meaning of section 51,429D), Plywood Division—Plant 7, Weed, 222(3) of the Act. [FR Doc. 03–16915 Filed 7–2–03; 8:45 am] California (TA–W–51,429E), Machine Shop, In the request for reconsideration, the BILLING CODE 4510–30–P Dillard, Oregon (TA–W–51,429F), and Wood petitioners state that the Department Department, Dillard, Oregon (TA–W– erred in describing worker activities as DEPARTMENT OF LABOR 51,429G), who became totally or partially ‘‘selling long distance services’’. As separated from employment on or after April clarification, they stated that they Employment and Training 2, 2002, through June 2, 2005, are eligible to worked for ‘‘Sprint Long Distance Administration apply for adjustment assistance under Collections Dept.’’ Section 223 of the Trade Act of 1974. In order to meet eligibility [TA–W–51,876] Signed at Washington DC, this 20th day of requirements, the petitioning worker Straits Steel and Wire Co., Ludington, June 2003. group must be engaged in production; MI; Notice of Termination of Richard Church, collection services do not constitute Investigation Certifying Officer, Division of Trade production within the meaning of Adjustment Assistance. Section 222(3) of the Trade Act. Pursuant to section 221 of the Trade Only in very limited instances are Act of 1974, as amended, and [FR Doc. 03–16906 Filed 7–2–03; 8:45 am] service workers certified for TAA, investigation was initiated on May 28, BILLING CODE 4510–30–P namely the worker separations must be 2003 in response to a worker petition caused by a reduced demand for their filed by a company official on behalf of services from a parent or controlling workers at Straits Steel and Wire firm or subdivision whose workers Company, Ludington, Michigan.
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The petitioner has requested that the Signed at Washington, DC this 13th day of Signed at Washington, DC this 24th day of petition be withdrawn. Consequently, June, 2003. June 2003. the investigation has been terminated. Linda G. Poole, Richard Church, Certifying Officer, Division of Trade Signed at Washington, DC, this 23rd day of Certifying Officer, Division of Trade Adjustment Assistance. June, 2003. Adjustment Assistance. [FR Doc. 03–16914 Filed 7–2–03; 8:45 am] [FR Doc. 03–16901 Filed 7–2–03; 8:45 am] Elliott S. Kushner, BILLING CODE 4510–30–M BILLING CODE 4510–30–P Certifying Officer, Division of Trade Adjustment Assistance. [FR Doc. 03–16911 Filed 7–2–03; 8:45 am] DEPARTMENT OF LABOR DEPARTMENT OF LABOR BILLING CODE 4510–30–M Employment and Training Employment and Training Administration Administration DEPARTMENT OF LABOR [NAFTA–05755] [TA–W–50,834 and TA–W–50,834A] Employment and Training Delphi Automotive Systems Corp., Administration TSI Graphics, Inc., Effingham, IL, and Delphi Delco Electronics Division, Including an Employee of TSI Body and Security Team, Oak Creek, [TA–W–52,127] Graphics, Inc., Located in New Port WI; Notice of Revised Determination Richey, FL; Amended Certification on Remand Swag-Nit, Inc, Mt. Holly, NC; Notice of Regarding Eligibility To Apply for Termination of Investigation The United States Court of Worker Adjustment Assistance International Trade (USCIT), on March 26, 2003, granted the Secretary of Pursuant to section 221 of the Trade In accordance with section 223 of the Labor’s motion for voluntary remand for Act of 1974, as amended, an Trade Act of 1974 (19 U.S.C. 2273) the further investigation of the negative investigation was initiated on June 24, Department of Labor issued a determination in Former Employees of 2003, in response to a worker petition Certification of Eligibility to Apply for Delphi Automotive Systems Corp. v. filed by a company official on behalf of Worker Adjustment Assistance on April U.S. Secretary of Labor (Court No. 02– workers at Swag-Nit, Inc., Mt. Holly, 8, 2003, applicable to workers of TSI North Carolina. 00565). Graphics, Inc., Effingham, Illinois. The The Department’s initial denial of the The petitioner has requested that the notice was published in the Federal petition for employees of Delphi petition be withdrawn. Consequently, Register on April 24, 2003 (68 FR Automotive Systems Corporation, the investigation has been terminated. 20177). Delphi Delco Electronics Division, Body Signed at Washington, DC, this 24th day of At the request of the State agency, the and Security Team, Oak Creek, June 2003. Department reviewed the certification Wisconsin (NAFTA–05755) was issued Richard Church, for workers of the subject firm. New on April 16, 2002 and published in the information shows that worker Federal Register on May 2, 2002 (67 FR Certifying Officer, Division of Trade Adjustment Assistance. separations occurred involving an 22115). The denial was based on the fact employee of the Effingham, Illinois that the workers’ firm did not produce [FR Doc. 03–16909 Filed 7–2–03; 8:45 am] facility of TSI Graphics, Inc., located in an article as required for certification BILLING CODE 4510–30–P Port Richey, Florida. This employee was under section 250(a), Subchapter D, engaged in the production of textbook Chapter 2, Title II, of the Trade Act of color work/graphics as disk-to-plate 1974. DEPARTMENT OF LABOR files. On administrative reconsideration, the Department issued a ‘‘Notice of Employment and Training Based on these findings, the Negative Determination Regarding Administration Department is amending this certification to include an employee of Application for Reconsideration’’ on June 18, 2002 for the employees of [TA–W–51,828] the Effingham, Illinois facility of TSI Graphics, Inc., located in New Port Delphi Automotive Systems Richey, Florida. Corporation, Delphi Delco Electronics Texas Instruments, Inc., Leadframe, Division, Body and Security Team, Oak Sensors and Controls Divisions, The intent of the Department’s Creek, Wisconsin. The notice was Attleboro, MA; Notice of Termination of certification is to include all workers of published in the Federal Register on Investigation TSI Graphics, Inc. who were adversely July 22, 2002 (67 FR 47865 and 47866). affected by increased imports. The Department affirmed that workers Pursuant to section 221 of the Trade The amended notice applicable to were not engaged in the production of Act of 1974, as amended, an TA–W–50,834 is hereby issued as a product at the subject facility. The investigation was initiated on May 20, follows: Department found that any shifts in 2003 in response to a petition filed a plant activities were related to company official on behalf of workers at All workers of TSI Graphics, Inc., engineering, rather than production. Texas Instruments, Leadframe Division, Effingham Illinois (TA–W–50,834), including an employee of TSI Graphics, Inc., On remand, the Department contacted and Sensors and Controls Division, the company for additional information Attleboro, Massachusetts. Effingham, Illinois, located in New Port Richey, Florida (TA–W–50,834A), who concerning plant activities and potential The petitioner has requested that the became totally or partially separated from shifts in these activities to Mexico. petition be withdrawn. Consequently, employment on or after February 5, 2002, Based on additional information further investigation would serve no through April 8, 2005, are eligible to apply obtained from the company, it has purpose, and the investigation has been for adjustment assistance under section 223 become apparent that a portion of the terminated. of the Trade Act of 1974. functions performed at the subject firm
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constitute a fundamental part of the DEPARTMENT OF LABOR e.g., permitting electronic submissions production of an article. It has also been of responses. determined that this production and a Occupational Safety and Health ADDRESSES: Comments are to be meaningful portion of plant support Administration submitted to the Docket Office, Docket activities were shifted to Mexico, thus No. ICR 1218–1209 2003, U.S. [Docket No. ICR 1218–0209 2003] leading to plant employment declines Department of Labor, Room N–2625, during the relevant period. Proposed Information Collection 200 Constitution Ave., NW., Washington, DC 20210, telephone (202) This certification is limited to the Request Submitted for Public 693–2350. Written comments limited to workers of the company listed on the Comment and Recommendations; OSHA Data Initiative (1218–0209) 10 pages or fewer may be transmitted by first page of the petition as ‘‘the facsimile to (202) 693–1648. company division or subdivision of the ACTION: Notice. FOR FURTHER INFORMATION CONTACT: subject (affected) workers’’: Delphi Dave Schmidt, Office of Statistical Automotive Systems Corporation, SUMMARY: The Department of Labor, as Analysis, Occupational Safety and Delphi Delco Electronics Division, Body part of its continuing effort to reduce Health Administration, U.S. Department and Security Team, Oak Creek, paperwork and respondent burden, of Labor, Room N3644, 200 Constitution Wisconsin. This petition does not cover conducts a pre-clearance consultation Avenue, NW., Washington, DC 20210, the workers of Manpower Professional, program to provide the general public telephone (202) 693–1886. Copies of the an unaffiliated firm of the subject firm. and Federal agencies with an referenced information collection On page two of their petition the opportunity to comment on proposed request are available for inspection and petitioners identified Manpower and/or continuing collections of copying in the Docket Office and will be Professional as a ‘‘primary firm affected information in accordance with the mailed to persons who request copies by by NAFTA.’’ However, Manpower Paperwork Reduction Act of 1995 telephoning Dave Schmidt at (202) 693– Professional supplied personnel to (PRA95) (44 U.S.C. 3506(c)(2)(A). This 1886 or Todd Owen at (202) 693–3222. program helps to ensure that requested For electronic copies of the OSHA Data Delphi’s Oak Creek facility and data can be provided in the desired Initiative information collection request, therefore was not a ‘‘primary firm.’’ format, reporting burden (time and contact OSHA’s Web Page on the Manpower Professional did not supply financial resources) is minimized, Internet at http://www.osha-slc.gov/ components, unfinished, or collection instruments are clearly OCIS/Info coll.html. semifinished goods to Delphi’s Oak understood, and the impact of collection SUPPLEMENTARY INFORMATION: Creek facility, nor did they assemble or requirements on respondents can be finish products made by Delphi’s Oak properly assessed. Currently, the I. Background Creek facility. Occupational Safety and Health To meet many of OSHA’s program needs, OSHA is proposing to continue Conclusion Administration (OSHA) is soliciting comments concerning the proposed its data initiative to collect occupational After careful review of the additional extension of the information collection injury and illness data and information facts obtained on remand, I conclude request for the OSHA Data Initiative. A on the number of workers employed and that there was a shift in production from copy of the proposed information the number of hours worked from the workers’ firm to Mexico of articles collection request (ICR) can be obtained establishments in portions of the private that are like or directly competitive with by contacting the office listed below in sector and from some state and local those produced by the subject firm. In the addresses section of this notice. government agencies. OSHA will collect calendar year 2002 data from up to accordance with the provisions of the DATES: Written comments must be 109,000 employers already required to Trade Act, I make the following submitted to the office listed in the create and maintain records pursuant to certification: addressee section below on or before September 2, 2003. The Department of 29 CFR part 1904. These data will allow All workers of Delphi Automotive Systems Labor is particularly interested in OSHA to calculate occupational injury Corporation, Delphi Delco Electronics comments that: and illness rates and to focus its efforts Division, Body and Security Team, Oak • Evaluate whether the proposed on individual workplaces with ongoing Creek, Wisconsin who became totally or collection of information is necessary serious safety and health problems. partially separated from employment on or for the proper performance of the Successful implementation of the data after January 3, 2001, through two years from functions of the agency, including collection initiative is critical to OSHA’s the issuance of this revised determination, whether the information will have outreach and enforcement efforts and are eligible to apply for NAFTA–TAA under the data requirements tied to the section 250 of the Trade Act of 1974. practical utility; • Evaluate the accuracy of the Government Performance and Results Signed at Washington, DC this 17th day of agency’s estimate of the burden of the Act (GPRA). June 2003. proposed collection of information, II. Current Actions Elliott S. Kushner, including the validity of the This notice requests public comment Certifying Officer, Division of Trade methodology and assumptions used; • on an extension of the current OMB Adjustment Assistance. Enhance the quality, utility, and approval of the paperwork requirements [FR Doc. 03–16897 Filed 7–2–03; 8:45 am] clarity of the information to be for the OSHA Data Initiative system. BILLING CODE 4510–30–P collected; and Type of Review: Extension of • Minimize the burden of the currently approved collection. collection of information on those who Agency: Occupational Safety and are to respond, including through the Health Administration. use of appropriate automated, Title: OSHA Data Initiative. electronic, mechanical, or other OMB Number: 1218–0209. technological collection techniques or Agency Number: ICR 1218–0209– other forms of information technology, 2003.
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Affected Public: Business or other for- Dated: June 27, 2003. approximately 20 miles east of profit, Farms, and State, Local or Tribal Kathy Plowitz-Worden, Rochester, New York. Possible Government. Panel Coordinator, Panel Operations, alternatives to the proposed action Cite/Reference/Form/etc; OSHA Form National Endowment for the Arts. (license renewal) include no action and 196A and OSHA Form 196B. [FR Doc. 03–16829 Filed 7–2–03; 8:45 am] reasonable alternative energy sources. BILLING CODE 7537–01–P The draft supplement to the GEIS is Total Respondents: 109,000. available for public inspection in the Frequency: Annually. NRC’s Public Document Room (PDR) located at One White Flint North, 11555 Average Time per Response: 10 NATIONAL SCIENCE FOUNDATION Rockville Pike (first floor), Rockville, minutes. Notice of Permits Issued Under the Maryland, or, electronically, from the Estimated Total Burden Hours: 17,440 Antarctic Conservation Act of 1978 Publicly Available Records (PARS) hours. component of NRC’s Agencywide Comments submitted in response to AGENCY: National Science Foundation. Documents Access and Management this comment request will be ACTION: Notice of permits issued under System (ADAMS). ADAMS is accessible summarized and/or included in the the Antarctic Conservation of 1978, from the NRC Web site at http:// request for Office of Management and Public Law 95–541. www.nrc.gov/reading-rm.html (the Budget approval of the information Public Electronic Reading Room). SUMMARY: collection request; they will also The National Science Persons who do not have access to become a matter of public record. Foundation (NSF) is required to publish ADAMS or who encounter problems in notice of permits issued under the accessing the documents located in Dated: June 25, 2003. Antarctic Conservation Act of 1978. ADAMS, should contact the NRC’s PDR John L. Henshaw, This is the required notice. reference staff at 1–800–397–4209 or Assistant Secretary. FOR FURTHER INFORMATION CONTACT: 301–415–4737, or by e-mail to [FR Doc. 03–16849 Filed 7–2–03; 8:45 am] Nadene G. Kennedy, Permit Office, [email protected]. In addition, the Ontario Public Library, located at 1850 Ridge BILLING CODE 4510–26–M Office of Polar Programs, Rm. 755, National Science Foundation, 4201 Road, Ontario, New York, and the Wilson Boulevard, Arlington, VA 22230. Rochester Public Library, located at 115 South Avenue, Rochester, New York, SUPPLEMENTARY INFORMATION: On May have agreed to make the draft NATIONAL FOUNDATION ON THE 27, 2003, the National Science supplement to the GEIS available for ARTS AND THE HUMANITIES Foundation published a notice in the public inspection. Federal Register of permit applications Any interested party may submit National Endowment for the Arts; received. Permits were issued on June comments on the draft supplement to Combined Arts Advisory Panel 27, 2003 to: the GEIS for consideration by the NRC Lawrence J. Conrad staff. To be certain of consideration, Pursuant to section 10(a)(2) of the Permit No. 2004–002 comments on the draft supplement to Federal Advisory Committee Act (Public Mark Buckley the GEIS and the proposed action must Law 92–463), as amended, notice is Permit No. 2004–003 be received by September 16, 2003. hereby given that a meeting of the Nadene G. Kennedy, Comments received after the due date Combined Arts Advisory Panel, Media will be considered if it is practical to do Permit Officer. Arts section (Services to Arts so, but the NRC staff is able to assure Organizations and Artists category), will [FR Doc. 03–16860 Filed 7–2–03; 8:45 am] consideration only for comments be held by teleconference from 2 p.m. to BILLING CODE 7555–01–M received on or before this date. Written 3 p.m. on Wednesday, July 16, 2003 in comments on the draft supplement to Room 729 at the Nancy Hanks Center, the GEIS should be sent to: Chief, Rules 1100 Pennsylvania Avenue, NW., NUCLEAR REGULATORY and Directives Branch, Division of Washington, DC 20506. COMMISSION Administrative Services, Office of This meeting is for the purpose of [Docket No. 50–244] Administration, Mailstop T–6D 59, U.S. Panel review, discussion, evaluation, Nuclear Regulatory Commission, and recommendations on financial Rochester Gas and Electric Corp., R.E. Washington, DC 20555–0001. assistance under the National Ginna Nuclear Power Plant; Notice of Comments may be hand-delivered to Foundation on the Arts and the Availability of Draft Supplement 14 to the NRC at 11545 Rockville Pike, Humanities Act of 1965, as amended, Generic Environmental Impact Rockville, Maryland, between 7:45 a.m. including information given in Statement and Public Meeting for the and 4:15 p.m. on Federal workdays. confidence to the agency. In accordance License Renewal of R.E. Ginna Nuclear Electronic comments may be submitted with the determination of the Chairman Power Plant to the NRC by e-mail at of April 30, 2003, these sessions will be [email protected]. All comments Notice is hereby given that the U.S. closed to the public pursuant to received by the Commission, including Nuclear Regulatory Commission (the those made by Federal, State, and local subsection (c)(4), (6) and (9)(B) of Commission) has published a draft agencies, Native American Tribes, or section 552b of Title 5, United States plant-specific supplement to the other interested persons, will be made Code. Generic Environmental Impact available electronically at the Further information with reference to Statement (GEIS), NUREG–1437, Commission’s PDR in Rockville, this meeting can be obtained from Ms. regarding the renewal of operating Maryland, and from the PARS Kathy Plowitz-Worden, Panel license DPR–18 for an additional 20 component of ADAMS. Coordinator, National Endowment for years of operation at R.E. Ginna Nuclear The NRC staff will hold a public the Arts, Washington, DC 20506, or call Power Plant (Ginna). Ginna is located in meeting to present an overview of the 202/682–5691. Wayne County, New York, draft plant-specific supplement to the
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GEIS and to accept public comments on OFFICE OF PERSONNEL U.S. Office of Personnel Management. the document. The public meeting will MANAGEMENT Kay Coles James, be held on August 7, 2003, at the Director. Ontario Fireman’s Exempt Hall, 1840 Submission for OMB Review; [FR Doc. 03–16740 Filed 7–2–03; 8:45 am] Route 104, Ontario, New York. There Comment Request for Reclearance of BILLING CODE 6325–50–P will be two sessions to accommodate a Revised Information Collection: SF interested parties. The first session will 2803 and SF 3108 commence at 1:30 p.m. and will OFFICE OF PERSONNEL continue until 4:30 p.m. The second AGENCY: Office of Personnel MANAGEMENT session will commence at 7 p.m. and Management. Submission for OMB Review; will continue until 10 p.m. Both ACTION: Notice. meetings will be transcribed and will Comment Request for Reclearance of include (1) a presentation of the a Revised Information Collection: SF SUMMARY: In accordance with the 3106 and SF 3106A contents of the draft plant-specific Paperwork Reduction Act of 1995 supplement to the GEIS, and (2) the (Public Law 104–13, May 22, 1995), this AGENCY: Office of Personnel opportunity for interested government notice announces that the Office of Management. agencies, organizations, and individuals Personnel Management (OPM) has ACTION: Notice. to provide comments on the draft report. submitted to the Office of Management SUMMARY: In accordance with the Additionally, the NRC staff will host and Budget (OMB) a request for Paperwork Reduction Act of 1995 informal discussions one hour prior to reclearance of a revised information the start of each session at the same (Public Law 104–13, May 22, 1995), this collection. SF 2803, Application to notice announces that the Office of location. No comments on the draft Make Deposit or Redeposit (CSRS), and supplement to the GEIS will be accepted Personnel Management (OPM) has SF 3108, Application to Make Service submitted to the Office of Management during the informal discussions. To be Credit Payment for Civilian Service considered, comments must be provided and Budget (OMB) a request for (FERS), are applications to make reclearance of a revised information either at the transcribed public meeting payment used by persons who are or in writing, as discussed below. collection. SF 3106, Application for eligible to pay for Federal service which Refund of Retirement Deductions/ Persons may pre-register to attend or was not subject to retirement deductions present oral comments at the meeting by Federal Employees Retirement System and/or for Federal service which was (FERS), is used by former Federal contacting Mr. Robert G. Schaaf by subject to retirement deductions which employees under FERS, to apply for a telephone at 1–800–368–5642, were subsequently refunded to the refund of retirement deductions extension 1312, or by e-mail at applicant. withheld during Federal employment, [email protected] no later than July 30, 2003. In addition to the current Federal plus any interest provided by law. SF Members of the public may also register employees who will use these forms, we 3106A, Current/Former Spouse(s) to provide oral comments within 15 expect to receive approximately 75 Notification of Application for Refund minutes of the start of each session. filings of each form from former Federal of Retirement Deductions Under FERS, Individual, oral comments may be employees per year. This gives us a total is used by refund applicants to notify limited by the time available, depending of 150 filings. Each form takes their current/former spouse(s) that they on the number of persons who register. approximately 30 minutes to complete. are applying for a refund of retirement If special equipment or accommodations The annual burden is 75 hours. deductions, which is required by law. are needed to attend or present Approximately 17,000 of SF 3106 will For copies of this proposal, contact information at the public meeting, the be processed annually. The SF 3106 Mary Beth Smith-Toomey on (202) 606– need should be brought to Mr. Schaaf’s takes approximately 30 minutes to 8358, FAX (202) 418–3251 or via E-mail attention no later than July 30, 2003, to complete for a total of 8,500 hours to [email protected]. Please include a provide the NRC staff adequate notice to annually. Approximately 13,600 of SF mailing address with your request. determine whether the request can be 3106A will be processed annually. The accommodated. DATES: Comments on this proposal SF 3106A takes approximately 5 For further information contact: Mr. should be received within 30 calendar minutes to complete for a total of 1,133 Robert G. Schaaf, License Renewal and days from the date of this publication. hours. The total annual burden is 9,633 Environmental Impacts Program, hours. ADDRESSES: Send or deliver comments For copies of this proposal, contact Division of Regulatory Improvement to Ronald W. Melton, Chief, Operations Programs, U.S. Nuclear Regulatory Mary Beth Smith-Toomey on (202) 606– Support Group, Center for Retirement 8358, FAX (202) 418–3251 or via E-mail Commission, Washington, DC 20555– and Insurance Services, U.S. Office of 0001. Mr. Schaaf may be contacted at to [email protected]. Please include a Personnel Management, 1900 E Street, mailing address with your request. the aforementioned telephone number NW., Room 3349, Washington, DC or e-mail address. DATES: Comments on this proposal 20415–3540; and Allison Edyt, OPM should be received within 30 calendar Dated at Rockville, Maryland, this 24th day Desk Officer, Office of Information & days from the date of this publication. of June, 2003. Regulatory Affairs, Office of ADDRESSES: Send or deliver comments Management and Budget, New For the Nuclear Regulatory Commission. to Ronald W. Melton, Chief, Operations Executive Office Building, NW., Room Pao-Tsin Kuo, Support Group, Center for Retirement 10235, Washington, DC 20503. Program Director, License Renewal and and Insurance Services, U.S. Office of Environmental Impacts Program, Division of FOR INFORMATION REGARDING Personnel Management, 1900 E Street, Regulatory Improvement Programs, Office of ADMINISTRATIVE COORDINATION CONTACT: NW., Room 3349, Washington, DC Nuclear Reactor Regulation. Cyrus S. Benson, Team Leader, 20415–3540; and Allison Eydt, OPM [FR Doc. 03–16865 Filed 7–2–03; 8:45 am] Publications Team, Support Group, Desk Officer, Office of Information & BILLING CODE 7590–01–P (202) 606–0623. Regulatory Affairs, Office of
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Management and Budget, New the use of appropriate technological Schedule B. No Schedule B Executive Office Building, NW., Room collection techniques or other forms of appointments for April 2003. 10235, Washington, DC 20503. information technology. Schedule C. The following Schedule FOR INFORMATION REGARDING We estimate that we will receive C appointments were approved for April ADMINISTRATIVE COORDINATION CONTACT: 112,000 responses per year to the IVR 2003: Cyrus S. Benson, Team Leader, system and the on-line web site. Each Council on Environmental Quality Publications Team, RIS Support response takes approximately 10 Services, (202) 606–0623. minutes to complete. The annual Associate Director for Global burden is 18,666 hours. Environmental Affairs to the Chair, U.S. Office of Personnel Management. Council on Environmental Quality. Kay Coles James, For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606– Effective April 18, 2003. Director. 8358, FAX (202) 418–3251 or via E-mail Department of Agriculture [FR Doc. 03–16741 Filed 7–2–03; 8:45 am] to [email protected]. Please include a Special Assistant to the Administrator BILLING CODE 6325–50–P mailing address with your request. for Risk Management. Effective April 2, DATES: Comments on this proposal 2003. OFFICE OF PERSONNEL should be received within 60 calendar Confidential Assistant to the Assistant MANAGEMENT days from the date of this publication. Secretary for Congressional Relations. ADDRESSES: Send or deliver comments Effective April 4, 2003. Proposed Collection; Comment to William C. Jackson, Group Leader, Confidential Assistant to the Assistant Request for Review of a Revised Retirement Eligibility and Services Secretary for Congressional Relations. Information Collection: Federal Group, Retirement Services Program, Effective April 4, 2003. Employees Health Benefits (FEHB) U.S. Office of Personnel Management, Special Assistant to the Chief for Open Season Express Interactive 1900 E Street, NW., Room 2336, Natural Research Conservation Service. Voice Response (IVR) System and Washington, DC 20415–3560. Effective April 11, 2003. Open Season Online Special Assistant to the Administrator FOR INFORMATION REGARDING for the Farm Service Agency. Effective AGENCY: Office of Personnel ADMINISTRATIVE COORDINATION CONTACT: Management. April 25, 2003. Cyrus S. Benson, Team Leader, White House Liaison to the Secretary ACTION: Notice. Publications Team, RIS Support of Agriculture. Effective April 25, 2003. Services, (202) 606–0623. SUMMARY: In accordance with the U.S. Office of Personnel Management. Department of the Army (Department of Paperwork Reduction Act of 1995 Defense) (Public Law 104–13, May 22, 1995), this Kay Coles James, notice announces that the Office of Director. Personal and Confidential Assistant to Personnel Management (OPM) will [FR Doc. 03–16754 Filed 7–2–03; 8:45 am] the Assistant Secretary of the Army. Effective April 7, 2003. submit to the Office of Management and BILLING CODE 6325–50–P Budget (OMB) a request for review of a Department of Commerce revised information collection. The Confidential Assistant to the Deputy Federal Employees Health Benefits OFFICE OF PERSONNEL Assistant Secretary for Export (FEHB) Open Season Express Interactive MANAGEMENT Promotion Service. Effective April 1, Voice Response (IVR) System and the Excepted Service 2003. Open Season web site, Open Season Policy Advisor to the Director for Online, is used by retirees and AGENCY: Office of Personnel Legislative Affairs. Effective April 9, survivors; it collects information for Management. 2003. changing FEHB enrollments, collecting ACTION: Notice. Deputy Director to the Director for dependent and other insurance Executive Secretariat. Effective April 24, information for self and family SUMMARY: This gives notice of OPM 2003. enrollments, requesting plan brochures, decisions, granting authority to make Senior Advisor to the Assistant requesting a change of address, appointments under Schedules A, B, Secretary and Director General of the requesting cancellation or suspension of and C in the excepted service as U.S. and Foreign Commercial Service, FEHB benefits, asking to make payment required by 5 CFR 6.6 and 213.103. International Trade Administration. to the Office of Personnel Management FOR FURTHER INFORMATION CONTACT: Effective April 25, 2003. when the FEHB payment is greater than Deputy Director to the Director for the monthly annuity amount, or Deborah Grade, Acting Director, Washington Services Branch, Center for White House Liaison. Effective April 28, requesting FEHB plan accreditation and 2003. Customer Satisfaction Survey Talent Services, Division for Human information. Resources Products and Services, (202) Department of Defense 606–5027. Comments are particularly invited on: Staff Assistant to the Deputy Under Whether this collection of information SUPPLEMENTARY INFORMATION: Appearing Secretary of Defense (Special Plans and is necessary for the proper performance in the listing below are the individual Near East/South Asia). Effective April 7, of functions of the Office of Personnel authorities established under Schedules 2003. Management, and whether it will have A, B, and C between April 1, 2003 and Staff Specialist to the Deputy Under practical utility; whether our estimate of April 30, 2003. Future notices will be Secretary of Defense for Logistics and the public burden of this collection of published on the fourth Tuesday of each Materials. Effective April 11, 2003. information is accurate, and based on month, or as soon as possible thereafter. Special Assistant to the Principal valid assumptions and methodology; A consolidated listing of all authorities Deputy Under Secretary of Defense and ways in which we can minimize the as of June 30 is published each year. (Policy). Effective April 17, 2003. burden of the collection of information Schedule A. No Schedule A Defense Fellow to the Special on those who are to respond, through appointments for April 2003. Assistant to the Secretary of Defense for
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White House Liaison. Effective April 22, Director for Local Affairs to the Special Assistant to the Assistant 2003. Director for State and Local Affairs. Attorney General, Criminal Division. Effective April 7, 2003. Effective April 2, 2003. Department of Education Director for State Affairs to the Special Assistant to the Director for Confidential Assistant to the Assistant Director for State and Local Affairs. Community Oriented Policing Services. Secretary for Postsecondary Education. Effective April 10, 2003. Effective April 22, 2003. Effective April 4, 2003. Special Assistant to the Director for Counsel to the Associate Attorney Deputy Secretary’s Regional Citizenship and Immigration Services. General. Effective April 22, 2003. Representative to the Deputy Assistant Effective April 9, 2003. Staff Assistant to the Assistant Secretary for Regional Services. Press Assistant to the Assistant Attorney General for the Tax Division. Effective April 8, 2003. Secretary for Public Affairs. Effective Effective April 30, 2003. Deputy Assistant Secretary for April 11, 2003. Intergovernmental, Constituent Department of Labor Business Liaison to the Special Relations and Corporate Liaison to the Deputy Director to the Director for Assistant to the Secretary, Private Assistant Secretary for Faith-Based and Community Initiatives. Sector. Effective April 14, 2003. Intergovernmental and Interagency Effective April 4, 2003. Director of Speechwriting to the Affairs. Effective April 8, 2003. Special Assistant to the Assistant Confidential Assistant to the Assistant Assistant Secretary for Public Affairs. Secretary for Administration and Secretary for Management/Chief Effective April 15, 2003. Management. Effective April 11, 2003. Information. Effective April 9, 2003. Business Analyst to the Special Staff Assistant to the Director for Confidential Assistant to the Chief of Assistant to the Secretary, Private Public Liaison. Effective April 11, 2003. Staff. Effective April 10, 2003. Sector. Effective April 17, 2003. Special Assistant to the Assistant Deputy Director of Communications Policy Analyst to the Deputy Chief of Secretary for Employment Standards. to the Director for Public Affairs Staff (Policy). Effective April 18, 2003. Effective April 15, 2003. (Communications Director). Effective Press Secretary for Science and Staff Assistant to the Assistant April 10, 2003. Technology to the Assistant Secretary Secretary for Policy. Effective April 22, Deputy Secretary’s Regional for Public Affairs. Effective April 23, 2003. Representative-Region VII to the Deputy 2003. Assistant Secretary for Regional Executive Assistant to the Assistant Department of State Services. Effective April 11, 2003. Secretary for Plans, Programs and Special Assistant to the Assistant Special Assistant to the Assistant Budgets. Effective April 24, 2003. Secretary for African Affairs. Effective Secretary for Management/Chief Associate Executive Secretary April 14, 2003. Information Officer. Effective April 18, (Internal Coordination) to the Executive Foreign Affairs Officer to the 2003. Secretary. Effective April 24, 2003. Assistant Secretary for Intelligence and Research. Effective April 14, 2003. Department of Energy Staff Assistant to the Deputy Secretary for the Department of Homeland Special Assistant to the Assistant Advisor for Legislative Affairs to the Security. Effective April 24, 2003. Secretary for African Affairs. Effective Assistant Secretary for Conservation and Special Assistant to the Under April 24, 2003. Renewable Energy. Effective April 2, Secretary for Management. Effective Department of Transportation 2003. April 24, 2003. Senior Policy Advisor to the Secretary Senior Policy Advisor to the Scheduler to the Under Secretary for for the Department of Energy. Effective Administrator for the Maritime Management. Effective April 24, 2003. April 4, 2003. Administration. Effective April 2, 2003. Senior Advisor to the Assistant Department of Housing and Urban Assistant to the Secretary for Policy to Secretary for Conservation and Development the Secretary for Transportation. Renewable Energy. Effective April 4, Effective April 9, 2003. Special Assistant to the Assistant 2003. Special Assistant to the Administrator Secretary for Community Planning and Special Assistant for for Research and Special Programs Development. Effective April 4, 2003. Intergovernmental Affairs to the Administration. Effective April 9, 2003. Assistant Secretary for Energy Staff Assistant to the Assistant Director for Public and Consumer (Environmental Management). Effective Secretary for Congressional and Affairs to the Administrator for the April 11, 2003. Intergovernmental Relations. Effective Federal Motor Carrier Safety Chief of Staff/Senior Policy Advisor April 29, 2003. Administration. Effective April 9, 2003. for North American Affairs to the Deputy Assistant Secretary for Department of the Treasury Assistant Secretary for International Intergovernmental Relations to the Affairs. Effective April 17, 2003. Assistant Secretary for Congressional Senior Advisor to the Under Secretary Special Assistant to the Director for and Intergovernmental Relations. for Domestic Finance. Effective April 9, Scheduling and Advance. Effective Effective April 30, 2003. 2003. April 24, 2003. Department of the Interior Special Assistant to the Director for Strategic Planning, Scheduling and Department of Health and Human Counselor to the Assistant Secretary Advance. Effective April 14, 2003. Services for Indian Affairs. Effective April 29, Special Assistant to the Assistant Senior Advisor to the Assistant 2003. Secretary (Deputy Under Secretary) for Secretary for Legislation. Effective April Hispanic Media Outreach to the International Affairs. Effective April 24, 17, 2003. Director for Communications. Effective 2003. April 30, 2003. Special Assistant to the Assistant Department of Homeland Security Secretary for Legislative Affairs. Department of Justice Executive Assistant to the Director for Effective April 29, 2003. National Capital Region Coordination. Counsel to the Assistant Attorney Special Assistant to the Chief of Staff. Effective April 2, 2003. General. Effective April 2, 2003. Effective April 29, 2003.
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Special Assistant to the Assistant SECURITIES AND EXCHANGE General comments regarding the Secretary for Legislative Affairs. COMMISSION estimated burden hours should be Effective April 29, 2003. directed to the following persons: (i) Submission for OMB Review; Desk Officer for the Securities and Environmental Protection Agency Comment Request Exchange Commission, Office of Information and Regulatory Affairs, Special Assistant to the Associate Upon written request, copies available from: Administrator for Congressional and Securities and Exchange Commission, Office of Management and Budget, Intergovernmental Relations. Effective Office of Filings and Information Services, Room 10102, New Executive Office April 29, 2003. Washington, DC 20549. Building, Washington, DC 20503; and (ii) Kenneth A. Fogash, Acting Associate Senior Policy Advisor to the Deputy Extension: Rule 17Ac2–2 and Form TA–2, SEC File Executive Director/CIO, Office of Assistant Administrator for Water. No. 270–298, OMB Control No. 3235– Information Technology, Securities and Effective April 30, 2003. 0337. Exchange Commission, 450 Fifth Street, National Endowment for the Arts Notice is hereby given that pursuant NW., Washington, DC 20549. Comments to the Paperwork Reduction Act of 1995 must be submitted to OMB within 30 Speechwriter to the Chairman for the (44 U.S.C. 3501 et seq.), the Securities days of this notice. National Endowment for the Arts. and Exchange Commission Dated: June 26, 2003. Effective April 25, 2003. (‘‘Commission’’) has submitted to the Margaret H. McFarland. Director for Development to the Office of Management and Budget a Deputy Secretary. Senior Deputy Chairman. Effective April request for extension of the previously [FR Doc. 03–16885 Filed 7–2–03; 8:45 am] 29, 2003. approved collection of information BILLING CODE 8010–01–P Office of National Drug Control Policy discussed below. • Rule 17Ac2–2 and Form TA–2 Legislative Analyst to the Associate (OMB Control No. 3235–0337; SEC File SECURITIES AND EXCHANGE Director for Legislative Affairs. Effective No. 270–298). COMMISSION April 1, 2003. Rule 17Ac2–2, 17 CFR 240.17Ac2–2, and Form TA–2 under the Securities Confidential Counsel to the Deputy Submission for OMB Review; Exchange Act of 1934 require transfer Director for Demand Reduction. Comment Request agents to file an annual report of their Effective April 30, 2003. business activities with the Upon written request, copies available from: Office of Personnel Management Commission. The amount of time Securities and Exchange Commission, needed to comply with the requirements Office of Filings and Information Services, 450 Fifth Street, NW., Washington, DC Deputy Chief of Staff to the Chief of of Rule 17Ac2–2 and Form TA–2 varies. Staff. Effective April 24, 2003. 20549. From the total 1,210 registered transfer Extension: Office of the United States Trade agents, approximately 300 registrants Form 2–E, Rule 609, SEC File No. 270–222, Representative would be required to complete only OMB Control No. 3235–0233. Questions 1 through 4 and the signature Deputy Assistant U.S. Trade section of amended Form TA–2, which Notice is hereby given that, pursuant Representative to the Assistant U.S. we estimate would take each registrant to the Paperwork Reduction Act of 1995 Trade Representative for Congressional about 30 minutes, for a total burden of (44 U.S.C. 3501 et seq.), the Securities Affairs. Effective April 1, 2003. 150 hours (300 × .5 hours). and Exchange Commission Approximately 410 registrants would be (‘‘Commission’’) has submitted to the Small Business Administration required to answer Questions 1 through Office of Management and Budget a request for extension of the previously National Director for Native American 5, 10, and 11 and the signature section, which we estimate would take about 1 approved collection of information Affairs to the Associate Deputy discussed below. Administrator for Entrepreneurial hour and 30 minutes, for a total of 615 Development. Effective April 9, 2003. hours (410 × 1.5 hours). The remaining Form 2–E under the Securities Act of registrants, approximately 500, would 1933, Report of Sales Pursuant to Rule National Director—Matchmaking to be required to complete the entire Form 609 of Regulation E; and Rule 609 under the Associate Deputy Administrator for TA–2, which we estimate would take the Securities Act of 1933, Report of Government Contracts. Effective April about 6 hours, for a total of 3000 hours Sales. 16, 2003. (500 × 6 hours). We estimate that the Form 2–E (17 CFR 239.201) is used by Special Assistant to the Assistant total burden would be 3,765 hours (150 small business investment companies or Administrator for Congressional and hours + 615 hours + 3000 hours). business development companies Legislative Affairs. Effective April 18, We estimate that the total cost of engaged in limited offerings of securities 2003. reviewing and entering the information to report semi-annually the progress of Social Security Administration reported on the Forms TA–2 for the offering, including the number of respondents is $31.50 per hour. The shares sold. The form solicits Confidential Assistant to the Chief of Commission estimates that the total cost information such as the dates an Staff. April 25, 2003. would be $118,597.50 annually ($31.50 offering has commenced and has been × Authority: 5 U.S.C. 3301 and 3302; E.O. 3,765). completed, the number of shares sold 10577, 3 CFR 1954–1958 Comp., P.218. Rule 17Ac2–2 does not involve the and still being offered, amounts collection of confidential information. received in the offering, and expenses Office of Personnel Management. Please note that an agency may not and underwriting discounts incurred in Kay Coles James, conduct or sponsor, and a person is not the offering. This information assists the Director. required to respond to, a collection of staff in determining whether the issuer [FR Doc. 03–16742 Filed 7–2–03; 8:45 am] information unless it displays a has stayed within the limits of an BILLING CODE 6325–38–P currently valid control number. offering exemption.
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Form 2–E must be filed semi-annually SECURITIES AND EXCHANGE registered under section 12(g) of the during an offering and as a final report COMMISSION Act.4 at the completion of the offering. Less Any interested person may, on or frequent filing would not allow the [File No. 1–14137] before July 18, 2003, submit by letter to Commission to monitor the progress of the Secretary of the Securities and the limited offering in order to ensure Issuer Delisting; Notice of Application Exchange Commission, 450 Fifth Street, that the issuer was not attempting to To Withdraw From Listing and NW, Washington, DC 20549–0609, facts avoid the normal registration provisions Registration on the American Stock bearing upon whether the application of the securities laws. Exchange LLC (HLM Design, Inc., has been made in accordance with the Common Stock, $.001 par value) rules of the Amex and what terms, if During the calendar year 2002, there any, should be imposed by the were four filings of Form 2–E by two June 27, 2003. Commission for the protection of respondents. The Commission HLM Design, Inc., a Delaware investors. The Commission, based on estimates, based on its experience with corporation (‘‘Issuer’’), has filed an the information submitted to it, will disclosure documents generally and application with the Securities and issue an order granting the application Form 2–E in particular, and based on Exchange Commission (‘‘Commission’’), after the date mentioned above, unless informal contacts with the investment pursuant to Section 12(d) of the the Commission determines to order a company industry, that the total annual Securities Exchange Act of 1934 hearing on the matter. 1 burden associated with information (‘‘Act’’) and Rule 12d2–2(d) For the Commission, by the Division of collection, Form 2–E preparation, and thereunder,2 to withdraw its Common Market Regulation, pursuant to delegated submission is four hours per filing or 16 Stock, $.001 par value (‘‘Security’’), authority.5 from listing and registration on the hours for all respondents. Jonathan G. Katz, The estimates of average burden hours American Stock Exchange LLC (‘‘Amex’’ or ‘‘Exchange’’). Secretary. are made solely for the purposes of the The Issuer stated in its application [FR Doc. 03–16813 Filed 7–2–03; 8:45 am] Act and are not derived from a BILLING CODE 8010–01–P comprehensive or even representative that it has met the requirements of Amex Rule 18 by complying with all survey or study of the cost of applicable laws in the State of Delaware, Commission rules and forms. SECURITIES AND EXCHANGE in which it is incorporated, and with the COMMISSION Form 2–E does not involve any Amex’s rules governing an issuer’s recordkeeping requirements. The voluntary withdrawal of a security from Sunshine Act Meetings information required by the form is listing and registration. mandatory and the information The Board of Directors (‘‘Board’’) of Notice is hereby given, pursuant to provided will not be kept confidential. the Issuer approved resolutions on June the provisions of the Government in the The Commission may not conduct or 20, 2003 to withdraw the Issuer’s Sunshine Act, Pub. L. 94–409, that the sponsor, and a person is not required to Security from listing on the Amex. The Securities and Exchange Commission respond to, a collection of information Board of the Issuer states that it is taking will hold the following meetings during unless it displays a currently valid such action for the following reasons: (i) the week of July 7, 2003: A Closed Meeting will be held on control number. The current trading market for the Tuesday, July 8, 2003 at 2 p.m., and an General comments regarding the Issuer’s Security does not provide liquidity for the Issuer’s stockholders or Open Meeting will be held on Thursday, above information should be directed to realistic potential for share appreciation July 10, 2003, at 2 p.m. in Room 1C30, the following persons: (i) Desk Officer and otherwise limits the Issuer’s ability the William O. Douglas Room. for the Securities and Exchange Commissioners, Counsel to the to engage in transactions based on the Commissioners, the Secretary to the Commission, Office of Information and Issuer’s true enterprise value; and (ii) Commission, and recording secretaries Regulatory Affairs, Office of ongoing audit and legal fees, stock will attend the Closed Meeting. Certain Management and Budget, Room 10102, exchange fees, the costs of investor staff members who have an interest in New Executive Office Building, relations, press releases and annual Washington, DC 20503; and (ii) Kenneth the matters may also be present. reports, director and officer liability The General Counsel of the A. Fogash, Acting Associate Executive insurance premiums attributable to the Director/CIO, Office of Information Commission, or his designee, has Issuer’s public company status, and certified that, in his opinion, one or Technology, Securities and Exchange potential additional costs and related more of the exemptions set forth in 5 Commission, 450 Fifth Street, NW., management time and attention U.S.C. 552b(c)(3), (5), (7), (9)(B) and (10) Washington, DC 20549. Comments must associated with compliance with the and 17 CFR 200.402(a)(3), (5), (7), (9)(ii) be submitted to OMB within 30 days of Sarbanes-Oxley Act and related and (10), permit consideration of the this notice. rulemaking from the Amex and the scheduled matters at the Closed Dated: June 23, 2003. Commission represent, collectively, a Meeting. substantial annual burden to the Margaret H. McFarland, The subject matter of the Closed Company. Meeting scheduled for Tuesday, July 8, Deputy Secretary. The Issuer’s application relates solely 2003 will be: [FR Doc. 03–16886 Filed 7–2–03; 8:45 am] to the withdrawal of the Securities from Institution and settlement of BILLING CODE 8010–01–P listing on the Amex and from administrative proceedings of an registration under section 12(b) of the enforcement nature; Act 3 shall not affect its obligation to be Institution and settlement of injunctive actions; 1 15 U.S.C. 78l(d). 2 17 CFR 240.12d2–2(d). 4 15 U.S.C. 78l(g). 3 15 U.S.C. 78l(b). 5 17 CFR 200.30–3(a)(1).
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Formal orders of investigation; of the discounts on sales charges that would filed Amendment No. 2 to the proposed Post-argument discussion; and have been applicable to their investments rule change.4 The Commission is Opinions. had the customers purchased Class A shares publishing this notice to solicit The subject matter of the Open in like amounts. comments on the proposed rule change, Based on these violations, the law judge Meeting scheduled for Thursday, July as amended, from interested persons. 10, 2003 will be: suspended Flanagan from association with any broker or dealer for four months, and I. Self-Regulatory Organization’s 1. The Commission will hear oral argument ordered him to pay a civil money penalty of Statement of the Terms of Substance of on an appeal by the Division of Enforcement $10,000 and to disgorge $12,469. The law the Proposed Rule Change and the Office of the Chief Accountant from judge suspended Kindschi from association an initial decision of an administrative law with any broker, dealer, or investment The Amex proposes to permit the judge. The law judge found that Michael J. adviser for three months, and ordered him to dissemination of option quotes in sizes Marrie and Brian L. Berry did not engage in pay a civil money penalty of $7,500, and to of less than ten (10) contracts. Below is improper professional conduct within the disgorge $3,762. The law judge also censured the text of the proposed rule change. meaning of Rule of Practice 102(e) during the Spectrum Administration and imposed Proposed new text is italicized and course of an audit by the accounting firm of cease-and-desist orders on Flanagan, proposed deleted text is [bracketed]. Coopers & Lybrand LLP (Coopers) of the 1994 Kindschi, and Spectrum Administration. fiscal year financial statements of California Among the issues likely to be considered * * * * * Micro Devices, Inc. (CMD), a public are: Rule 958A. Application of the Firm company. Marrie, a certified public a. Whether respondents committed the accountant and former partner with Coopers, alleged violations; and Quote Rule was the engagement partner for the audit of b. if so, whether sanctions should be (a) No Change CMD. Berry, a certified public accountant imposed in the public interest. (b) No Change and former manager with Coopers, was the At times, changes in Commission (c) Obligations of a Responsible audit manager for the CMD audit. priorities require alterations in the Broker or Dealer— The Division alleges that Marrie and Berry (i) Pursuant to SEC Rule 11Ac1–1 recklessly failed to comply with applicable scheduling of meeting items. For further information and to ascertain what, if each responsible broker or dealer for standards of professional conduct in their each series of each listed option class audit of CMD’s 1994 fiscal year financial any, matters have been added, deleted, shall promptly communicate to the statements in three areas: (a) CMD’s write-off or postponed, please contact the Office of $12 million of accounts receivable; (b) of the Secretary at (202) 942–7070. Exchange its best bid, best offer, confirmation of CMD’s accounts receivable, quotation size and aggregate quotation and (c) CMD’s sales returns and allowances Dated: June 30, 2003. size. No responsible broker or dealer for sale returns. The Division maintains that Jonathan G. Katz, shall communicate a quotation size or Marrie and Berry recklessly failed to conduct Secretary. aggregate quotation size for less than the audit in accordance with Generally [FR Doc. 03–17001 Filed 6–30–03; 4:36 pm] [ten] one contract[s]. This obligation Accepted Auditing Standards as a result of BILLING CODE 8010–01–P may be fulfilled by the use of an their failure to exercise professional automated quotation system. skepticism and to obtain sufficient competent (A) Subject to the provisions of evidential matter with respect to these audit paragraph (d) of this rule, each areas. SECURITIES AND EXCHANGE Among the issues likely to be considered COMMISSION responsible broker or dealer shall be are: obligated to execute any customer order [Release No. 34–48101; File No. SR–AMEX– in an option series in an amount up to a. Whether respondents committed the 2003–24] alleged violations; and its published quotation size. b. if so, whether sanctions should be Self-Regulatory Organizations; Notice (B) Subject to the provisions of imposed in the public interest. of Filing of Proposed Rule Change and paragraph (d) of this rule, each 2. The Commission will also hear oral Amendments No. 1 and 2 by the responsible broker or dealer shall be argument on an appeal by Michael A. American Stock Exchange LLC obligated to execute any order for the Flanagan, Ronald O. Kindschi, and Spectrum account of a U.S. registered or foreign Administration, Inc. of an initial decision of Relating to the Dissemination of Option Quotations broker or dealer in a listed option in an an administrative law judge. During the amount up to the quotation size period covered by this Commission proceeding, Flanagan and Kindschi were June 26, 2003. established and periodically published registered representatives with FSC Pursuant to section 19(b)(1) of the by the Exchange which quotation size Securities Corporation, a registered broker- Securities Exchange Act of 1934 shall be for at least one contract. dealer. Kindschi also was associated with (‘‘Act’’),1 and Rule 19b–4 thereunder,2 (C) Subject to the provisions of Spectrum Administration, a registered notice is hereby given that on April 4, paragraph (d) of this Rule, each investment adviser. 2003, the American Stock Exchange, responsible broker or dealer shall The law judge found that Flanagan and LLC (‘‘Amex’’ or ‘‘Exchange’’) filed with comply with the Thirty Second Kindschi willfully violated Section 17(a) of the Securities and Exchange Response provisions set forth in the Securities Act of 1933, Section 10(b) of paragraph (d)(3) of SEC Rule 11Ac1–1. the Securities Exchange Act of 1934, and Commission (‘‘Commission’’) the Rule 10b-5 thereunder. The law judge also proposed rule change as described in Items I, II, and III below, which Items No. 1’’). In Amendment No. 1, the Exchange made found that Spectrum Administration violated modifications to the purpose section of this notice Sections 206(1) and (2) of the Investment have been prepared by the Amex. On to provide more detail and specificity regarding the Advisers Act of 1940, and that Kindschi, in May 15, 2003, the Amex filed proposal. The substance of Amendment No. 1 has his role as an associated person of Spectrum Amendment No. 1 to the proposed rule been incorporated in this notice in its entirety. Administration, aided and abetted Spectrum change.3 On June 12, 2003, the Amex 4 See Letter from Jeffrey P. Burns, Associate Administration’s violations. The law judge General Counsel, Amex, to Nancy Sanow, Assistant Director, Division of Market Regulation, concluded that the Respondents committed 1 15 U.S.C. 78s(b)(1). fraud by steering certain customers to Commission, dated June 11, 2003 (‘‘Amendment 2 17 CFR 240.19b–4. No. 2’’). In Amendment No. 2, the Exchange made purchase Class B shares in various mutual 3 See Letter from Jeffrey P. Burns, Associate minor technical amendments to language in the funds without disclosing all material facts General Counsel, Amex, to Nancy Sanow, Assistant purpose section. The substance of Amendment No. regarding the costs associated with those Director, Division of Market Regulation, 2 has been incorporated in this notice in its purchases, thereby depriving these customers Commission, dated May 12, 2003 (‘‘Amendment entirety.
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(ii) No Change size or aggregate quotation size for less execute a minimum size of ten (10) (d) No Change than ten (10) contracts.’’ contracts for a customer order that has In applying the Quote Rule to the an actual size of less than ten (10) Commentary———— options markets, the Commission has contracts. Therefore, under the .01 No specialist or registered given the options exchanges the proposed amendment to Amex Rule options trader shall be deemed to be a flexibility to determine whether they 958A, the responsible broker or dealer responsible broker or dealer with will collect from responsible brokers or will now be firm to customers based respect to a published bid or offer that dealers and make available to quotation upon the actual size of the order rather is erroneous as a result of an error or vendors the size associated with each than an artificial minimum of ten (10) omission made by the Exchange or any quotation or choose instead to establish contracts.7 The proposed rule change quotation vendor. If a published bid or by rule the size for which their also provides for a corresponding published offer is accurate but the disseminated bid and offer in each amendment to Commentary .01 to Amex published quotation size (or published option series is firm and not collect and Rule 958A so that the specialist and aggregate quotation size, as the case may disseminate size with each quotation. ROT responsible for the published bid be) associated with it is erroneous as a The Commission has also given the or offer is obligated for one (1) contract result of an error or omission made by options exchanges the flexibility to rather than ten (10) contracts in the Exchange or any quotation vendor, disseminate quotations with sizes at connection with an erroneous bid or then the specialist and registered which the specialist and registered offer that is the result of an error or options traders responsible for the traders are firm for customer accounts, omission by the Exchange or a quotation published bid or published offer shall and, at the same time, establish by rule vendor. be obligated as set forth in paragraph (c) a different size for which specialists and For purposes of the application of the of Rule 11Ac1–1 but only to the extent registered traders must be firm for Options Intermarket Linkage (the of [ten] one contract[s]. orders from the accounts of broker- ‘‘Linkage’’), the Amex represents that .02 No Change dealers. the proposal will not affect the As indicated above, the Amex * * * * * Exchange’s Linkage rules. In particular, previously determined that it would ‘‘Firm Customer Quote Size’’ 8 and II. Self-Regulatory Organization’s disseminate a size of ten (10) contracts ‘‘Firm Principal Quote Size’’ 9 as Statement of the Purpose of, and for all of its option quotations regardless defined in Amex Rule 940 will not be Statutory Basis for, the Proposed Rule of the underlying ‘‘actual’’ size revised.10 Accordingly, the obligation of Change associated with such quote. In connection with the dissemination of 7 An example of the rule’s current operation is as In its filing with the Commission, the follows: An Exchange specialist disseminates a Amex included statements concerning option quotations, the Exchange amended and received Commission market of 2 bid, 2.20 asked, in a particular option the purpose of and basis for the series at the minimum size of 10 contracts. An approval of Amex Rule 958A requiring proposed rule change and discussed any incoming order to buy one contract for 2.10 is that the communicated and entered making the new best bid and offer 2.10 bid, comments it received on the proposed disseminated size be a minimum of ten 2.20 asked. The Exchange disseminates 10 contracts rule change. The text of these statements (10) contracts. Therefore, responsible as the size of the 2.10 bid. If a market order to sell may be examined at the places specified 10 contracts is then entered in that series, the brokers or dealers on the Amex are in Item IV below. The Exchange has responsible broker-dealer (generally the specialist) required to disseminate a minimum size is obligated to buy the 9 contracts at a price of 2.10. prepared summaries, set forth in of ten (10) contracts for all options This proposal would eliminate the responsible sections A, B, and C below, of the most quotations regardless of whether such broker or dealers obligation to be firm for the significant aspects of such statements. balance between the actual size of a customer limit quotations may represent a customer or order and ten contracts as illustrated under this A. Self-Regulatory Organization’s broker-dealer order. example. Statement of the Purpose of, and The operation of Amex Rule 958A in 8 Exchange Rule 940(b)(7) defines ‘‘Firm Statutory Basis for, the Proposed Rule paragraph (c)(i)(A) requires that each Customer Quote Size’’ as the lesser of: (a) The number of option contracts that the Participant Change responsible broker or dealer execute Exchange sending a P/A Order guarantees it will customer orders in an option series in automatically execute at its disseminated quotation 1. Purpose an amount up to its published quotation in a series of an Eligible Option Class for Public In 2001, the Exchange amended the size. As a result, specialists and Customer orders entered directly for execution in that market; or (b) the number of option contracts firm quote requirement in Amex Rule registered options traders (‘‘ROTs’’) are that the Participant Exchange receiving a P/A Order 958A to accommodate the application of required to be firm for customer orders guarantees it will automatically execute at its Rule 11Ac1–1 (the ‘‘Quote Rule’’) under of up to 10 contracts regardless of the disseminated quotation in a series of an Eligible the Act.5 The amendments to the actual size of the customer order. Option Class for Public Customer orders entered directly for execution in that market. The number Commission’s Quote Rule in 2000 were Paragraph (c)(i)(B) of Amex Rule 958A shall be at least 10. made to apply the firm quote provides that specialists and ROTs are 9 Exchange Rule 940(b)(8) defines ‘‘Firm Principal requirements to the option exchanges obligated to be firm for the account of Quote Size’’ as the number of options contracts that and option market makers, thereby, broker-dealer orders, including foreign a Participant Exchange guarantees it will execute at broker-dealers, for at least one (1) its disseminated quotation for incoming Principal requiring a corresponding revision to Orders in an Eligible Option Class. This number the rules of the options exchanges.6 At contract. shall be at least 10. that time, the Amex proposed in Rule The effect of the instant proposal will 10 See Securities Exchange Act Release Nos. 958A that ‘‘no responsible broker or be that if the disseminated quotation on 43086 (July 28, 2000), 65 FR 48023 (August 4, 2000) behalf of a customer order is for an (Original Linkage Plan Approval); 44482 (June 27, dealer shall communicate a quotation 2001), 66FR 35470 (July 5, 2001) (Plan Amendment order of less than ten (10) contracts, the No. 1 Approval); 46001 (May 30, 2002), 67 FR 5 See Securities Exchange Act Release No. 44145 Exchange would no longer disseminate 38687 (June 5, 2002) (Plan Amendments No. 2 and (April 2, 2001), 66 FR 18662 (April 10, 2001); and a minimum size of ten (10) contracts, 3 Approval); 47298 (January 31, 2003), 68 FR 6524 Securities Exchange Act Release No. 44383 (June 1, but instead, would disseminate the (February 7, 2003) (Plan Amendment No. 4 2001), 66 FR 30959 (June 8, 2001). Approval); 47274 (January 29, 2003), 68 FR 5313 6 See Securities Exchange Act Release No. 43591 actual size of the associated customer (February 3, 2003) (Plan Amendment No. 5 (November 17, 2000), 65 FR 75439 (December 1, order. As a result, the responsible broker Approval); and 47297 (January 31, 2003), 68 FR 2000). or dealer would not be required to Continued
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the specialist to execute at least a size addition, the dissemination of actual (ii) as to which the Amex consents, the of ten (10) contracts will be unchanged size quotes should also enable Commission will: in connection with Linkage Orders. specialists and ROTs to better manage (A) By order approve the proposed With respect to automatic executions their risks by enabling such specialists rule change, or (‘‘Auto-Ex’’) outside of Linkage, the and/or ROTs to reflect the size in quotes proposed change will not affect the based on market factors rather than (B) Institute proceedings to determine current minimum Auto-Ex size of ten regulatory requirements. The Amex whether the proposed rule change (10) contracts. Accordingly, orders that seeks through this proposal to match should be disapproved. 11 other option exchanges that currently are not Auto-Ex eligible or are subject IV. Solicitation of Comments to an exception in Amex Rule 933(f), are able to disseminate actual size will be manually handled by the market quotations for customer orders.13 Interested persons are invited to specialist and will receive an execution We believe that this proposal should submit written data, views and size of up to the disseminated size of the lead to increased competition on the arguments concerning the foregoing, quoted market. basis of size among the options including whether the proposed rule The Exchange believes that the instant exchanges, enabling investors to receive change, as amended, is consistent with better executions. proposal to revise the operation of the Act. Persons making written Amex Rule 958A so that option quotes 2. Statutory Basis submissions should file six copies are disseminated in actual size should thereof with the Secretary, Securities provide greater transparency to The Exchange believes that the and Exchange Commission, 450 Fifth investors and the marketplace because proposed rule change, as amended, is 14 Street NW., Washington, DC 20549– the actual size of orders will be consistent with section 6(b) of the Act, disclosed rather than an artificial in general, and furthers the objectives of 0609. Copies of the submission, all 15 minimum size. In addition, the Amex section 6(b), in particular, in that they subsequent amendments, all written further believes that the proposal to are designed to promote just and statements with respect to the proposed disseminate the actual size of quotes equitable principles of trade, to remove rule change that are filed with the will better reflect the true state of impediments to and perfect the Commission, and all written liquidity being offered at that time by mechanism of a free and open market communications relating to the the trading crowd. The Exchange notes, and a national market system. proposed rule change between the that as a result of the proposed rule B. Self-Regulatory Organization’s Commission and any person, other than change, the responsible broker or dealer Statement on Burden on Competition those that may be withheld from the public in accordance with the would be permitted to disseminate a The Exchange does not believe that size of less than ten (10) contracts. the proposed rule change will impose provisions of 5 U.S.C. 552, will be Currently, the responsible broker or any burden on competition that is not available for inspection and copying in dealer is required to disseminate a size necessary or appropriate in furtherance the Commission’s Public Reference of at least ten (10) contracts. of the purposes of the Act. Room. Copies of such filing will also be The Exchange submits that the available for inspection and copying at adoption of this proposal will foster C. Self-Regulatory Organization’s the principal office of the Amex. All increased competition by the Amex Statement on Comments on the submissions should refer to File No. against markets that disseminate quotes Proposed Rule Change Received From SR–Amex-2003–24 and should be with actual size. The Auto-Ex system at Members, Participants or Others submitted by July 18, 2003. the Amex available for both customer No written comments were solicited For the Commission, by the Division of and broker-dealer orders would not be or received with respect to the proposed impacted by this proposal.12 In Market Regulation, pursuant to delegated rule change. authority.16 6526 (February 7, 2003) (Approval of Amex Linkage III. Date of Effectiveness of the Margaret H. McFarland, Rules). Proposed Rule Change and Timing for Deputy Secretary. 11 The minimum eligible Auto-Ex size is ten (10) Commission Action contracts while the maximum eligible Auto-Ex size [FR Doc. 03–16884 Filed 7–2–03; 8:45 am] is determined by the Exchange subject to a 500 Within 35 days of the date of BILLING CODE 8010–01–P contract ceiling (except in the case of options on publication of this notice in the Federal QQQs which may be 2,000 contracts for the two Register or within such longer period (i) near term months and 1,000 contracts for all other months). as the Commission may designate up to 12 See Securities Exchange Act Release Nos. 90 days of such date if it finds such 22610 (November 8, 1985), 50 FR 47480 (November longer period to be appropriate and 18, 1985) (pilot program for XMI options); 23544 publishes its reasons for so finding or (August 20, 1986), 51 FR 30601 (August 27, 1986) (permanent approval of XMI pilot); 24714 (July 17, 1987), 52 FR 28396 (July 29, 1987) (expansion to as the Amex Options Display Book or ‘‘AODB,’’ for competitively traded options); and 46479 an execution. These situations occur when (i) the (September 10, 2002), 67 FR 58654 (September 17, best bid or offer is represented by a limit order on 2002) (automatic execution of broker-dealer option the AODB, (ii) the best bid or offer is locked or orders). Auto-Ex is an automated execution system crossed, (iii) there is a better bid or offer being that enables member firms to route public customer displayed by a competing market, or (iv) when market and limit orders in options for automatic certain systems allowable parameters have been execution at the bid or offer at the time the order exceeded. is entered. Auto-Ex executes, at the displayed bid 13 See Securities Exchange Act Release Nos. or offer, customer market and immediately 46325 (August 8, 2002), 67 FR 53376 (August 15, executable limit option orders up to a specified 2002) (Phlx 2002–15); 46029 (June 4, 2002), 67 FR number of contracts routed through the Common 40362 (June 12, 2002) (PCX 2002–30); and 45676 Message Switch (CMS’’) and the Amex Order File (March 29, 2002), 67 FR 16478 (April 5, 2002) (‘‘AOF’’). There are, however, some situations in (CBOE 2001–70). which orders otherwise eligible for execution on 14 15 U.S.C. 78f(b). Auto-Ex are routed to the specialist’s book, known 15 15 U.S.C. 78f(b)(5). 16 17 CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE the NYSE filed NYSE Amendment No. On October 9, 2002, the National COMMISSION 2 to its proposal.6 Association of Securities Dealers, Inc. (‘‘NASD’’), through its subsidiary, The [Release No. 34–48108; File Nos. SR–NYSE– Overy Letter’’); Keith Johnson, Chief Legal Counsel, Nasdaq Stock Market, Inc. (‘‘Nasdaq’’) 2002–46 and SR–NASD–2002–140] State of Wisconsin Investment Board (‘‘SWIB’’), filed a similar proposal relating to dated October 31, 2002 (‘‘SWIB Letter’’); Peter A. Self-Regulatory Organizations; New Irwin, Vice President, Legal Services, Consolidated shareholder approval for stock option York Stock Exchange, Inc. and Edison Company of New York, Inc. (‘‘conEdison’’), plans and other equity compensation dated October 31, 2002 (‘‘conEdison Letter’’); John National Association of Securities arrangements. On October 10, 2002, P. Clarson, Assistant Corporate Secretary and Nasdaq filed Nasdaq Amendment No. 1 Dealers, Inc.; Order Approving NYSE Senior Corporate Attorney, Law Department, 7 and Nasdaq Proposed Rule Changes RadioShack Corporation, dated October 30, 2002 to the proposed rule change. On (‘‘RadioShack Letter’’); Paul Lee, Shareholder October 17, 2002, the Nasdaq proposal, and Nasdaq Amendment No. 1 and Engagement Manager, Hermes Investment as amended, was published for Notice of Filing and Order Granting Management Limited, dated October 29, 2002 comment in the Federal Register.8 The Accelerated Approval to NYSE (‘‘Hermes Letter’’); John Endean, President, Commission received a total of 18 Amendments No. 1 and 2 and Nasdaq American Business Conference (‘‘ABC’’), dated October 31, 2002 (‘‘ABC Letter’’); James P. Hoffa, comment letters on the Nasdaq Amendments No. 2 and 3 Thereto General President, International Brotherhood of proposal.9 On March 24, 2003, Nasdaq Relating to Equity Compensation Plans Teamsters (‘‘IBT’’), dated November 1, 2002 (‘‘IBT Letter’’); Dorothy M. Donohue, Associate Counsel, filed Nasdaq Amendment No. 2 to the June 30, 2003. Investment Company Institute (‘‘ICI’’), dated proposed rule change.10 On June 23, November 1, 2002 (‘‘ICI Letter’’); Damon A. Silvers, 2003, Nasdaq filed Nasdaq Amendment I. Introduction Associate General Council, American Federation of No. 3 to its proposal.11 This order Labor and Congress of Industrial Organizations On October 7, 2002, the New York (‘‘AFL–CIO’’), dated November 1, 2002 (‘‘AFL–CIO Stock Exchange, Inc. (‘‘NYSE’’ or Letter’’); Nancy Straus Sundheim, Senior Vice 7 See letter from John D. Nachmann, Senior ‘‘Exchange’’) filed with the Securities President and General Counsel, Unisys Corporation, Attorney, Nasdaq, to Katherine A. England, dated November 1, 2002 (‘‘Unisys Letter’’); Michael Assistant Director, Division, Commission, dated and Exchange Commission R. Fanning, Chief Executive Officer, Central October 10, 2002 (‘‘Nasdaq Amendment No. 1’’). In (‘‘Commission’’ or ‘‘SEC’’), pursuant to Pension Fund of the International Union of Amendment No. 1, Nasdaq did the following: (1) section 19(b)(1) of the Securities Operating Engineers and Participating Employers Made technical corrections to its proposed rule Exchange Act of 1934 (‘‘Act’’) 1 and Rule (‘‘CPF’’), dated October 29, 2002 (‘‘CPF Letter’’); language; (2) clarified the exceptions to shareholder Ted White, Director, Corporate Governance, approval for tax qualified, non-discriminatory 2 19b–4 thereunder, a proposal relating California Public Employees’ Retirement System employee benefit plans, parallel nonqualified plans, to shareholder approval of equity- (‘‘CalPERS’’), dated October 31, 2002 (‘‘CalPERS and plans relating to an acquisition or merger; and compensation plans and the voting of Letter’’); Sheila W. Beckett, Employees Retirement (3) clarified in the purpose section of its filing that System of Texas, dated October 30, 2002 it was proposing to make conforming changes to proxies. On October 11, 2002, the NYSE (‘‘Employee Retirement System of Texas Letter’’); NASD Rules 4310(c)(17)(A) and 4320(e)(15)(A). proposal was published for public Herbert L. Dryer, Executive Director, State Teachers 8 See Securities Exchange Act Release No. 46649 comment in the Federal Register.3 On Retirement System of Ohio (‘‘STRS Ohio’’), dated (October 11, 2002), 67 FR 64173 (‘‘Notice of the November 6, 2002, the NYSE filed October 30, 2002 (STRS Ohio Letter’’); William G. Nasdaq Proposal’’). Nasdaq represents that it made Clark, Deputy Director, New Jersey Division of a technical error in its reprinting of the original rule NYSE Amendment No. 1 to the Investment (‘‘NJ Division’’), Department of text of NASD Rule 4320(e)(15). Nasdaq is not 4 proposed rule change. The Commission Treasury, dated October 31, 2002 (‘‘NJ Division proposing to change this language. Telephone received a total of 30 comment letters on Letter’’); James E. Heard, Chief Executive Officer conversation between Sara Nelson Bloom, Associate the NYSE proposal.5 On June 20, 2003, and Patrick McGurn, Vice President and Special General Counsel, Nasdaq, and Sapna C. Patel, Counsel, Institutional Shareholder Services (‘‘ISS’’), Attorney, Division, Commission, on June 30, 2003. dated October 31, 2002 (‘‘ISS I Letter’’); Sullivan & 9 1 See letters to Jonathan G. Katz, Secretary, 15 U.S.C. 78s(b)(1). Cromwell, dated November 1, 2002 (‘‘Sullivan & Commission, from James E. Heard, Chief Executive 2 17 CFR 240.19b–4. Cromwell Letter’’); Mark Heesen, President, Officer and Patrick McGurn, Vice President and 3 See Securities Exchange Act Release No. 46620 National Venture Capital Association (‘‘NVCA’’), Special Counsel, ISS, dated November 6, 2002 (‘‘ISS (October 8, 2002), 67 FR 63486 (‘‘Notice of the dated November 1, 2002 (‘‘NVCA I Letter’’); Marsha II Letter’’); and Mark Heesen, President, NVCA, NYSE Proposal’’). The Commission also published Richter, Chief Executive Officer, Los Angeles dated November 1, 2002 (‘‘NVCA II Letter’’). The County Employees Retirement Association a correction to the Notice of the NYSE Proposal to Commission notes that 16 of the 18 comment letters (‘‘LACERA’’), dated November 7, 2002 (‘‘LACERA indicate that the word ‘‘less’’ in footnote 10 should received on the Nasdaq proposal are letters Letter’’); Stanley Keller, Chair, Committee on be changed to ‘‘greater.’’ See Securities Exchange commenting jointly on the NYSE and Nasdaq Federal Regulation of Securities, American Bar Act Release No. 44620A (October 21, 2002), 67 FR proposals. See TIAA CREF Letter; CII Letter; Association (‘‘ABA’’), Section of Business Law, 65617 (October 25, 2002). Barclays Letter; Allen & Overy Letter; SWIB Letter; dated November 11, 2002 (‘‘ABA Letter’’); Kay R. 4 MSRS Letter; Hermes Letter; ICI Letter; AFL–CIO See letter from Darla C. Stuckey, Corporate H. Evans, Executive Director, Maine State Letter; CPA Letter; CalPERS Letter; STRS Letter; NJ Secretary, NYSE, to Nancy J. Sanow, Assistant Retirement System (‘‘MSRS’’), dated October 28, Division Letter; LACERA Letter; ABA Letter; and Director, Division of Market Regulation 2002 (‘‘MSRS Letter’’); Jerome Pella, dated October (‘‘Division’’), Commission, dated November 5, 2002 30, 2002 (‘‘Pella Letter’’); Michael Ryan, Executive Pella Letter. (‘‘NYSE Amendment No. 1’’). In NYSE Amendment Vice President and General Counsel, American 10 See letter from Sara Nelson Bloom, Associate No. 1, the NYSE made technical corrections to its Stock Exchange LLC (‘‘Amex’’), dated December 19, General Counsel, Nasdaq, to Katherine A. England, proposed rule language. 2003 (‘‘Amex I Letter’’); Claudia Crowley, Vice Assistant Director, Division, Commission, dated 5 See letters to Jonathan G. Katz, Secretary, President, Listing Qualifications, Amex, dated March 24, 2003 (‘‘Nasdaq Amendment No. 2’’). In Commission, from Deborah Ackerman, Vice February 19, 2003 (‘‘Amex II Letter’’); and William Nasdaq Amendment No. 2, Nasdaq clarified the President and General Counsel, Southwest Airlines and Margaret Gillespie, dated May 17, 2003 term ‘‘material amendment’’ to a stock option plan Co., dated October 15, 2002 (‘‘Southwest Airlines (Gillespie Letter’’). by providing a non-exclusive list of what Nasdaq Letter’’); Peter C. Clapman, Senior Vice President 6 See letter from Darla C. Stuckey, Corporate would consider to be ‘‘material,’’ and proposed an and Chief Counsel, Corporate Governance, Teacher Secretary, NYSE, to Nancy J. Sanow, Assistant exception to shareholder approval for plans that Insurance and Annuity Association of America Director, Division, Commission, dated June 20, provide a way to purchase shares on the open College Retirement And Equities Fund (‘‘TIAA 2003 (‘‘NYSE Amendment No. 2’’). In NYSE market or from the issuer at fair market value. CREF’’), dated October 24, 2002 (‘‘TIAA CREF Amendment No. 2, the NYSE proposed changes to Nasdaq replaced Nasdaq Amendment No. 2 in its Letter’’); R. Thomas Buffenbarger, International the NYSE proposal based on discussions with entirety with Nasdaq Amendment No. 3. As noted President, International Association of Machinists Commission staff and in response to the comment below, some of the proposed changes in Nasdaq and Aerospace Workers (‘‘IAM’’), dated October 22, letters. As discussed below, NYSE Amendment No. Amendment No. 2 were incorporated into Nasdaq 2002 (‘‘IAM Letter’’); Sarah A.B. Teslik, Executive 2, among other things, did the following: (1) Amendment No. 3. See infra note 11 and Section Director, Council of Institutional Investors (‘‘CII’’), Clarified the terms ‘‘equity compensation plan,’’ II.B. dated October 24, 2002 (‘‘CII Letter’’); Linda S. ‘‘material revision,’’ and ‘‘repricing’; (2) defined 11 See letter from Sara Nelson Bloom, Associate Selbach, Global Proxy Manager, Barclays Global ‘‘evergreen,’’ ‘‘formula’’ and ‘‘discretionary’’ plans; General Counsel, Nasdaq, to Katherine A. England, Investors, dated October 24, 2002 (‘‘Barclays and (3) provided new transition rules. For a more Assistant Director, Division, Commission, dated Letter’’); Henry I. Morgenbesser et al., Allen & detailed description of NYSE Amendment No. 2, June 23, 2003 (‘‘Nasdaq Amendment No. 3’’). In Overy et al., dated October 31, 2002 (‘‘Allen & see Section II.A., infra. Continued
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approves the NYSE proposal, as compensatory grant of options or other discussions with Commission staff. As a amended by NYSE Amendments No. 1 equity securities that is not made under general matter, the changes provide and 2, and the Nasdaq proposal, as a plan. The NYSE has also proposed additional guidance as to the scope of amended by Nasdaq Amendments No. changes to clarify certain plans that the NYSE’s proposed rule changes, 1, 2, and 3. The Commission has found would not be considered equity including the type of material changes good cause to grant accelerated approval compensation plans under its to a plan that must be submitted for to NYSE Amendments No. 1 and 2 and definition.14 In addition, the NYSE shareholder approval. The NYSE also Nasdaq Amendments No. 2 and 3, as proposal provides for certain types of proposes to include a new section discussed below, and is soliciting grants that are exempted from entitled ‘‘Transition Rules’’ to clarify comments from interested persons on shareholder approval. These limited when shareholder approval will be these amendments. exemptions include: (1) Inducement required for plans adopted before the effective date of the proposed II. Description of the NYSE and Nasdaq awards to person’s first becoming an amendments. The basic structure of the Proposals employee of the issuer or any of its subsidiaries; (2) mergers and rule as proposed has remained the same A. NYSE Proposal acquisitions, when conversions, as originally submitted. While the The NYSE proposes to adopt new replacements or adjustments of Notice of the NYSE Proposal reflects the section 303A(8) of the NYSE’s Listed outstanding options or other equity original format of the recommendations Company Manual, which would require compensation awards are necessary to made by the Committee, stating a basic shareholder approval of all equity- reflect the transaction, and when shares principle and including additional compensation plans and material available under certain plans acquired explanation and commentary, the NYSE revisions to such plans, subject to in corporate acquisitions and mergers states that it intended, through the limited exemptions.12 This new rule, may be used for certain post-transaction proposed amendments to the rule text of when approved by the Commission, will grants without further shareholder section 303A(8) in NYSE Amendment replace the NYSE’s current pilot approval; and (3) plans intended to meet No. 2 to write the rule language in a program relating to amendments to the requirements of section 401(a) of the more ‘‘plain-English’’ format to enhance Sections 312.01, 312.03 and 312.04 of Internal Revenue Code 15 (e.g., ESOPs), understanding of the rule. the NYSE’s Listed Company Manual plans intended to meet the requirements 1. Significant Changes From the with respect to the definition of a of section 423 of the Internal Revenue Original Filing of the NYSE Proposal 13 Code,16 and parallel excess plans. The ‘‘broadly-based’’ stock option plan. The NYSE proposes to clarify the Under the NYSE proposal, as NYSE also proposes that, in description of plans that are not equity amended, an equity compensation plan circumstances in which equity compensation plans to expressly is defined as a plan or other compensation plans and amendments to exclude plans that do not provide for plans are not subject to shareholder arrangement that provides for the delivery of equity securities of the issuer approval, the plans and amendments delivery of equity securities (either (e.g., plans that pay in cash), and still must be subject to the approval of newly issued or treasury shares) of the deferred compensation plans under the company’s compensation committee listed company to any employee, which employees pay full current or a majority of the company’s director or other service provider as market value for deferred shares. compensation for services, including a independent directors. Finally, in its The NYSE proposes to modify the proposal, the NYSE provides a non- language of the rule to clarify that Nasdaq Amendment No. 3, Nasdaq did the exclusive list of ‘‘material revisions’’ to shareholder approval is required for pre- following: (1) Replaced Nasdaq Amendment No. 2 a plan that would require shareholder in its entirety; (2) stated that on November 14, 2002, existing plans that were not approved the Nasdaq Board of Directors approved, and that approval, and also clarifies when plans by shareholders and that have neither on December 9, 2002, the Board of Governors of the containing an ‘‘evergreen formula’’ and an evergreen formula nor a specific NASD reviewed, all remaining aspects of the when the ‘‘repricings’’ of options in number of shares available under the Nasdaq proposal; and (3) made clarifying and plans would require shareholder plan. However, the NYSE proposes to conforming changes to the Nasdaq proposal in 17 response to discussions with Commission staff and approval. provide a transition period for requiring in response to the comment letters. As discussed The NYSE also proposes to amend shareholder approval for such plans.18 below, Nasdaq Amendment No. 3, among other NYSE Rule 452 to prohibit member In addition, the NYSE has specified things, also clarified the term ‘‘material organizations from voting on equity amendment,’’ proposed an exception to shareholder that, during the period prior to approval for plans that provide a way to purchase compensation plans unless the approval, the plan may be utilized, but shares on the open market or from the issuer at fair beneficial owner of the shares has given only in a manner consistent with past market value, and discussed evergreen plans and voting instructions. In addition, the practice. repricings. For a more detailed description of NYSE proposes to make conforming In the section entitled ‘‘Material Nasdaq Amendment No. 3, see Section II.B., infra. changes to current Sections 303.00, 12 The NYSE proposal is part of the Revisions,’’ the NYSE proposes to more recommendations made by the NYSE’s Corporate 312.03, 312.04, and 402.08 of the specifically define the concept of Accountability and Listing Standards Committee NYSE’s Listed Company Manual. ‘‘evergreen’’ plans (i.e., that contain a (‘‘Committee’’), a committee appointed by NYSE to NYSE Amendment No. 2 to the NYSE formula for automatic increases in the review its corporate governance listing standards. filing proposes a number of changes to 19 The rest of the Committee’s recommendations are shares available) or ‘‘formula’’ plans in a separate rule filing, File No. SR–NYSE–2002– the rules as they were published in the (i.e., plans that provide for automatic 33. See Securities Exchange Act Release No. 47672, Notice of the NYSE Proposal. According grants pursuant to a formula), and 68 FR 19051 (April 17, 2003) (published notice of to the NYSE, these changes were made proposes to introduce the concept of SR–NYSE–2002–33). in response to the comment letters and ‘‘discretionary plans.’’ Generally, a 13 See Securities Exchange Act Release No. 41479 (June 4, 1999), 64 FR 31667 (June 11, 1999) (notice 14 of filing and order granting accelerated approval, on See NYSE Amendment No. 2, supra note 6. See 18 See Section II.A.2., infra. a pilot basis, to File No. SR–NYSE–98–32). The also Section II.A.1. and 2., infra. 19 Under the NYSE’s rules, an increase or grant Pilot was extended several times, most recently 15 26 U.S.C. 401(a). pursuant to an evergreen or formula plans would until June 30, 2003. See Securities Exchange Act 16 26 U.S.C. 423. require shareholder approval for each increase or Release No. 47409 (February 26, 2003), 68 FR 10560 17 See NYSE Amendment No. 2, supra note 6. See grant unless the plan has a term of not more than (March 5, 2003) (File No. SR–NYSE–2003–04). also Section II.A.1. and 2., infra. 10 years.
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discretionary plan is a plan that The NYSE proposes to add a • Plans that are made available to contains no limit on the number of requirement that an issuer must notify shareholders generally, such as a typical shares available and is not a formula the NYSE in writing when it uses any dividend reinvestment plan. plan. The NYSE proposes that each of the exemptions from the shareholder • Plans that merely allow employees, grant under such a discretionary plan approval requirements. directors or other service providers to will require shareholder approval The NYSE has not made any changes elect to buy shares on the open market regardless of whether the plan has a to the proposed amendments to NYSE or from the listed company for their term of not more than 10 years. In Rule 452. The NYSE proposes, however, current fair market value, regardless of addition, the NYSE represents that the a transition period that will make the whether: proposed language under ‘‘Transition amended rule applicable only to —The shares are delivered immediately Rules’’ relating to evergreen plans shareholder meetings that occur on or or on a deferred basis; or clarifies that an evergreen plan that was after the 90th day following the date of —The payments for the shares are made approved by shareholders but that does the SEC order approving the amended directly or by giving up compensation not have a ten-year term must be: (1) rule. In addition, the NYSE proposes to that is otherwise due (for example, Approved by shareholders before any make a conforming change to NYSE through payroll deductions). shares that become available as a result Rule 452 subsection .11(9) to reflect the Material Revisions of a formulaic increase are utilized, or amendments that are being proposed to (2) amended to include a term of no NYSE Rule 452 subsection .11(12), and A ‘‘material revision’’ of an equity- more than ten years from the date the proposes to reflect the proposed compensation plan includes (but is not plan was adopted or last approved by amendments to NYSE Rule 452 in limited to), the following: • shareholders. If the plan were amended Section 402.08 of the NYSE’s Listed A material increase in the number to include such term, shareholder Company Manual (‘‘Giving a Proxy to of shares available under the plan (other approval would not be required. No Vote Stock’’), which restates NYSE Rule than an increase solely to reflect a action would be required, however, if a 452 in part. reorganization, stock split, merger, plan were frozen at the level of shares spinoff or similar transaction). available at the time the rule becomes 2. Amended New Section 303A(8) of the —If a plan contains a formula for effective. The enumerated list of NYSE’s Listed Company Manual automatic increases in the shares ‘‘Material Revisions’’ has also been As amended by NYSE Amendments available (sometimes called an revised to change the term ‘‘changes the No. 1 and 2, proposed new section ‘‘evergreen formula’’) or for automatic types of awards’’ to ‘‘expansion of the 303A(8) of the NYSE’s Listed Company grants pursuant to a formula, each types of awards.’’ The NYSE represents Manual will read as follows: such increase or grant will be that no further substantive amendment considered a revision requiring 8. Shareholders must be given the to the definition of ‘‘Material Revisions’’ shareholder approval unless the plan opportunity to vote on all equity- have been made. has a term of not more than ten years. compensation plans and material The NYSE proposal has been This type of plan (regardless of its term) is amended to clarify that repricings that revisions thereto, with limited exemptions explained below. referred to below as a ‘‘formula plan.’’ have commenced prior to the date of Examples of automatic grants pursuant to a effectiveness of the proposal (i.e., Equity-compensation plans can help formula are (1) annual grants to directors of exchange offers to optionees) will not be align shareholder and management restricted stock having a certain dollar value, subject to shareholder approval interests, and equity-based awards are and (2) ‘‘matching contributions,’’ whereby (assuming that such repricing did not often very important components of stock is credited to a participant’s account require shareholder approval under employee compensation. To provide based upon the amount of compensation the existing NYSE rules). checks and balances on the potential participant elects to defer. The NYSE proposal has also been dilution resulting from the process of —If a plan contains no limit on the number amended to clarify that inducement earmarking shares to be used for equity- of shares available and is not a formula plan, then each grant under the plan will awards are available for rehires based awards, the Exchange requires that all equity-compensation plans, and require separate shareholder approval following a bona fide period of regardless of whether the plan has a term employment interruption. The NYSE any material revisions to the terms of of not more than ten years. such plans, be subject to shareholder further proposes to clarify that This type of plan is referred to below as a inducement awards include grants to approval, with the limited exemptions ‘‘discretionary plan.’’ A requirement that new employees in connection with a explained below. grants be made out of treasury shares or merger or acquisition. In addition, the Definition of Equity-Compensation Plan repurchased shares will not, in itself, be NYSE proposes to include a considered a limit or pre-established formula requirement that listed companies must An ‘‘equity-compensation plan’’ is a so as to prevent a plan from being considered provide prompt public disclosure plan or other arrangement that provides a discretionary plan. following the grant of any inducement for the delivery of equity securities • An expansion of the types of award in reliance on the exemption.20 (either newly issued or treasury shares) awards available under the plan. With respect to the proposed of the listed company to any employee, • A material expansion of the class of exception for parallel nonqualified director or other service provider as employees, directors or other service plans, the NYSE proposes to redesignate compensation for services. Even a providers eligible to participate in the the exception as applying to ‘‘parallel compensatory grant of options or other plan. excess plans’’ and proposes to add an equity securities that is not made under • A material extension of the term of additional condition relating to a plan is, nonetheless, an ‘‘equity- the plan. employer equity contributions that a compensation plan’’ for these purposes. • A material change to the method of plan must satisfy in order to be deemed However, the following are not determining the strike price of options a parallel excess plan. ‘‘equity-compensation plans’’ even if the under the plan. brokerage and other costs of the plan are —A change in the method of 20 See Section II.A.2., infra. paid for by the listed company: determining ‘‘fair market value’’ from
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the closing price on the date of grant employment. Inducement awards combined enterprise. Further, mergers to the average of the high and low include grants to new employees in or acquisitions are not routine price on the date of grant is an connection with a merger or acquisition. occurrences, and are not likely to be example of a change that the Promptly following a grant of any abused. Therefore, the Exchange Exchange would not view as material. inducement award in reliance on this considers both of these exemptions to be • The deletion or limitation of any exemption, the listed company must consistent with the fundamental policy provision prohibiting repricing of disclose in a press release the material involved in this standard. terms of the award, including the options. See the next section for details. Qualified Plans, Parallel Excess Plans recipient(s) of the award and the Note that an amendment will not be and Section 423 Plans considered a ‘‘material revision’’ if it number of shares involved. The following types of plans (and curtails rather than expands the scope of Mergers and Acquisitions the plan in question. material revisions thereto) are exempt Two exemptions apply in the context from the shareholder approval Repricings of corporate acquisitions and mergers. requirement: A plan that does not contain a First, shareholder approval will not be • Plans intended to meet the provision that specifically permits required to convert, replace or adjust requirements of Section 401(a) of the repricing of options will be considered outstanding options or other equity- Internal Revenue Code 21 (e.g., ESOPs); • for purposes of this listing standard as compensation awards to reflect the Plans intended to meet the prohibiting repricing. Accordingly any transaction. requirements of Section 423 of the actual repricing of options will be Second, shares available under certain Internal Revenue Code;22 and • considered a material revision of a plan plans acquired in corporate acquisitions ‘‘Parallel excess plans’’ as defined even if the plan itself is not revised. and mergers may be used for certain below. This consideration will not apply to a post-transaction grants without further Section 401(a) plans and section 423 repricing through an exchange offer that shareholder approval. This exemption plans are already regulated under the commenced before the date this listing applies to situations where a party that Internal Revenue Code and Treasury standard became effective. is not a listed company following the regulations. Section 423 plans, which ‘‘Repricing’’ means any of the transaction has shares available for grant are stock purchase plans under which following or any other action that has under pre-existing plans that were an employee can purchase no more than the same effect: previously approved by shareholders. A $25,000 worth of stock per year at a • Lowering the strike price of an plan adopted in contemplation of the plan-specified discount capped at 15%, option after it is granted. merger or acquisition transaction would are also required by the Internal • Any other action that is treated as not be considered ‘‘pre-existing’’ for Revenue Code to receive shareholder a repricing under generally accepted purposes of this exemption. approval. While section 401(a) plans accounting principles. Shares available under such a pre- and parallel excess plans are not • Canceling an option at a time when existing plan may be used for post- required to be approved by its strike price exceeds the fair market transaction grants of options and other shareholders, U.S. GAAP requires that value of the underlying stock, in awards with respect to equity of the the shares issued under these plans be exchange for another option, restricted entity that is the listed company after ‘‘expensed’’ (i.e., treated as a stock, or other equity, unless the the transaction, either under the pre- compensation expense on the income cancellation and exchange occurs in existing plan or another plan, without statement) by the company issuing the connection with a merger, acquisition, further shareholder approval, so long as: shares. spin-off or other similar corporate • The number of shares available for An equity-compensation plan that transaction. grants is appropriately adjusted to provides non-U.S. employees with reflect the transaction; substantially the same benefits as a Exemptions • The time during which those shares comparable Section 401(a) plan, Section This listing standard does not require are available is not extended beyond the 423 plan or parallel excess plan that the shareholder approval of employment period when they would have been listed company provides to its U.S. inducement awards, certain grants, available under the pre-existing plan, employees, but for features necessary to plans and amendments in the context of absent the transaction; and comply with applicable foreign tax law, mergers and acquisitions, and certain • The options and other awards are are also exempt from shareholder specific types of plans, all as described not granted to individuals who were approval under this section. below. However, these exempt grants, employed, immediately before the The term ‘‘parallel excess plan’’ plans and amendments may be made transaction, by the post-transaction means a plan that is a ‘‘pension plan’’ only with the approval of the company’s listed company or entities that were its within the meaning of the Employee independent compensation committee subsidiaries immediately before the Retirement Income Security Act or the approval of a majority of the transaction. (‘‘ERISA’’) 23 that is designed to work in company’s independent directors. Any shares reserved for listing in parallel with a plan intended to be Companies must also notify the connection with a transaction pursuant qualified under Internal Revenue Code Exchange in writing when they use one to either of these exemptions would be Section 401(a) to provide benefits that of these exemptions. counted by the Exchange in determining exceed the limits set forth in Internal whether the transaction involved the Employment Inducement Awards Revenue Code Section 402(g) (the issuance of 20% or more of the section that limits an employee’s annual An employment inducement award is company’s outstanding common stock pre-tax contributions to a 401(k) plan), a grant of options or other equity-based and thus required shareholder approval Internal Revenue Code Section compensation as a material inducement under Listed Company Manual Section 401(a)(17) (the section that limits the to a person or persons being hired by 312.03(c). the listed company or any of its These merger-related exemptions will 21 26 U.S.C. 401(a) (1988). subsidiaries, or being rehired following not result in any increase in the 22 26 U.S.C. 423 (1988). a bona fide period of interruption of aggregate potential dilution of the 23 29 U.S.C. 1002 (1999).
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amount of an employee’s compensation only for a limited transition period, make related conforming changes to that can be taken into account for plan defined below. NASD Rules 4310(c)(17)(A) and purposes) and/or Internal Revenue Code The limited transition period 4320(e)(15)(A). Section 415 (the section that limits the described in the preceding two Nasdaq Amendments No. 2 and 3 to contributions and benefits under paragraphs will end upon the first to the Nasdaq filing proposes a number of qualified plans) and/or any successor or occur of: changes to the rules as they were similar limitations that may hereafter be • the listed company’s next annual published in the Notice of the Nasdaq enacted. A plan will not be considered meeting at which directors are elected Proposal. According to Nasdaq, these a parallel excess plan unless (1) it that occurs more than 180 days after the changes were made in response to the covers all or substantially all employees effective date of this listing standard; comment letters and discussions with of an employer who are participants in • the first anniversary of the effective Commission staff. The Nasdaq proposal, the related qualified plan whose annual date of this listing standard; and as amended by Nasdaq Amendments compensation is in excess of the limit of • the expiration of the plan. No. 2 and 3, is described below. Code Section 401(a)(17) (or any A shareholder-approved formula plan may continue to be used after the end 1. Nasdaq Proposal Amended by Nasdaq successor or similar limits that may Amendments No. 2 and 3 hereafter be enacted); (2) its terms are of this transition period if it is amended substantially the same as the qualified to provide for a term of ten years or less Specifically, Nasdaq proposes to plan that it parallels except for the from the date of its original adoption or, eliminate the exception for broadly- elimination of the limits described in if later, the date of its most recent based plans, and also proposes to the preceding sentence and the shareholder approval. Such an eliminate the de minimis exception to limitation described in clause (3); and amendment may be made before or after NASD Rule 4350(i)(1)(A), which allows (3) no participant receives employer the effective date of this listing for the grant of the lesser of 1% of the equity contributions under the plan in standard, and would not itself be number of shares of common stock or excess of 25% of the participant’s cash considered a ‘‘material revision’’ 25,000 shares, without shareholder compensation. requiring shareholder approval. approval. Nasdaq believes that this In addition, a formula plan may exception is not in accord with the Transition Rules continue to be used, without concept of restricting the use of Except as provided below, a plan that shareholder approval, if the grants after unapproved options. was adopted before the date of the the effective date of this listing standard Nasdaq proposes to retain its current Securities and Exchange Commission are made only from the shares available exception for warrants or rights offered order approving this listing standard immediately before the effective date, in generally to all shareholders. In Nasdaq will not be subject to shareholder other words, based on formulaic Amendment No. 3, Nasdaq proposed an approval under this section unless and increases that occurred prior to such amendment to this exception to exclude until it is materially revised. effective date. stock purchase plans available on equal In the case of a discretionary plan (as terms to all security holders of the defined in ‘‘Material Revisions’’ above), Broker Voting company (such as a dividend whether or not previously approved by In addition, the Exchange will reinvestment plan) from shareholder shareholders, additional grants may be preclude its member organizations from approval. In addition, the Nasdaq made after the effective date of this giving a proxy to vote on equity- proposal would not require shareholder listing standard without further compensation plans unless the approval for tax qualified, non- shareholder approval only for a limited beneficial owner of the shares has given discriminatory benefit plans as these transition period, defined below, and voting instructions. This is codified in plans are regulated under the Internal then only in a manner consistent with NYSE Rule 452. Amended Rule 452 will Revenue Code and Treasury Department past practice. See also ‘‘Material be effective for any meeting of regulations. Along with tax qualified, Revisions’’ above. In applying this rule, shareholders that occurs on or after the non-discriminatory employee benefit if a plan can be separated into a 90th day following the date of the plans, the Nasdaq proposal also discretionary plan portion and a portion Securities and Exchange Commission provides an exception for parallel that is not discretionary, the non- order approving the rule change. nonqualified plans. Nasdaq represents discretionary portion of the plan can The NYSE will establish a working that the proposed amendments to NASD continue to be used separately, under group to advise with respect to the need Rule 4350(i) would not have any effect the appropriate transition rule. For for, and design of, mechanisms to on any shareholder approval or other example, if a shareholder-approved plan facilitate implementation of the requirements under the Internal permits both grants pursuant to a proposal that brokers may not vote on Revenue Code or other applicable laws provision that makes available a specific equity-compensation plans presented to or requirements for such plans. number of shares, and grants pursuant shareholders without instructions from Furthermore, Nasdaq proposes to to a provision authorizing the use of the beneficial owners. This will not retain its current exception for treasury shares without regard to the delay the effectiveness of the broker- inducement grants to new employees specific share limit, the former may-not-vote proposal. because Nasdaq believes that, in these provision (but not the latter) may cases, a company has an arm’s length continue to be used after the transition B. Nasdaq Proposal relationship with the new employees, period, under the general rule above. Nasdaq proposes to amend NASD and its interests are directly aligned Similarly, in the case of a formula Rule 4350(i) to require shareholder with the shareholders. In Nasdaq plan (as defined in ‘‘Material Revisions’’ approval for stock option plans or other Amendment No. 3, Nasdaq amended its above) that either (1) has not previously equity compensation arrangements proposal to apply this exception to been approved by shareholders or (2) (subject to exceptions specified in the persons previously employed by the does not have a term of ten years or less, rule), adopt ‘‘Interpretative Material’’ issuer following a bona fide period of additional grants may be made after the pertaining to shareholder approval for non-employment. In addition, Nasdaq effective date of this listing standard stock option plans or other equity states that, for these purposes, without further shareholder approval compensation arrangements, and to inducement grants would include grants
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of options or stock to new employees in The Nasdaq proposal further clarifies an exception to the shareholder connection with a merger or acquisition. that material amendments to plans approval requirements of NASD Rule In addition, the proposed would require shareholder approval. 4350(i)(1)(A). amendments to NASD Rule 4350(i) The accompanying proposed Lastly, Nasdaq proposes to make would clarify that plans involving a ‘‘Interpretative Material’’ also provides a conforming changes to NASD Rules merger or acquisition would not require non-exclusive list of plan amendments 4310(c)(17)(A) and 4320(e)(15)(A). shareholder approval in two situations. that are considered material, and These proposed changes will require First, Nasdaq will not require clarifies that while general authority to issuers to notify Nasdaq on the shareholder approval to convert, replace amend a plan would not obviate the appropriate form no later than 15 or adjust outstanding options or other need for shareholder approval, if a plan calendar days prior to establishing or equity compensation awards to reflect permits a specific action without further materially amending a stock option the transaction. Second, Nasdaq shareholder approval, then no such plan, purchase plan or other equity represents that shares available under approval would be required.24 Certain compensation arrangement pursuant to certain plans acquired in corporate provisions in a plan, however, cannot be which stock may be acquired by acquisitions and mergers may be used amended without shareholder approval. officers, directors, employees, or for certain post-transaction grants For example, plans that contains a consultants without shareholder without further shareholder approval. formula for automatic increases in the approval. Nasdaq clarifies that this exception shares available or for automatic grants 2. Amended NASD Rule 4350(i) and applies to situations where the target/ pursuant to a dollar-based formula IM–4350–5 acquired company, which is no longer cannot have a term in excess of ten a listed company following the years unless shareholder approval is As amended by Nasdaq Amendments transaction, has shares available for obtained every ten years. In addition, No. 2 and 3, NASD Rule 4350(i)(1)(A) grant under its pre-existing plans that plans that impose no limit on the and proposed new ‘‘Interpretive were previously approved by its number of shares available for grant Material,’’ IM–4320–5, will read as shareholders. Nasdaq represents that would require shareholder approval of follows: these shares may be used for post- each grant under the plan. A (i) Shareholder Approval transaction grants of options and other requirement that grants be made out of (1) Each issuer shall require equity awards by the acquiring/listed treasury shares or repurchased shares shareholder approval prior to the company (after appropriate adjustment will not alleviate these additional issuance of designated securities under of the number of shares to reflect the shareholder approval requirements. The subparagraph (A), (B), (C), or (D) below: transaction), either under the pre- proposed ‘‘Interpretative Material’’ also (A) when a stock option or purchase existing plan or another plan, without provides that as a general matter, when plan is to be established or materially further shareholder approval, so long as: preparing plans and presenting them for amended or other equity compensation (1) The time during which those shares shareholder approval, issuers should arrangement made or materially are available for grants is not extended strive to make plan terms easy to amended pursuant to which options or beyond the period when they would understand. In that regard, Nasdaq stock may be acquired by officers, have been available under the pre- recommends that plans meant to permit directors, employees, or consultants, existing plan, absent the transaction, repricing use explicit terminology to except for: (i) warrants or rights issued generally and (2) such options and other awards make this clear. are only granted to individuals who With respect to implementation of the to all security holders of the company were employed by the target/acquired proposed amendments to NASD Rule or stock purchase plans available on company at the time the merger or 4350(i), Nasdaq proposes that amended equal terms to all security holders of the acquisition was consummated. Nasdaq NASD Rule 4350(i) become effective company (such as a dividend would view a plan adopted in upon SEC approval, and that existing reinvestment plan); or (ii) tax qualified, non-discriminatory contemplation of the merger or plans be grandfathered.25 Nasdaq employee benefit plans (e.g., plans that acquisition transaction as not pre- represents that any material meet the requirements of Section 401(a) existing for purposes of this exception. modification to plans in place or or 423 of the Internal Revenue Code) or Nasdaq believes that this exception is adopted after the effective date of NASD parallel nonqualified plans, provided appropriate because it believes that it Rule 4350(i) would require shareholder such plans are approved by the issuer’s will not result in any increase in the approval. aggregate potential dilution of the Separately, Nasdaq represents that compensation committee or a majority combined enterprise. Nasdaq staff intends to consider further of the issuer’s independent directors; or Nasdaq states that, under the changes to provide greater transparency plans that merely provide a convenient proposed amendments to the NASD to investors, including a possible way to purchase shares on the open Rule 4350(i), inducement grants, tax disclosure requirement with respect to market or from the issuer at fair market qualified, non-discriminatory benefit situations where an issuer relies upon value; or plans, and parallel nonqualified plans (iii) plans or arrangements relating to are subject to approval by either the an acquisition or merger as permitted 24 The Commission notes that if a plan permits a issuer’s compensation committee, or a specific action without further shareholder under IM–4350–5; or majority of the issuer’s independent approval, it must be clear and specific enough to (iv) issuances to a person not directors. Nasdaq also notes that a provide meaningful shareholder approval of those previously an employee or director of company would not be permitted to use provisions. the company, or following a bonafide 25 The Commission notes that the Nasdaq repurchased shares to fund options proposal does not address broker-dealer period of non-employment, as an without prior shareholder approval. discretionary voting because NASD rules currently inducement material to the individual’s Nasdaq represents, however, that plans prohibit discretionary voting by broker-dealers entering into employment with the that merely provide a convenient way to without explicit instructions from the beneficial company, provided such issuances are owner. In addition, the Commission notes that the purchase shares on the open market or Nasdaq proposal does not eliminate the ‘‘treasury approved by either the issuer’s from the issuer at fair market value share exception’’ because Nasdaq does not have compensation committee comprised of a would not require shareholder approval. such an exception under current NASD rules. majority of independent directors or a
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majority of the issuer’s independent the number of shares available for grant equity compensation awards to reflect directors. would require shareholder approval of the transaction. Second, shares available * * * * * each grant under the plan. A under certain plans acquired in requirement that grants be made out of acquisitions and mergers may be used IM–4350–5. Shareholder Approval for treasury shares or repurchased shares for certain post-transaction grants Stock Option Plans or Other Equity will not alleviate these additional without further shareholder approval. Compensation Arrangements shareholder approval requirements. This exception applies to situations Employee ownership of company As a general matter, when preparing where the party which is not a listed stock can be an effective tool to align plans and presenting them for company following the transaction has employee interests with those of other shareholder approval, issuers should shares available for grant under pre- shareholders. Stock option plans or strive to make plan terms easy to existing plans that meet the other equity compensation understand. In that regard, it is requirements of this Rule 4350(i)(1)(A). arrangements can also assist in the recommended that plans meant to These shares may be used for post- recruitment and retention of employees, permit repricing use explicit transaction grants of options and other which is especially critical to young, terminology to make this clear. equity awards by the listed company growing companies, or companies with Rule 4350(i)(1)(A) provides an (after appropriate adjustment of the insufficient cash resources to attract and exception to the requirement for number of shares to reflect the retain highly qualified employees. shareholder approval for warrants or transaction), either under the pre- However, these plans can potentially rights offered generally to all existing plan or arrangement or another dilute shareholder interests. As such, shareholders. In addition, an exception plan or arrangement, without further Rule 4350(i)(1)(A) ensures that is provided for tax qualified, non- shareholder approval, provided: (1) The shareholders have a voice in these discriminatory employee benefit plans time during which those shares are 26 situations, given this potential for as well as parallel nonqualified plans available for grants is not extended dilution. as these plans are regulated under the beyond the period when they would Rule 4350(i)(1)(A) requires Internal Revenue Code and Treasury have been available under the pre- shareholder approval when a plan or Department regulations. existing plan, absent the transaction, Further, there is an exception for other equity compensation arrangement and (2) such options and other awards inducement grants to new employees is established or materially amended. are not granted to individuals who were because in these cases a company has an For these purposes, a material employed by the granting company or arm’s length relationship with the new amendment would include, but not be its subsidiaries at the time the merger or employees. Inducement grants for these limited to, the following: acquisition was consummated. Nasdaq purposes include grants of options or (1) Any material increase in the would view a plan or arrangement stock to new employees in connection number of shares to be issued under the adopted in contemplation of the merger with a merger or acquisition. The rule plan (other than to reflect a or acquisition transaction as not pre- reorganization, stock split, merger, requires that such issuances must be existing for purposes of this exception. spinoff or similar transaction); approved by the issuer’s compensation This exception is appropriate because it (2) Any material increase in benefits committee or a majority of the issuer’s to participants, including any material independent directors. will not result in any increase in the change to: (i) permit a repricing (or In addition, plans or arrangements aggregate potential dilution of the decrease in exercise price) of involving a merger or acquisition do not combined enterprise. In this regard, any outstanding options, (ii) reduce the require shareholder approval in two additional shares available for issuance price at which shares or options to situations. First, shareholder approval under a plan or arrangement acquired in purchase shares may be offered, or (iii) will not be required to convert, replace a connection with a merger or extend the duration of a plan; or adjust outstanding options or other acquisition would be counted by (3) Any material expansion of the Nasdaq in determining whether the class of participants eligible to 26 The term ‘‘parallel nonqualified plan’’ means a transaction involved the issuance of participate in the plan; and plan that is a ‘‘pension plan’’ within the meaning 20% or more of the company’s of the Employee Retirement Income Security Act outstanding common stock, thus (4) Any expansion in the types of (‘‘ERISA’’), 29 U.S.C. 1002 (1999), that is designed options or awards provided under the to work in parallel with a plan intended to be triggering the shareholder approval plan. qualified under Internal Revenue Code Section requirements under Rule 4350(i)(1)(C). While general authority to amend a 401(a), to provide benefits that exceed the limits set Inducement grants, tax qualified non- forth in Internal Revenue Code Section 402(g) (the discriminatory benefit plans, and plan would not obviate the need for section that limits an employee’s annual pre-tax shareholder approval, if a plan permits contributions to a 401(k) plan), Internal Revenue parallel nonqualified plans are subject a specific action without further Code Section 401(a)(17) (the section that limits the to approval by either the issuer’s shareholder approval, then no such amount of an employee’s compensation that can be compensation committee comprised of a taken into account for plan purposes) and/or majority of independent directors, or a approval would generally be required. Internal Revenue Code Section 415 (the section that However, if a plan contains a formula limits the contributions and benefits under majority of the issuer’s independent for automatic increases in the shares qualified plans) and/or any successor or similar directors. It should also be noted that a available (sometimes called an limitations that may thereafter be enacted. company would not be permitted to use However, a plan will not be considered a parallel ‘‘evergreen formula’’), or for automatic nonqualified plan unless: (i) It covers all or repurchased shares to fund option plans grants pursuant to a dollar-based substantially all employees of an employer who are or grants without prior shareholder formula (such as annual grants based on participants in the related qualified plan whose approval. a certain dollar value, or matching annual compensation is in excess of the limit of Code Section 401(a)(17) (or any successor or similar III. Summary of Comments contributions based upon the amount of limitation that may hereafter be enacted); (ii) its compensation the participant elects to terms are substantially the same as the qualified The Commission received a total of 32 defer), such plans cannot have a term in plan that it parallels except for the elimination of comment letters on the NYSE and the limitations described in the preceding sentence; Nasdaq proposals.27 Sixteen comment excess of ten years unless shareholder and, (iii) no participant receives employer equity approval is obtained every ten years. contributions under the plan in excess of 25% of However, plans that impose no limit on the participant’s cash compensation. 27 See supra notes 5 and 9.
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letters generally supported the commenters opposed this provision.36 that there should not be an exception for proposals requiring shareholder Eleven of these commenters, supporting inducement awards from shareholder approval of all equity compensation the elimination of broker voting on approval, but noted that companies plans based on the general premise that equity compensation plans, suggested should anticipate the hiring of new these proposals would improve precluding broker-dealers from voting executives and have a ‘‘cushion of corporate governance standards overall proxies without instructions on all other shares available for awards under and would help restore investor matters as well.37 In addition, several existing shareholder-approved plans.’’ 44 confidence in the marketplace.28 commenters also supported the NYSE This commenter was concerned that an Several other commenters were proposed rule change that would exception for inducement awards would supportive of certain aspects of the eliminate the ‘‘treasury share provide an incentive for management to proposals, but expressed concerns about exception.’’ 38 move between companies to take some or all of the exceptions in the A. Exceptions to Shareholder Approval advantage of the exception in obtaining proposed rules.29 Five comment letters 45 of Equity Compensation Plans larger option awards. Another commented only on specific aspects of commenter suggested that the exception the NYSE and Nasdaq proposals.30 Four Several commenters, while agreeing should also be made available to comment letters stated that there should with the general concept of shareholder individuals who are rehired by an issuer be a collective bargaining agreement approval for all equity compensation or one of its subsidiaries after a bona exception.31 Another comment letter plans, had concerns with various fide interruption of employment.’’ 46 supported shareholder approval solely exceptions for the general One commenter suggested that Nasdaq 39 for plans including senior executives requirement and some believed that conform its proposal to the NYSE 32 and directors. One comment letter the exceptions should be removed from proposal and permit the issuance of 40 stated that companies’ compensation the proposed rules. inducement awards to persons who practices should not be micro-managed 1. Exception for Inducements Grants were previously employees of or served and that shareholder approval should be on the board of directors of the issuer.47 required only for plans that ‘‘dilute Several commenters were critical of (shareholder) ownership over a certain the exception from the shareholder 2. Exception for Mergers and threshold (e.g., 1% to 2%) or on plans approval requirement for inducement Acquisitions where a potential for self dealing exists options offered in an arms-length (e.g., for top management and transaction.41 One commenter, who Several commenters were generally directors).’’ 33 One comment letter found commented separately on the NYSE and critical of the exception from the the proposals to be too complicated and Nasdaq proposals, stated that this shareholder approval requirement for stated that ‘‘the better solution may be exception could have the effect of plans acquired in an acquisition or 48 to eliminate stock options from a encouraging the use of inducement merger. These commenters company’s source of funds for grants simply to avoid having to acquire specifically opposed the exception for employees.’’ 34 shareholder approval to issue shares, shares available to employees of the Thirteen comment letters supported and that this exception should therefore acquired or targeted company, stating the NYSE proposed rule change to be limited.42 Another commenter stated that such additional issuances could be preclude broker-dealers from casting that such an exception invites dilutive to the shareholders of the proxy votes on equity compensation companies to offer huge one-time acquiring company. Two commenters plans without instructions from the awards of options to incoming suggested that this exception could have beneficial owner,35 while three executives.43 One commenter, stated ‘‘the unintended consequence of making the availability of shares authorized 28 See TIAA-CREF Letter; Barclays Letter; Allen & NASD rules already prohibit broker-dealer under assumed plans dependent on the Overy Letter; SWIB Letter; Hermes Letter; ICI Letter; discretionary voting on such matters. See supra transaction structure.’’ 49 Another NJ Division Letter; ISS I Letter; ISS II Letter; NVCA note . I Letter; NVCA II Letter; LACERA Letter; conEdison 36 See ABC Letter; Pella Letter; Amex I Letter; and commenter argued that the exception Letter; Unisys Letter; Employees Retirement System Amex II Letter. The Commission considers the could allow management to ‘‘use a of Texas Letter; and Gillespie Letter. As discussed Amex I Letter and Amex II Letter to be from the merger or acquisition to ‘adopt’ a plan below, some of these commenters, while supporting same commenter. that otherwise would not be approved the overall proposals, recommended eliminating or 37 See CII Letter; SWIB Letter; Hermes Letter; by their shareholders.’’ 50 changing some of the exceptions to shareholder AFL-CIO Letter; CPF Letter; STRS Letter; NJ approval or requested clarification. Division Letter; ISS I Letter; IBT Letter; MSRS 29 See CII Letter; SWIB Letter; CPF Letter; IBT Letter; and Employees Retirement System of Texas 44 See CalPERS Letter. Two other commenters Letter; STRS Letter; MSRS Letter; and Employees Letter. recommended that companies plan in advance for Retirement System of Texas Letter. 38 See CII Letter; Barclays Letter; SWIB Letter; these situations and set aside shares of stock for this 30 See CalPERS Letter; Sullivan & Cromwell Hermes Letter; CPF Letter; STRS Letter; NJ Division specific purpose with shareholder approval. See Letter; ABA Letter; Radioshack Letter; and ABC Letter; Unisys Letter; and Employees Retirement IBT Letter and Employees Retirement System of Letter. System of Texas Letter. Texas Letter. 31 See Southwest Airlines Letter; IAM Letter; 39 See CII Letter; Barclays Letter; SWIB Letter; 45 See CalPERS Letter. AFL-CIO Letter; and IBT Letter. For example, see Hermes Letter; AFL–CIO Letter; CPF Letter; STRS 46 See Allen & Overy Letter. This commenter Southwest Airlines Letter, stating that the NYSE Letter; LACERA Letter; Unisys Letter; and stated that Nasdaq should be also permit shareholder approval proposal is overly broad as Employees Retirement System of Texas Letter. inducement grants to an independent director who currently drafted and that it would be ‘‘unwise’’ 40 See Barclays Letter; SWIB Letter; Hermes is hired as an employee of an issuer or one of its and ‘‘unfair’’ to approve unless a collective Letter; and LACERA Letter. subsidiaries. bargaining exception is added to the exceptions. 41 See CII Letter; Barclays Letter; SWIB Letter; 47 See ABA Letter. 32 See AFL–CIO Letter. Hermes Letter; CalPERS Letter; STRS Letter; NJ 48 See CII Letter; Barclays Letter; SWIB Letter; 33 See Employees Retirement System of Texas Division Letter; ISS I Letter; ISS II Letter; Unisys AFL-CIO Letter; CalPERS Letter; STRS Letter; NJ Letter. Letter; and Employees Retirement System of Texas Division Letter; ISS I Letter; ISS II Letter; Unisys 34 See Pella Letter. Letter. Letter; and Employees Retirement System of Texas 35 See TIAA–CREF Letter; CII Letter; Barclays 42 See ISS I Letter and ISS II Letter. Letter. Letter; SWIB Letter; Hermes Letter; AFL-CIO Letter; 43 See Hermes Letter. See also AFL-CIO Letter, 49 See Allen & Overy Letter and NJ Division CPF Letter; STRS Letter; NJ Division Letter; ISS I which refers to inducement grants as ‘‘golden Letter. Letter; IBT letter; MSRS Letter; and Employees handshake’’ compensation packages for newly 50 See Employees Retirement System of Texas Retirement System of Texas Letter. As noted above, recruited executives. Letter.
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3. Exception for Tax Qualified and to an equity compensation plan.59 One shareholder approval should not be Parallel Nonqualified Plans commenter stated that Nasdaq should required for plans that are silent on adopt the NYSE’s list of what is repricing.68 Another commenter Several commenters were generally considered a ‘‘material revision.’’ 60 suggested that repricing should only be critical of the exception from the Another commenter suggested that the considered a ‘‘material revision’’ of a shareholder approval requirement for NYSE follow Nasdaq’s approach by plan for newly adopted plans or for tax qualified and parallel nonqualified defining ‘‘materiality’’ ‘‘by reference to plans that were materially revised after plans.51 These commenters stated that 61 former Rule 16b-3 under the Act.’’ the effective date of the NYSE shareholder oversight was necessary for One commenter suggested adopting a proposal.69 tax qualified and parallel non-qualified ‘‘global standard’’ and providing a plans. In addition, commenters noted ‘‘transparent definition of materiality’’ 6. Foreign Exemption that the exception for parallel to ensure that issues regarding nonqualified plans may result in a materiality are handled similarly by the Two commenters suggested that the potential for abuse because participants NYSE and Nasdaq.62 Another exemption for plans covering employees in these plans could defer up to 100 commenter, while supporting a uniform residing in non-U.S. jurisdictions percent of their compensation into stock definition, objected to the use of should also apply to plans that are if the plan allowed such deferrals before ‘‘materiality,’’ stating that the concept is designed to comply with local foreign the application of tax limits.52 too vague and subjective.63 Another tax laws and under which all full-time Commenters further noted that parallel commenter suggested that the definition employees of the sponsoring entity are, nonqualified plans are structured solely of ‘‘material’’ should be more specific to in general, eligible to participate subject to benefit highly compensated ensure that companies have a practical to certain service, age or other employees and, therefore, should be and enforceable standard that they can requirements permitted under the subject to shareholder approval.53 One apply.64 One commenter, separately foreign jurisdiction’s law.70 Both commenter stated that ‘‘the fact that commenting on both of the NYSE and commenters stated that Nasdaq should such plans are expensed is not a valid Nasdaq proposals, suggested that, adopt a similar exemption.71 One reason to exempt them from the because it is difficult to determine what commenter stated that a transition shareholder approval process.’’ 54 Two types of changes qualify as material, the period should be provided for plans of commenters stated that the definition of Commission should require the NYSE listed domestic issuers and their parallel nonqualified plan should be and Nasdaq to separately publish, on a affiliates covering employees residing in website in real time, determinations of similar to the definition of ‘‘excess a non-U.S. jurisdiction.72 benefit plan’’ under Rule 16b-3 of the all their staff determinations on requests Act.55 Another commenter stated that for exemptions from the their rules and B. Collective Bargaining Agreements requiring non-parallel plans to be listing standards.65 One commenter substantially similar to tax qualified stated that the definition of ‘‘material Four commenters suggested that there plans is too narrow and restrictive a revision’’ of an equity compensation be an exception for the shareholder standard.56 One commenter suggested plan should be clarified so as not to requirement for equity compensation the use of ‘‘stock purchase plans’’ as include any decreases in any benefits plans for plans entered into pursuant to defined in Rule 16b-3(b)(5) under the under the plan, and thereby subject only a collective bargaining agreement.73 Act, stating that this definition should material increases, to any benefits under Two of the commenters limited this replace the reference to Section 423 a plan, to shareholder approval.66 suggestion to collective bargaining 57 agreements that do not permit plans under this exception. One 5. Repricing of Plans commenter suggested that the exception participation by officers and directors.74 for tax qualified and parallel Several commenters suggested that Three of the commenters argued that nonqualified plans should be extended Nasdaq should address the issue of proposed rules are overly-broad, would to cover employee stock option repricing, and that it should adopt the significantly impact the collective purchase plans that would qualify as NYSE’s approach for such repricing bargaining process, and provide noncompensatory plans under APB provisions in equity compensation disincentives for parties on both sides of 67 Opinion 25 of the Financial Accounting plans. Under the NYSE proposal, the bargaining table to negotiate equity Standards Board.58 unless a plan explicitly contains a compensation plans.75 One commenter repricing provision, shareholder stated that a shareholder approval 4. Material Revisions to Plans approval would be required for any requirement would deny employees, revisions deleting or limiting the who have given up pay raises for a Several commenters suggested that repricing provisions; a plan that is silent number of years over the term of the the NYSE and Nasdaq define ‘‘material’’ on repricing would also require for purposes of defining major changes shareholder approval in these instances. collective bargaining agreement in order One commenter, commenting solely on to receive stock options, the opportunity 51 See CII Letter; Barclays Letter; SWIB Letter; the NYSE proposal, stated that to participate fully in the growth and CalPERS Letter; STRS Letter; ISS I Letter; ISS II success of their companies.76 Letter; Unisys Letter; and Employees Retirement System of Texas Letter. 59 See CII Letter; STRS Letter; Sullivan & 52 See CII Letter; AFL–CIO Letter; CalPERS Letter; Cromwell Letter; ABA Letter; and Unisys Letter. 68 See Sullivan & Cromwell Letter. STRS Letter; and Unisys Letter. 60 See ISS II Letter. 69 See ABA Letter. 53 See CII Letter; SWIB Letter; CalPERS Letter; 61 See Sullivan & Cromwell Letter. 70 See Allen & Overy Letter and ABA Letter. STRS Letter; and Unisys Letter. 62 See AFL–CIO Letter. 71 See Allen & Overy Letter and ABA Letter. 54 See Employees Retirement System of Texas 63 See CalPERS Letter. 72 See ABA Letter. Letter. 64 See IBT Letter. 73 See Southwest Airlines Letter; IAM Letter; 55 See Sullivan & Cromwell Letter and ABA 65 See ISS I Letter and ISS II Letter. AFL–CIO Letter; and IBT Letter. Letter. 66 See RadioShack Letter. 74 See Southwest Airlines Letter and IBT Letter. 56 See RadioShack Letter. 67 See CII Letter; SWIB Letter; Hermes Letter; ICI 75 See Southwest Airlines Letter; IAM Letter and 57 See ABA Letter. Letter; CalPERS Letter; STRS Letter; NJ Division AFL–CIO Letter. 58 See Allen & Overy Letter. Letter; and Unisys Letter. 76 See Southwest Airlines Letter.
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C. Evergreen Plans D. Conformity and Clarity commenters pointed out that, because companies now routinely receive votes One commenter stated that ‘‘evergreen A few commenters stated that the NYSE and Nasdaq proposals should be from more than 50 percent of their plans’’ can be dilutive to shareholders 86 beneficial owners, broker-dealer votes because ‘‘there can be no termination consistent with one another. One commenter recommended specific are no longer necessary to meet quorum date for the plans and the number of 95 changes to clarify and conform the requirements. One commenter stated shares issued can increase annually 87 that ‘‘this rule is unnecessary in an age depending on the number of shares NYSE and Nasdaq proposals. Another commenter suggested that the NYSE and where shareholders can vote outstanding.’’ 77 The commenter urged electronically by telephone, Internet, the NYSE and Nasdaq to view increases Nasdaq clarify the proposed rules to indicate that cash-only plans and and facsimile, in addition to the in the shares available under an traditional means of written proxy or evergreen plan to be a material revision benefits would not be subject to shareholder approval.88 One commenter participation in shareholder requiring shareholder approval.78 One meetings.’’ 96 One commenter stated that commenter, commenting solely on the stated that the NYSE and Nasdaq should harmonize their proposals on the the NYSE should specify when the NYSE proposal, requested clarification proposed new rule eliminating broker on whether, for evergreen plans, the 10- ‘‘repricing’’ issue; the commenter did not take a position on which approach voting of equity compensation plans year maximum term for the plan runs will become effective and stated that a it believed was more appropriate.89 The from the effective date of the proposed transition period should be provided.97 same commenter suggested that ‘‘the rule, the date of the addition of the 10- Three commenters opposed the NYSE year term, or the date of the original NYSE proposal, like the Nasdaq proposal to eliminate broker-dealer adoption or shareholder approval of the proposal, should specify the significant proxy voting on equity compensation plan.79 Two commenters stated that a and substantive components of its plans.98 Two of these commenters stated (proposed) rule in the rule’s text’’ rather transition period—not requiring 90 that the elimination of broker voting shareholder approval until the next than in a commentary or footnotes. would harm smaller issuers and result annual shareholder meeting—should One commenter praised the NYSE and in a significant increase in cost and apply to existing evergreen plans.80 One Nasdaq for proposing similar rules administrative burden.99 In addition, commenter stated that there should be requiring shareholder approval of equity one commenter stated that elimination a ‘‘specific transition period for plans compensation plans, stating that this of broker-dealer voting on equity adopted before the effective date that do ‘‘coordinated approach ensures that the compensation plans, and thereby not limit the number of shares available NYSE and Nasdaq do not compete on designating such plans as ‘‘non-routine’’ for grant, since these plans will never be the basis of differences in their rules, for proxy voting purposes, would result required to be amended to increase the encouraging a ‘‘race to the bottom’’ to in uncertainty of whether there will be 81 attract new listings, to the detriment of a quorum and, instead suggested as an number of authorized share.’’ Another 91 commenter suggested that evergreen investors.’’ alternative that unvoted broker held increases should not be considered E. Elimination of Broker-Dealer Voting shares be deemed voted in proportion to ‘‘material revisions’’ until the earliest of: on Equity Compensation Plans the votes actually cast (i.e., ‘‘echo’’ voting).100 (1) A subsequent material revision to the Several commenters also supported The commenter further plan; (2) the expiration of the term of the NYSE proposed rule change to stated that, while the issue of broker- the plan; (3) the later of ten years from preclude broker-dealers from voting on dealer voting should be addresses on an the date the plan was adopted or five equity compensation plans without industry-wide basis, it wanted years from the effective date of the instructions from the beneficial clarification that the NYSE’s elimination 82 of broker-dealer voting on equity NYSE proposal. The same commenter owner.92 Some of these commenters compensation plans only applied to recommended that Nasdaq conform its stated that broker-dealers should be NYSE listed issuers ‘‘ and not to Amex proposal to the NYSE proposal with precluded from voting proxies without listed issuers ‘‘ in case of a conflict in respect to provisions on the treatment of instructions on all other matters as 83 proxy voting rules of the two evergreen plans. One commenter well.93 Some of these commenters stated exchanges.101 stated that a ‘‘retroactive shareholder that votes should be cast by the One commenter stated approval requirement’’ should not be beneficial owners—the real parties in that the average beneficial owner would applied to existing evergreen plans.84 not understand or know how to vote on interest—and not broker-dealers who 102 Another commenter requested tend to side with management and his or her own. clarification on whether an evergreen override their clients’ interests.94 Other F. Miscellaneous Comments plan that was previously approved by a A few commenters suggested that the company’s shareholders must again be 86 See AFL–CIO Letter; Allen & Overy Letter; ICI approved by the shareholders if it is for Letter; and ABA Letter. Commission urge the American Stock an unlimited term and has been in 87 See ABA Letter. existence for more than ten years.85 88 See Allen & Overy Letter. Letter; ISS I Letter; IBT Letter; MSRS Letter; and 89 See ABA Letter. Employees Retirement System of Texas Letter. 95 90 See ABA Letter. See CII Letter; SWIB Letter; CPF Letter; STRS 77 See ICI Letter. Letter; IBT Letter; and MSRS Letter. One 91 See ICI Letter. 78 See ICI Letter. commenter stated that, if uninstructed broker-dealer 92 See TIAA–CREF Letter; CII Letter; Barclays 79 See Sullivan & Cromwell Letter. votes are needed to meet a quorum, broker voting Letter; SWIB Letter; Hermes Letter; AFL–CIO Letter; 80 See Sullivan & Cromwell Letter and conEdsion should be limited solely to quorum votes. See ISS CPF Letter; STRS Letter; NJ Division Letter; ISS I I Letter. Letter. Letter; IBT letter; MSRS Letter; and Employees 81 96 See AFL–CIO Letter. See Allen & Overy Letter. Retirement System of Texas Letter. 82 97 See ABA Letter. See ABA Letter. 93 See CII Letter; SWIB Letter; Hermes Letter; 98 83 See ABA Letter. AFL–CIO Letter; CPF Letter; STRS Letter; NJ See ABC Letter; Pella Letter; Amex I Letter; and 84 See RadioShack Letter. Division Letter; ISS I Letter; IBT Letter; MSRS Amex II Letter. 99 85 See Unisys Letter. This commenter suggested a Letter; and Employees Retirement System of Texas See ABC Letter and Amex I Letter. transition period until the next annual shareholder Letter. 100 See Amex I Letter. meeting to obtain shareholder approval if it is 94 See TIAA–CREF Letter; CII Letter; SWIB Letter; 101 See Amex I Letter and Amex II Letter. required in these circumstances. Hermes Letter; AFL-CIO Letter; CPF Letter; STRS 102 See Pella Letter.
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Exchange, LLC (‘‘Amex’’) to propose IV. Discussion shareholders, while placing certain and adopt listing standards similar to After careful review, the Commission restrictions on their listed companies. the NYSE and Nasdaq proposals.103 One finds that the NYSE proposal, as The Commission notes that many commenter, commenting solely on the amended, is consistent with the Act and commenters generally supported the NYSE proposal, stated that the the rules and regulations promulgated NYSE and Nasdaq’s proposals to require shareholder approval requirement thereunder applicable to a national shareholder approval of all equity should apply only to companies listing securities exchange and, in particular, compensation plans mainly based on common stock on the NYSE.104 The with the requirements of section 6(b) of the premise that such a requirement same commenter stated that NYSE the Act.113 Specifically, the Commission would protect shareholders and overall should state that the requirement of finds that approval of the NYSE improve the marketplace. The shareholder approval would not apply proposal, as amended, is consistent with Commission further notes that several to ‘‘cash-only’’ plans and other plans section 6(b)(5) of the Act 114 in that it is commenters, while supporting the where securities are not deliverable.105 designed to, among other things, general shareholder approval The commenter also stated that plans facilitate transactions in securities; to requirement, voiced concerns regarding adopted after the effective date of the prevent fraudulent and manipulative certain or all of the exemptions to, and certain aspects of, the shareholder proposed rule but before the company’s acts and practices; to promote just and approval requirement. Accordingly, the stock is listed on the NYSE should also equitable principles of trade; to remove NYSE and Nasdaq amended their be grandfathered.’’ 106 The commenter impediments to and perfect the proposals to: (1) Respond to specific further stated that compensation mechanism of a free and open market concerns raised by the commenters and committee pre-approval of certain and a national market system; and in general, to protect investors and the suggestions made by Commission staff; exceptions to shareholder approval, public interest, and does not permit (2) clarify terms and language used in such as for inducement grants and tax unfair discrimination among issuers. their respective proposals; and (3) qualified plans, is unnecessary and In addition, after careful review, the harmonize and conform their respective 107 impractical. One commenter stated Commission finds that the Nasdaq rule proposals, in response to certain that NYSE should define ‘‘equity proposal, as amended, is consistent with comments, so that they are more compensation plan.’’ 108 The same the requirements of the Act and the consistent with one another. commenter stated that the NYSE should rules and regulations thereunder A. Exemption From Shareholder specify when the proposed amendments applicable to a national securities Approval for Inducement Grants to the NYSE Rule 452 eliminating association.115 The Commission finds broker voting on plans would become that the Nasdaq proposal, as amended, The Commission notes that several effective and suggested that there be a is consistent with provisions of section commenters were critical of the transition period.109 One commenter, 15A of the Act,116 in general, and with exemption from shareholder approval commenting solely on the NYSE section 15A(b)(6) of the Act,117 in for inducement grants that could be proposal, stated that there should be an particular, in that it is designed to, made to recruit new employees. These implementation period for obtaining among other things, facilitate commenters were generally concerned shareholder approval for plans that are transactions in securities; to prevent that the exemption could potentially not pre-existing plans that will become fraudulent and manipulative acts and lead to abuse and could be used to avoid ‘‘grandfathered’’ upon approval of the practices; to promote just and equitable shareholder approval. The commenters NYSE proposal.110 One commenter principles of trade; to remove suggested either eliminating or limiting stated that ‘‘compensatory discount impediments to and perfect the the exemption for inducement grants. stock purchase plans’’ should not be mechanism of a free and open market The Commission believes that the subject to shareholder approval because and a national market system; and in requirement that the issuance of all this requirement would unduly restrict general, to protect investors and the inducement grants be subject to review the management’s design of long- public interest, and does not permit by either the issuer’s independent standing compensation plans for a broad unfair discrimination among issuers. compensation committee or a majority base of employees, while providing The Commission has long encouraged of the board’s independent directors, in exchanges to adopt and strengthen their minimal benefit to shareholders.111 both proposals, should prevent abuse of corporate governance listing standards Some commenters stated that the 21-day this exemption. The Commission notes in order to, among other things, restore comment period was inadequate to that the NYSE has also amended its investor confidence in the national obtain public comment on these and proposal to include a requirement that, marketplace. The Commission believes other proposals.112 following the grant of any inducement that the NYSE proposal and the Nasdaq award, companies must disclose in a proposal, which require shareholder 103 press release the material terms of the See CII Letter; SWIB Letter; STRS Letter; NJ approval of equity compensation plans, Division Letter; and Unisys Letter. In response to award, including the recipient(s) of the a Commission request, the Amex filed a proposed are the first step under this directive award and the number of shares rule change on May 6, 2003, which proposes to because they should have the effect of involved.118 In addition, the require shareholder approval of stock option and safeguarding the interests of equity compensation plans. See File No. SR–Amex– 2003–42. 118 This disclosure would, of course, be in 113 15 U.S.C. 78f(b). In approving the NYSE 104 See Sullivan & Cromwell Letter. addition to any information that is required to be proposal, the Commission has considered the 105 disclosed in annual reports filed with the See Sullivan & Cromwell Letter. proposed rule’s impact on efficiency, competition 106 Commission. For example, Item 201(d) of See Sullivan & Cromwell Letter. and capital formation. 15 U.S.C. 78c(f). Regulation S–K (17 CFR 229.201(d)) and Item 107 See Sullivan & Cromwell Letter. 114 15 U.S.C. 78f(b)(5). 201(d) of Regulation S–B (17 CFR 228.201(d)) 108 See ABA Letter. 115 In approving the Nasdaq proposal, the require issuers to present—in their annual reports 109 See ABA Letter. Commission has considered the proposed rule’s on Form 10–K or Form 10–KSB—separate, tabular 110 See conEdison Letter. impact on efficiency, competition, and capital disclosure concerning equity compensation plans 111 See RadioShack Letter. formation. 15 U.S.C. 78c(f). that have been approved by shareholders and equity 112 See CII Letter; CPF Letter; CalPERS Letter; 116 15 U.S.C. 78o–3. compensation plans that have not been approved by STRS Letter; IBT Letter; and MSRS Letter. 117 15 U.S.C. 78o–3(b)(6). shareholders.
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Commission notes that the NYSE NYSE and Nasdaq exemptions contain proposing to add an additional proposes an additional requirement that safeguards that should prevent abuse in limitation under this exemption that a an issuer must notify it in writing when this area. First, only pre-existing plans plan would not be considered a it uses this exemption from the that were previously approved by the nonqualified parallel under the Nasdaq shareholder approval requirement. acquired company’s shareholders would proposal or parallel excess plan under Nasdaq has also committed to be available to the listed company for the NYSE proposal if employees who considering similar disclosure post-transactional grants. In addition, are participants in such plans receive requirements. The Commission believes shares under those previously approved employer contributions under the plans that such disclosure requirements plans could not be granted to in excess of 25% of the participants’ would provide transparency to investors individuals who were employed, cash contributions. The Commission and reduce the potential for abuse of immediately before the transaction, by further notes that the NYSE proposes an this exemption for inducement the post-transaction listed company or additional requirement that an issuer grants.119 its subsidiaries. The Commission also must notify it in writing when it uses In addition, one commenter pointed notes that, under both the NYSE and this exemption from the shareholder out an inconsistency between the NYSE Nasdaq proposals, any shares reserved approval requirement. The Commission and Nasdaq proposals—that the for listing in connection with a merger believes that, taken together, these exemption for inducement grants as or acquisition pursuant to this limitations should reduce concerns proposed in the Notice of the Nasdaq exemption would be counted by the regarding abuse of this exemption. NYSE and Nasdaq in determining Proposal would exclude grants to D. Material Amendments to Plans previous employees and directors of the whether the transaction involved the company, while the exemption for issuance of 20% or more of the The Commission notes that several inducement grants as proposed in the company’s outstanding common stock, commenters urged the NYSE and Notice of the NYSE Proposal would thereby requiring shareholder approval Nasdaq to adopt a similar definition for allow grants to all new employees. In under the appropriate NYSE and what constitutes a material amendment response to these concerns, the NYSE Nasdaq rules. Finally, the Commission or revision to a plan requiring and Nasdaq clarified their respective notes that the NYSE proposes an shareholder approval. Specifically, exemptions for inducement grants and additional requirement that an issuer these commenters stated that the NYSE limited the exemptions to new must notify it in writing when it uses and Nasdaq should adopt a more employees or to previous employees this exemption from the shareholder uniform and enforceable definition. One being rehired after a bona fide period of approval requirement. Based on the commenter suggested that material interruption of employment, and to new above, the Commission believes that the revisions to plans should only include employees in connection with an NYSE and Nasdaq have provided any increases in benefits, not decreases acquisition or merger. The Commission measures to ensure that the exemption in benefits, under a plan. In response to these concerns, the believes that these amendments to the for mergers and acquisitions is only NYSE and Nasdaq have proposed exemption for inducement grants in the used in limited circumstances, which amendments to their respective NYSE and Nasdaq proposals are should help reduce the potential for proposals and provided similar consistent with the original intent of the dilution of shareholder interests. definitions of a material amendment or exemption. The language requiring a C. Exemption From Shareholder revision. A material amendment or bone fide period of interruption of Approval for Tax Qualified and Parallel revision under both proposals would employment for previous employees Nonqualified Plans now basically include: A material should help to prevent the inducement Several commenters were critical of increase in the number of shares to be exemption from being used the exemption from shareholder issued under the plan (other than to inappropriately. Furthermore, the approval for tax qualified and parallel reflect a reorganization, stock split, proposed changes should address the nonqualified plans 120 and stated that merger, spinoff or similar transaction); commenters’ concerns about these plans should be subject to an expansion of the type of awards consistency between the NYSE and shareholder approval. Many of these available under the plan; a material Nasdaq proposals. commenters were concerned that these expansion of the class of participants B. Exemption From Shareholder types of plans are structured in a way eligible to participate in the plan; a Approval for Mergers and Acquisitions to benefit only highly compensated material extension of the term of the The Commission notes that several employees and that participants in such plan; a material change to limit or delete commenters objected to an exemption plans could defer up to 100% of their any provisions prohibiting repricing of from shareholder approval for plans compensation in stock under these options in a plan or for determining the acquired in a merger or acquisition. plans. strike or exercise price of options under The Commission believes that, given These commenters stated that additional a plan. In addition, the NYSE amended the extensive government regulation— issuances under plans to shareholders of its proposal under ‘‘Material Revisions’’ the Internal Revenue Code and Treasury the acquired or targeted company could to define ‘‘evergreen’’ and ‘‘formula’’ regulations—for qualified plans and the be dilutive to shareholders of the plans and introduced the new concept general limitations associated with of ‘‘discretionary plan.’’ The NYSE acquiring company. The commenters parallel nonqualified plans, were also concerned that companies further described what would constitute shareholders should not experience a material revision to such plans and could use a merger or acquisition to significant dilution as a result of this acquire a plan that would otherwise not require shareholder approval. Nasdaq exemption. In addition, the Commission also amended its proposal to clarify be approved by their shareholders. notes that NYSE and Nasdaq are While the Commission understands when plans containing a formula for these concerns, it notes that both the automatic increases (such as evergreen 120 The Commission notes that the NYSE has plans) and automatic grants would replaced the term ‘‘parallel nonqualified plan’’ in 119 The Commission urges Nasdaq to consider its proposal with the term ‘‘parallel excess plan.’’ require shareholder approval. adopting a disclosure requirement similar to the Nasdaq has retained the term ‘‘parallel nonqualified The Commission believes that the NYSE’s requirement. plan’’ to describe such plans. NYSE and Nasdaq’s non-exclusive lists
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of what would constitute a material F. Evergreen or Formula Plans and more clarity and transparency to issuers amendment or revision to a plan Discretionary Plans as to when shareholder approval would provides companies with clarity and A minority of commenters raised be required for such plans. guidance for when certain amendments concerns about plans containing The Commission further notes that to plans would require shareholder evergreen formulas, which would allow the NYSE has proposed amendments to its proposal to provide for a transition approval. The Commission also believes for automatic increases in the number of period for evergreen/formula plans and that the NYSE and Nasdaq proposed shares available or for automatic grants discretionary plans. The limited amendments in this area should help to pursuant to a formula in the plans. transition period would end on the first ensure that the concept of material These commenters were generally to occur of the following: (1) The listed amendments or revisions between their concerned about evergreen/formula company’s next annual meeting at plans that provided no termination date respective proposals is consistent with which directors are elected that occurs and that did not place a limit on the each other so that differences between more than 180 days after the date of the number of shares that could be issued. the markets cannot be abused. effective date of the NYSE proposal; (2) The commenters wanted the NYSE and E. Repricing of Plans the first anniversary of the effective date Nasdaq to consider increases in the of the NYSE proposal; or (3) the A minority of commenters suggested number of shares under such plans as expiration of the plan. The Commission material revisions to the plans requiring that Nasdaq should address the issue of believes that the NYSE’s proposed shareholder approval. In addition, some the repricing of options in plans and transition period for evergreen/formula of these commenters suggested that the and discretionary plans should provide adopt the NYSE’s approach to this issue. NYSE and Nasdaq provide a transition The NYSE proposal provides that, if a companies with additional clarity and period for existing evergreen/formula guidance as to when shareholder plan explicitly contains a repricing plans to comply with the new provision, shareholder approval would approval would be required for such shareholder approval requirements. plans while in the transition period, and be required to delete or limit the Some commenters wanted more clarity repricing provisions. In addition, the should provide companies with more as to when shareholder approval would time to comply with the new NYSE NYSE proposal provides that, if a plan be required for evergreen/formula plans shareholder approval requirements for is silent on repricing, it will be that were adopted prior to the effective evergreen/formula type plans. The considered as prohibiting repricing and date of the NYSE and Nasdaq proposals, Commission believes that this period is shareholder approval would be required and one commenter suggested that not so long as to permit abuse of the to permit repricing under the plan. In Nasdaq adopt NYSE’s approach to shareholder approval requirement, and response to the commenters’ concerns evergreen/formula plans. at most, will last one year from the date on this issue, Nasdaq proposed The Commission notes that both the of this Commission approval order. amendments to its proposal to state that NYSE and Nasdaq have proposed it would be considered a material amendments to the respective proposals G. Miscellaneous Concerns amendment to a plan requiring in response to commenters’ concerns Some commenters had suggested that shareholder approval if the plan was and are proposing similar approaches as there should be an exemption from amended to permit repricing. In to the treatment of evergreen/formula shareholder approval for plans entered addition, Nasdaq recommended in its plans. More specifically, under both the into pursuant to a collective bargaining proposed amendments that plans meant NYSE and Nasdaq proposals, if a plan agreement mainly because they believed to permit repricing should explicitly contains a formula for automatic that a shareholder approval requirement increases in the shares available or for and clearly state that repricing is would hinder negotiations regarding automatic grants pursuant to a formula, permitted. The NYSE proposed an equity compensation plans by both each increase or grant will require parties in the collective bargaining amendment to its proposal to clarify shareholder approval unless the plan process. The Commission believes, that repricings that have commenced has a term of not more than ten years. however, that such an exemption could prior to the date of effectiveness of its In addition, under both the NYSE and expose shareholders to significant proposal would not be subject to Nasdaq proposals, if a plan contains no dilution because of the lack of shareholder approval, provided that limit on the number of shares available shareholders oversight in the collective- such repricing does not require and is not a formula plan (the NYSE bargaining process. Accordingly, the shareholder approval under the NYSE’s amended its proposal to refer to such Commission agrees with the NYSE and existing shareholder approval rules. plans as ‘‘discretionary plans’’), then Nasdaq decisions not to provide such an The NYSE and Nasdaq proposals, as each grant under the plan will require exemption to their respective amended, should benefit shareholders separate shareholder approval. shareholder approval requirements. by ensuring that companies cannot do a Furthermore, both the NYSE and The Commission notes that repricing of options, which can have a Nasdaq proposals provide that a commenters requested clarification as to dilutive effect on shares, without requirement that grants be made out of what type of plans would be considered explicit shareholder approval of such treasury or repurchased shares will not ‘‘equity compensation plans’’ and what type of plans would not be considered provisions and their terms. The alleviate the need for shareholder ‘‘equity compensation plans.’’ In Commission also believes that NYSE approval for additional grants. The Commission believes that these response to commenters’’ concerns, the and Nasdaq proposals now provide provisions should help to ensure that NYSE proposed amendments to its similar views in the area of repricing certain terms of a plan cannot be drafted proposal to better define ‘‘equity and should offer companies clarity and so broad as to avoid shareholder compensation plans’’ and clarified that guidance as to when a change in a plan scrutiny and approval. The Commission such plans would expressly exclude regarding the repricing of options would also notes that the NYSE and Nasdaq’s plans that do not provide delivery of trigger a shareholder approval conforming rules relating to the equity securities of the issuer—for requirement and addresses commenters’ treatment of evergreen/formula and example, ‘‘cash plans’’—and deferred concerns in this area. discretionary plans should provide compensation plans under which
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employees pay full market value for The Commission further notes that that would make the new rule deferred shares. The Commission notes three commenters opposed the eliminating broker voting on equity that Nasdaq also amended its proposal elimination of broker voting on equity compensation plans applicable only to to incorporate the term ‘‘equity compensation plans, stating that such shareholder meetings that occur on or compensation’’ and proposes to adopt a elimination would harm smaller issuers after the 90th day from the effective date similar concept as the NYSE as to this and provide uncertainty as to whether of the NYSE proposal. there will be a quorum at the next term so that plans that merely provide I. Summary a convenient way to purchase shares in meeting. These commenters suggested the open market or from the issuer at that the NYSE consider an alternative to Overall, the Commission believes that fair market price would not require the elimination of broker voting— the proposed amendments to the NYSE shareholder approval. The Commission ‘‘mirror’’ or ‘‘echo’’ voting—where and Nasdaq proposals should alleviate believes that the proposed amendments unvoted shares held by a broker-dealer many of the concerns raised by the should make the NYSE and Nasdaq would be deemed as being voted commenters and should provide for proposals more consistent and provide proportionally to votes that were more clear and uniform standards for greater clarity with respect to which actually cast. One commenter requested shareholder approval of equity plans would and would not require clarification that the NYSE’s proposed compensation plans under both NYSE shareholder approval. elimination of broker voting on equity and NASD rules. The Commission notes that, even with the availability of the Finally, many commenters wanted compensation plans would only apply proposed limited exemptions to clarification as to how the new NYSE to NYSE listed issuers and not to Amex shareholder approval under the NYSE and Nasdaq shareholder approval listed issuers. and Nasdaq proposals, shareholder requirements would apply to pre- The Commission believes that the approval under the new standards existing plans. The NYSE and Nasdaq NYSE’s provision precluding broker would be required in more have proposed amendments to their voting on equity compensation plans is consistent with the Act. The circumstances than under existing proposals to clarify the applicability and Commission notes that equity NYSE and NASD rules. The transition period for their shareholder compensation plans have become an Commission further notes that the NYSE approval requirements. In particular, the important issue for shareholders. proposes to add a requirement that an NYSE and Nasdaq have provided that Because of the potential for dilution issuer must notify it in writing when it pre-existing plans, which were adopted from such issuances, shareholders uses one of the exemptions from the prior to the SEC’s approval of the NYSE should be making the determination shareholder approval requirements and and Nasdaq proposals, would rather than brokers on their behalf. The that Nasdaq has committed to essentially be ‘‘grandfathered’’ and Commission further notes that, considering such a requirement. The would not require shareholder approval generally under NYSE rules, only Commission believes that this unless the plans were materially revised matters that are considered routine are disclosure requirement should reduce or amended. The NYSE provides further allowed to be voted on by a broker on the potential for abuse of any of the clarification that shareholder approval behalf of a beneficial owner. Because of exemptions.121 In addition, the NYSE’s is required for pre-existing plans that the recent significance and concern proposed amendment to NYSE Rule were not approved by shareholders and about equity compensation plans, the 452, which would preclude broker- that do not have an evergreen formula Commission believes that it is dealers from voting on equity or a specific number of shares available appropriate for the NYSE to decide that compensation plans without explicit under the plan. The Commission shareholder approval of equity instructions from the beneficial owner, believes that this clarification should compensation plans is not a routine is consistent with the standard under provide companies with guidance as to matter and must be voted on by the current NASD rules. which plans would be subject to the beneficial owner. As noted above, The Commission notes that the NYSE new NYSE and Nasdaq shareholder NASD rules do not provide for broker and Nasdaq proposals, while not approval requirements. voting on any matters, so the NYSE’s identical, set a consistent, minimum H. Elimination of Broker-Dealer Voting rule is now consistent for equity standard for shareholder approval of on Equity Compensation Plans compensation plans. The Commission equity compensation plans. These has considered the impact on smaller proposals should help to ensure that The Commission notes that several issuers, such as those listed on Nasdaq companies will not make listing commenters supported the NYSE’s and the Amex, in response to the decisions simply to avoid shareholder proposed rule change to prohibit broker- comments on this issue. The approval requirements for equity dealers from voting proxies on equity Commission believes that the benefit of compensation plans. As noted above, compensation plans without the ensuring that the votes reflect the views many of the commentators expressed beneficial owner’s explicit consent. of beneficial shareholders on equity concerns over the differences between These commenters urged the NYSE to compensation plans outweighs the the proposals, as well as over issues of adopt a prohibition for broker voting potential difficulties in obtaining the scope and clarity. The Commission without instructions on all matters, not vote. believes the proposed amendments have just with respect to equity compensation The Commission notes that, in its addressed these concerns. Thus, the plans. Some of these commenters were original filing, the NYSE committed to Commission believes that the NYSE and concerned that broker-dealers tend to establishing a working group to advise Nasdaq proposals should provide side with management and do not on how to facilitate the implementation shareholders with greater protection always vote in their client’s best of this new rule prohibiting brokers from the potential dilutive effect of interest. One commenter requested from voting on equity compensation equity compensation plans. Based on clarification on the effective date for plans without voting instructions from the above, the Commission finds that eliminating broker voting on equity the beneficial owner of the shares. The the NYSE and Nasdaq proposals should compensation plans and suggested that Commission also notes that the NYSE, help to protect investors, are in the the NYSE consider a transition period in response to a commenter’s concerns, for the effective of the new rule. has implemented a transition period 121 See also supra note 118.
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public interest, and do not unfairly Amendments No. 1 and 2 and Nasdaq section 15A(b)(6) of the Act,128 discriminate among issuers, consistent Amendments No. 2 and 3 is appropriate. respectively. with sections 6(b) and 15A(b) of the The Commission also notes that the It is therefore ordered, pursuant to Act.122 The Commission therefore finds amendments provide further section 19(b)(2) of the Act,129 that the the proposals, as amended, to be clarification to portions of the NYSE proposed rule changes, SR–NYSE– consistent with the Act and the rules and Nasdaq proposals that have already 2002–46 and SR–NASD–2002–140, and and regulations thereunder. been noticed for comment and do not Nasdaq Amendment No. 1 are approved, and that NYSE Amendments No. 1 and V. Accelerated Approval of NYSE separately raise any new regulatory issues. Based on the above, the 2 and Nasdaq Amendments No. 2 and Amendments No. 1 and 2 and Nasdaq 3 are approved on an accelerated basis. Amendments No. 2 and 3 Commission finds, consistent with sections 6(b)(5),124 15A(b)(6),125 and For the Commission, by the Division of The Commission finds good cause for 19(b) 126 of the Act, that good cause Market Regulation, pursuant to delegated approving NYSE Amendments No. 1 exists to accelerate approval of NYSE authority.130 and 2 and Nasdaq Amendments No. 2 Amendments No. 1 and 2 and Nasdaq Jill M. Peterson, and 3 to the NYSE and Nasdaq proposed Amendments No. 2 and 3. Assistant Secretary. rule changes prior to the thirtieth day [FR Doc. 03–16883 Filed 7–2–03; 8:45 am] after the amendments are published for VI. Solicitation of Comments comment in the Federal Register BILLING CODE 8010–01–P Interested persons are invited to pursuant to section 19(b)(2) of the Act.123 NYSE Amendment No. 1 submit written data, views, and arguments concerning NYSE SECURITIES AND EXCHANGE proposes technical corrections to the COMMISSION proposed rule language of the NYSE Amendments No. 1 and 2 and Nasdaq proposal. NYSE Amendment No. 2 Amendments No. 2 and 3 to the NYSE [Release No. 34–48100; File No. SR–PCX– proposes changes to the NYSE proposal and Nasdaq proposed rule changes, 2003–23] based on discussions with Commission including whether NYSE Amendments Self-Regulatory Organizations; Notice staff and in response to the comment No. 1 and 2 and Nasdaq Amendments of Filing and Immediate Effectiveness letters. As discussed more fully above, No. 2 and 3 are consistent with the Act. of Proposed Rule Change by the NYSE Amendment No. 2, among other Persons making written submissions Pacific Exchange, Inc. and Amendment things, does the following: (1) Clarifies should file six copies thereof with the No. 1 Thereto To Reduce Archipelago the terms ‘‘equity compensation plan,’’ Secretary, Securities and Exchange Exchange Facility Fees and Charges ‘‘material revision,’’ and ‘‘repricing’’; (2) Commission, 450 Fifth Street, NW., for the Execution and Routing of Odd- defines ‘‘evergreen,’’ ‘‘formula’’ and Washington, DC 20549–0609. Copies of Lot Orders and To Clarify the ‘‘discretionary’’ plans; and (3) provides the submission, all subsequent Application of Market Data Revenue new transition rules. Nasdaq amendments, all written statements Sharing Credit Amendment No. 3, which replaces with respect to the proposed rule Nasdaq Amendment No. 2 in its change that are filed with the June 26, 2003. entirety, also does the following: (1) Commission, and all written Pursuant to section 19(b)(1) of the States that the Nasdaq Board of communications relating to the Securities Exchange Act of 1934 Directors approved the Nasdaq proposed rule change between the (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 proposed rule changes for filing with Commission and any person, other than notice is hereby given that on May 30, the Commission; and (2) proposes those that may be withheld from the 2003, the Pacific Exchange, Inc. (‘‘PCX’’ clarifying and conforming changes to public in accordance with the or ‘‘Exchange’’) submitted to the the Nasdaq proposal based on provisions of 5 U.S.C. 552, will be Securities and Exchange Commission recommendations from Commission available for inspection and copying in (‘‘Commission’’) the proposed rule staff and in response to the comment the Commission’s Public Reference change as described in Items I, II, and letters. As discussed more fully above, Room. Copies of such filing will also be III below, which Items have been Nasdaq Amendment No. 3, among other available for inspection and copying at prepared by the PCX. On June 26, 2003, things, also clarifies the term ‘‘material the principal offices of the NYSE and the PCX filed Amendment No. 1 to the amendment,’’ proposes an exception to Nasdaq. All submissions should refer to proposed rule change.3 The Commission shareholder approval for plans that File No. SR–NYSE–2002–46 and SR– is publishing this notice to solicit provide a way to purchase shares on the NASD–2002–140 and should be comments on the proposed rule change open market or from the issuer at fair submitted by July 24, 2003. from interested persons. market value, and discusses evergreen VII. Conclusion I. Self-Regulatory Organization’s plans and repricings. The Commission believes that the For the foregoing reasons, the Statement of the Terms of Substance of the Proposed Rule Change proposed changes in NYSE Commission finds that the proposed Amendments No. 1 and 2 and Nasdaq rule changes, SR–NYSE–2002–46 and The PCX, through its wholly-owned Amendments No. 2 and 3 not only SR–NASD–2002–140, as amended, are subsidiary PCX Equities, Inc. (‘‘PCXE’’), address many concerns raised in the consistent with the Act and the rules comment letters, but are necessary to and regulations thereunder applicable to 128 15 U.S.C. 78o–3(6). 129 15 U.S.C. 78s(b)(2). the conformity and proper application a national securities exchange and a 130 of the NYSE and Nasdaq listing 17 CFR 200.30–3(a)(12). national securities association, 1 15 U.S.C. 78s(b)(1). standards relating to shareholder respectively, and, in particular, with 2 17 CFR 240.19b–4. approval of equity compensation plans. section 6(b)(5) of the Act 127 and with 3 In Amendment No. 1, the PCX made a technical The Commission therefore believes that correction to the proposal, the substance of which has been incorporated into this notice. See letter accelerated approval of NYSE 124 15 U.S.C. 78f(b)(5). from Peter D. Bloom, Acting Managing Director, 125 15 U.S.C. 78o–3(b)(6). Regulatory Policy, PCX to Tim Fox, Attorney, 122 15 U.S.C. 78f(b)(5) and 15 U.S.C. 78o–3(b)(6). 126 15 U.S.C. 78s(b). Division of Market Regulation, Commission, dated 123 15 U.S.C. 78s(b)(2). 127 15 U.S.C. 78f(b)(5). June 25, 2003.
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proposes to amend its fee schedule for securities and determined that is was B. Self-Regulatory Organization’s services provided to ETP Holders 4 and feasible, given the costs involved. Statement on Burden on Competition 5 Sponsored Participants that use the The PCX also proposes to reduce the The PCX does not believe that the Archipelago Exchange (‘‘ArcaEx’’) by: per share transaction fee for odd-lot proposed rule change will impose any (1) Reducing the per-share odd-lot orders in Nasdaq securities that are burden on competition that is not transaction fee for Nasdaq securities; 6 routed away and executed by another necessary or appropriate in furtherance (2) reducing the per-share odd-lot market center or participant. The PCX of the purposes of the Act. routing service fee for Nasdaq securities; and (3) clarifying the application of the proposes to reduce the routing service C. Self-Regulatory Organization’s market data revenue credit for Tracking fee from $0.03 to $0.004 per share to Statement on Comments on the Orders. conform to the proposed fee of $0.004 Proposed Rule Change Received From The text of the proposed rule change per share that will apply to odd-lot Members, Participants, or Others orders executed on ArcaEx.8 Again, for is available at the principal offices of the PCX neither solicited nor received PCX and at the Commission. competitive reasons, the PCX will leave written comments concerning the unchanged its current odd-lot routing proposed rule change. II. Self-Regulatory Organization’s service fee for listed securities. Statement of the Purpose of, and III. Date of Effectiveness of the With respect to PCX’s market data Statutory Basis for, the Proposed Rule Proposed Rule Change and Timing for revenue credit for exchange-listed Change Commission Action securities, the PCX proposes to amend In its filing with the Commission, the its fee schedule to clarify the Because the PCX represents that the PCX included statements concerning the application of this credit for Tracking foregoing rule change establishes or purpose of and basis for the proposed Orders.9 Specifically, the PCX is adding changes a due, fee, or other charge rule change and discussed any 10 imposed by the PCX, it has become comments it had received on the a footnote to make it clear that a User who submits a Tracking Order effective pursuant to section proposed rule change. The text of these 19(b)(3)(A)(ii) of the Act 14 and Rule instruction that subsequently matches statements may be examined at the 19b–4(f)(2) thereunder.15 At any time against an inbound marketable order places specified in Item IV below. The within 60 days after the filing of the PCX has prepared summaries, set forth will not be entitled to receive the 11 proposed rule change, the Commission in sections A, B, and C below, of the liquidity provider credit. The PCX may summarily abrogate the rule change most significant aspects of such believes that this change will more if it appears to the Commission that statements. accurately define the liquidity provider such action is necessary or appropriate credit that the Exchange pays to Users A. Self-Regulatory Organization’s in the public interest, for the protection who help promote liquidity, Statement of the Purpose of, and of investors, or otherwise in furtherance transparency and price discovery. 16 Statutory Basis for, the Proposed Rule of the purposes of the Act. Change 2. Statutory Basis IV. Solicitation of Comments 1. Purpose The PCX believes that its proposal to Interested persons are invited to The PCX proposes to reduce the per- amend its schedule of dues, fees and submit written data, views, and share odd-lot transaction fee charged to charges is consistent with section 6(b) of arguments concerning the foregoing, ETP Holders and Sponsored the Act 12 in general, and furthers the including whether the proposed rule Participants (collectively ‘‘Users’’) that objectives of section 6(b)(4) of the Act 13 change is consistent with the Act. Persons making written submissions execute trades on ArcaEx. The PCX in particular, in that it is an equitable should file six copies thereof with the currently charges all Users a transaction allocation of reasonable dues, fees, and Secretary, Securities and Exchange fee of $0.03 per share for odd-lot orders other charges among PCX members. executed in Nasdaq securities on Commission, 450 Fifth Street, NW, 7 Washington, DC 20549–0609. Copies of ArcaEx. The PCX is proposing to 8 The Exchange notes that odd-lot orders that are the submission, all subsequent reduce this odd-lot transaction fee to created as a result of a partial fill of a round lot that $0.004 per share, and will leave are subsequently routed away and executed on amendments, all written statements unchanged its current odd-lot fee for another market will continue to be subject to the with respect to the proposed rule $0.004 per share fee applicable to round lot orders. change that are filed with the listed securities. The rationale for this 9 change is to adjust the odd-lot The Tracking Order Process, which is available Commission, and all written during Core Trading Hours only, is the fourth step communications relating to the transaction fee for Nasdaq securities to of the ArcaEx execution algorithm. Any User may a more competitive level to submit an instruction to ArcaEx for the parameters proposed rule change between the accommodate Users’ interest in sending of a Tracking Order. The parameters include: the Commission and any person, other than odd-lot orders to ArcaEx. ArcaEx maximum aggregate size; the maximum tradeable those that may be withheld from the size; the price in relation to the NBBO; and the evaluated the economics of lowering the relevant security. See PCXE Rule 7.37(c) for a 14 15 U.S.C. 78s(b)(3)(A)(ii). odd-lot transaction fee for Nasdaq detailed description of the Tracking Order Process. 15 17 CFR 240.19b–4(f)(2). 10 The current footnote 2 in the PCX’s fee 16 On July 2, 2002, the Commission issued an 4 schedule relating to the ‘‘Drop Copy’’ Processing See PCXE Rule 1.1(n) (defining ‘‘ETP Holder’’). Order abrogating certain proposed rule changes 5 Fee is being renumbered as footnote 3. A ‘‘Sponsored Participant’’ means ‘‘a person relating to market data revenue sharing programs. 11 which has entered into a sponsorship arrangement Under its market data revenue sharing program, See Securities Exchange Act Release No. 46159 with a Sponsoring ETP Holder pursuant to [PCXE] PCX shares a portion of its gross revenues derived (July 2, 2002), 67 FR 45775 (July 10, 2002) (File Rule 7.29.’’ See PCXE Rule 1.1(tt). from market data fees (i.e., tape revenue) with any Nos. SR–NASD–2002–61, SR–NASD–2002–68, SR– 6 See PCXE Rule 1.1(aa) (defining ‘‘Nasdaq User that provides liquidity by entering a resting CSE–2002–06, and SR–PCX–2002–37) (‘‘Abrogation Security’’). limit order into the ArcaEx Book that is then Order’’). The Commission’s publication of the 7 The PCX notes that the odd-lot portion of a executed against an incoming marketable order instant proposed rule change, which codifies an mixed lot are subject to the $0.03 per share within the Display Order or Working Order existing practice in the Exchange’s market data transaction fee. Also, odd-lot orders that are created processes. revenue sharing program, should not be construed as a result of a partial fill of a round lot on ArcaEx 12 15 U.S.C. 78f(b). as resolving the issues raised in the Abrogation will continue to be excluded from this fee. 13 15 U.S.C. 78f(b)(4). Order.
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public in accordance with the Frequency: On Occasion. FOR FURTHER INFORMATION CONTACT: On provisions of 5 U.S.C. 552, will be Description of Respondents: Disaster general issues: Vann H. Van Diepen, available for inspection and copying at Loan Borrowers. Office of Chemical, Biological and the Commission’s Public Reference Responses: 16,104. Missile Nonproliferation, Bureau of Room. Annual Burden: 12,078. Nonproliferation, Department of State, Copies of such filing also will be (202–647–1142). On U.S. Government Jacqueline White, available for inspection and copying at procurement ban issues: Gladys Gines, the principal office of the PCX. All Chief, Administrative Information Branch. Office of the Procurement Executive, submissions should refer to File No. [FR Doc. 03–16863 Filed 7–2–03; 8:45 am] Department of State, (703–516–1691). SR–PCX–2003–23 and should be BILLING CODE 8025–01–P SUPPLEMENTARY INFORMATION: Pursuant submitted by July 24, 2003. to sections 2 and 3 of the Iran For the Commission, by the Division of SMALL BUSINESS ADMINISTRATION Nonproliferation Act of 2000 (Pub. L. Market Regulation, pursuant to delegated 106–178), the U.S. Government 17 authority. National Small Business Development determined on June 23, 2003, that the Margaret H. McFarland, Center Advisory Board; Public Meeting measures authorized in section 3 of the Deputy Secretary. Act shall apply to the following foreign [FR Doc. 03–16814 Filed 7–2–03; 8:45 am] The U.S. Small Business entities identified in the report Administration National Small Business BILLING CODE 8010–01–P submitted pursuant to section 2(a) of the Development Center Advisory Board Act: will hold a public meeting on Sunday, Taian Foreign Trade General July 20, 2003, from 9 a.m. to 5 p.m. at SMALL BUSINESS ADMINISTRATION Corporation (China) and any successor, the Westin Riverwalk Hotel, San sub-unit, or subsidiary thereof; Reporting and Recordkeeping Antonio, Texas to discuss such matters Zibo Chemical Equipment Plant, aka Requirements Under OMB Review as may be presented by members, staff Chemet Global Ltd., aka South of the U.S. Small Business Industries Science and Technology AGENCY: Small Business Administration. Administration, or others present. For Trading Company, Ltd. (China) and any ACTION: Notice of reporting requirements further information, please write or call successor, sub-unit, or subsidiary submitted for OMB review. Evelyn Y. Prentice, U.S. Small Business thereof; Administration, 409 Third Street, SW., Liyang Yunlong Chemical Equipment SUMMARY: Under the provisions of the Sixth Floor, Washington, DC 20416, Group Company (China) and any Paperwork Reduction Act (44 U.S.C. telephone number (202) 205–6185. successor, sub-unit, or subsidiary Chapter 35), agencies are required to thereof; submit proposed reporting and Candace Stoltz, China North Industries Corporation recordkeeping requirements to OMB for Director, Advisory Councils. (NORINCO) (China) and any successor, review and approval, and to publish a [FR Doc. 03–16809 Filed 7–2–03; 8:45 am] sub-unit, or subsidiary thereof; notice in the Federal Register notifying BILLING CODE 8025–01–M China Precision Machinery Import/ the public that the agency has made Export Corporation (CPMIEC) (China) such a submission. and any successor, sub-unit, or DATES: Submit comments on or before DEPARTMENT OF STATE subsidiary thereof; August 4, 2003. If you intend to Changgwang Sinyong Corporation comment but cannot prepare comments Bureau of Nonproliferation (North Korea) and any successor, sub- promptly, please advise the OMB unit, or subsidiary thereof. [Public Notice 4392] Reviewer and the Agency Clearance Accordingly, pursuant to the Officer before the deadline. provisions of the Act, the following Copies: Request for clearance (OMB Imposition of Nonproliferation Measures Against Chinese and North measures are imposed on these entities: 83–1), supporting statement, and other 1. No department or agency of the documents submitted to OMB for Korean Entities, Including Ban on U.S. Government Procurement United States Government may procure, review may be obtained from the or enter into any contract for the Agency Clearance Officer. AGENCY: Department of State. procurement of, any goods, technology, ADDRESSES: Address all comments ACTION: Notice. or services from these foreign persons; concerning this notice to: Agency 2. No department or agency of the Clearance Officer, Jacqueline White, SUMMARY: A determination has been United States Government may provide Small Business Administration, 409 3rd made that five Chinese and one North any assistance to the foreign persons, Street, SW., 5th Floor, Washington, DC Korean entities have engaged in and these persons shall not be eligible 20416; and OMB Reviewer, Office of activities that require the imposition of to participate in any assistance program Information and Regulatory Affairs, measures pursuant to Section 3 of the of the United States Government; Office of Management and Budget, New Iran Nonproliferation Act of 2000, 3. No United States Government sales Executive Office Building, Washington, which provides for penalties on entities to the foreign persons of any item on the DC 20503. for the transfer to Iran of equipment and United States Munitions List (as in FOR FURTHER INFORMATION CONTACT: technology controlled under effect on August 8, 1995) are permitted, Jacqueline White, Agency Clearance multilateral export control lists (Missile and all sales to these persons of any Officer, (202) 205–7044. Technology Control Regime, Australia defense articles, defense services, or SUPPLEMENTARY INFORMATION: Group, Nuclear Suppliers Group, design and construction services under Title: Borrower’s Progress Wassenaar Arrangement) or otherwise the Arms Export Control Act are Certification. having the potential to make a material terminated; and, No: 1366. contribution to weapons of mass 4. No new individual licenses shall be destruction (WMD) or missiles. granted for the transfer to these foreign 17 17 CFR 200.30–3(a)(12). EFFECTIVE DATE: June 26, 2003. persons of items the export of which is
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controlled under the Export Dated: June 26, 2003. In the combined 2001/2002 Annual Administration Act of 1979 or the Andrew K. Semmel, Review, the GSP Subcommittee of the Export Administration Regulations, and Acting Assistant Secretary of State for Trade Policy Staff Committee reviewed any existing such licenses are Nonproliferation, Department of State. petitions to change the product coverage suspended. [FR Doc. 03–16938 Filed 7–2–03; 8:45 am] of the GSP. The disposition of those These measures shall be implemented BILLING CODE 4710–25–P petitions is described in Annex I of this by the responsible departments and notice. agencies of the United States The disposition of petitions reviewed Government and will remain in place OFFICE OF THE UNITED STATES in the 2001 Special Three Country for two years, except to the extent that TRADE REPRESENTATIVE Review for Argentina, the Philippines, the Secretary of State or Deputy and Turkey is described in Annex II. Secretary of State may subsequently Generalized System of Preferences determine otherwise. A new (GSP); Notice of the Results of the In the 2002 De Minimis Waiver and determination will be made in the event 2002 Annual Product Reviews, 2001 Redesignation Review, the GSP that circumstances change in such a Special Three Country Review, GSP– Subcommittee reviewed the appraised manner as to warrant a change in the AGOA 2001 Review, and Previously import values of each GSP-eligible duration of sanctions. Deferred Product Decisions article in 2002 to determine whether an Section 2(a) of the Iran article from a GSP beneficiary Nonproliferation Act of 2000 requires AGENCY: Office of the United States developing country exceeded one of the twice-yearly reports to Congress Trade Representative. GSP Competitive Need Limitations identifying foreign entities (not ACTION: Notice. (CNLs). De minimis waivers were governments) with respect to whom granted to certain articles which SUMMARY: there is credible information that they exceeded the 50 percent import share This notice announces the disposition have transferred to Iran: (a) Items on CNL, but for which the aggregate value of the product petitions accepted for multilateral export control lists; or (b) review in the combined 2001/2002 GSP of the imports of that article was below items not on any control list, but which Annual Review and the Special Three the 2002 de minimis level of $16 nevertheless would be, if they were U.S. Country GSP Review for Argentina, the million. Annex III to this notice goods, services, or technology, Philippines, and Turkey, the results of contains a list of the articles and prohibited for export to Iran because of the 2002 De Minimis Waiver and countries granted de minimis waivers. their potential to make a material Redesignation Review, the 2002 Certain articles from GSP-eligible contribution to the development of competitive need limitation removals, countries that had previously exceeded missiles or WMD. In previous reports, the 2001 GSP–AGOA (African Growth one of the CNLs, but had fallen below we reported pursuant to Section 2(a) and Opportunity Act) Review, and other the CNLs in 2002 ($105 million and 50 transfers of items not on a multilateral previously deferred product decisions. percent of U.S. imports of the article), list if they were controlled on the were redesignated for GSP eligibility. FOR FURTHER INFORMATION CONTACT: The Commerce Control List for WMD or These articles are listed in Annex IV to GSP Subcommittee, Office of the United missile reasons, on the Nuclear this notice. Regulatory Commission or Department States Trade Representative (USTR), Articles that exceeded one of the GSP of Energy nuclear control lists, or on the 1724 F Street, NW., Room F–220, CNLs in 2002, and that are newly United States Munitions List. Washington, DC 20508. The telephone We now are adding to the items number is (202) 395–6971 and the excluded from GSP eligibility, are listed previously reported, both (1) items of facsimile number is (202) 395–9481. in Annex V to this notice. the same kinds as those on multilateral SUPPLEMENTARY INFORMATION: The GSP The disposition of petitions in the lists, but falling below the control list program provides for the duty-free GSP–AGOA 2001 Canned Pears and parameters (e.g., aluminum powder importation of designated articles when Manganese Metal Review is described in above the Missile Technology Control imported from beneficiary developing Annex VI. Regime’s 0–200 micron size limit), countries. The GSP program is The disposition of a product petition when it is determined they have the authorized by title V of the Trade Act of on which a decision in a previous potential to make a material 1974 (19 U.S.C. 2461, et seq.), as review was deferred is described in contribution to weapons of mass amended (the ‘‘Trade Act’’), and is Annex VII. destruction, or cruise or ballistic missile implemented in accordance with systems; and (2) other items with the Executive Order 11888 of November 24, Steven Falken, potential of making such a material 1975, as modified by subsequent Executive Director GSP, Chairman, GSP contribution, when added through case- Executive Orders and Presidential Subcommittee. by-case decisions. Proclamations. BILLING CODE 3190–01–P
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[FR Doc. 03–16937 Filed 7–2–03; 8:45 am] DEPARTMENT OF TRANSPORTATION SUMMARY: Under this Notice, the FRA BILLING CODE 3190–01–C encourages interested parties to submit Federal Railroad Administration by July 31, 2003, a Statement of Interest in receiving a grant to support a Notice of Funds Availability for the demonstration in daily revenue Next Generation High-Speed Rail commuter or intercity passenger service, Program: Revenue Service during calendar years 2003 and 2004, of Demonstration of Compliant Diesel Diesel Multiple Unit (DMU) self- Multiple Unit (DMU) Self-Propelled propelled passenger rail cars which Passenger Cars comply with all current Federal AGENCY: Federal Railroad passenger car safety standards Administration (FRA), Department of (‘‘Compliant DMU’’). The purpose of the Transportation (DOT). demonstration is to determine the current availability of Compliant DMU ACTION: Notice. technology and the suitability of this
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equipment for regularly scheduled soon as possible. The funds made responsibilities under this program have revenue service in the U.S. The subject available under this grant will be been delegated to the Federal Railroad Compliant DMU must meet all of the available for activities related to Administration. current requirements of 49 CFR part establishing compliance of the DMU Funding: Fiscal Year 2003 Department 238, as amended; compliance via design with existing Federal passenger of Transportation and Related Agencies ‘‘grandfathering’’ is not acceptable for safety standards (49 CFR part 238, as Appropriations Act provides $3,974,000 the purposes of this announcement. amended), for the acquisition of DMUs and directs FRA to award a grant to DATES: The deadline for submissions of through a conventional competitive demonstrate Compliant DMU vehicles. Statements of Interest is the close of procurement process, and for service It is anticipated that the available business, Thursday, July 31, 2003. The facilities necessary for revenue service funding will support one actual deadline for the submission of demonstration. The grantee will be demonstration. Additional funding for applications will be noted in the responsible for all other expenses of the this or related work may be available in solicitation from FRA to prospective demonstration, including the cost of subsequent fiscal years. grantees as a result of the evaluation of passenger facilities and any net Schedule for Demonstration Program: the Statements of Interest. operating expenses. FRA anticipates As directed by the Congress, FRA anticipates beginning demonstration ADDRESSES: Applicants must submit an that no further public notice will be original and six (6) copies to the Federal made with respect to selecting activities in calendar 2003 and Railroad Administration at one of the applicants for this demonstration. continuing them in 2004. It is Purpose: There is substantial interest following addresses: anticipated that evaluation of the Postal address (note correct zip code): in the expanded use of passenger rail demonstration operation will continue Federal Railroad Administration, service to help address congestion in for up to two years beyond the initial Attention: Robert L. Carpenter, Office of other modes of transportation and/or to funding year. FRA anticipates that the Procurement Services (RAD–30), Mail provide for additional alternatives to eligible participant(s) will, where Stop #50, 1120 Vermont Ave., NW., meet current and future mobility needs. necessary, contract or otherwise enter Washington, DC 20590. Transportation planners and decision- into partnerships with developers and FedEx/courier address (note correct makers have expressed an interest in manufacturers of Compliant DMUs to zip code): Federal Railroad alternatives to locomotive hauled trains, accomplish the demonstration. Administration, Attention: Robert L. which are currently the most prevalent Eligible Participants: Any United Carpenter, Office of Procurement form of passenger rail transportation in States public transportation agency or Services (RAD–30), Room # 6126, 1120 areas where electric operation is not combination of such agencies is eligible Vermont Ave., NW., Washington, DC available. Historically, DMUs were to apply for funding under this Notice. 20005. available for this purpose, but none has For state applicants, if the proposed Due to delays caused by enhanced entered service domestically since FRA demonstration territory is in more than screening of mail delivered via the U.S. issued the Passenger Equipment Safety one state, a single state agency should Postal Service, applicants are Standards Final Rule on May 12, 1999. apply on behalf of all of the encouraged to use other means to assure Indeed, no DMUs had been built new in participating states. timely receipt of materials. the U.S. for decades before the issuance Eligible Technology Demonstrations: of that rule. The purpose of the Eligible projects must demonstrate a FOR FURTHER INFORMATION CONTACT: demonstration is to determine whether Compliant DMU vehicle in daily Steve Sill, Program Manager, Office of the current state of railroad technology revenue passenger service. Railroad Development (RDV–11), development offers the availability, in Requirements for Statements of Federal Railroad Administration, 1120 the very near term, of a DMU self- Interest: The following points describe Vermont Avenue NW., Washington, DC propelled passenger car that meets minimum content which will be 20590. Phone: (202) 493–6348; Fax: current Federal passenger car safety required in Statements of Interest. Each (202) 493–6330, or Robert Carpenter, standards found at 49 CFR part 238, as Statement of Interest will: Grants Officer, Office of Acquisition and amended. If such technology is 1. Describe the proposed Grants Services (RAD–30), Federal available, the demonstration will demonstration in detail, including the Railroad Administration, 1120 Vermont develop technology-specific cost, location and transportation service to be Avenue NW., Washington, DC 20590. maintenance, reliability and operating provided, the anticipated start date and Phone: (202) 493–6153; Fax: (202) 493– data to help transportation planners and duration of the demonstration, 6171. decision makers determine whether a anticipated schedules, passenger service SUPPLEMENTARY INFORMATION: The Compliant DMU should be considered facilities to be employed, anticipated demonstration will be supported with as an option for rail-based passenger utilization of the up to $3,974,000 of Federal funds transportation. The equipment must demonstration service, and how provided to FRA’s Next Generation meet all of the current requirements of necessary maintenance and support High-Speed Rail Program as part of the 49 CFR part 238, as amended; operations will be conducted. Fiscal Year 2003 Department of compliance via ‘‘grandfathering’’ is not 2. Describe the types of DMU Transportation and Related Agencies acceptable for the purposes of this technology that the public agency is Appropriations Act (included in announcement. considering and how the Compliant Division I of the Consolidated Authority: The authority for the DMU used in the proposed Appropriations Resolution, 2003 (Pub. Program can be found in Title 49, demonstration will be selected. L. 108–7, February 20, 2003)). The United States Code, Section 26102 and 3. Describe the rail line on which the Federal funds must be matched on a in Fiscal Year 2003 Department of proposed demonstration will be dollar-for-dollar basis from non-Federal Transportation and Related Agencies conducted, including any discussions sources. FRA anticipates soliciting a Appropriations Act (included in the public agency has had with the single grant application and awarding a Division I of the Consolidated owner of the rail line in connection with single grant for the demonstration to a Appropriations Resolution, 2003 (Pub. the proposed demonstration. public transportation agency, with the L. 108–7, February 20, 2003)). The 4. Describe the traffic types (including intent of beginning demonstration as Secretary of Transportation’s ownership of trains), volumes, and
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speeds presently involved in operation Compliant DMU technology on the Service, room 6411, 1111 Constitution on the demonstration track segment(s), schedule proposed. Avenue NW., Washington, DC 20224. the planned Compliant DMU 4. The timeliness of the initiation of FOR FURTHER INFORMATION CONTACT: demonstration service volumes and the demonstration and the availability Requests for additional information or speeds, and the estimated potential of the Compliant DMU technology to be copies of the revenue procedure should corridor service volumes and speeds. demonstrated. be directed to Carol Savage at Internal 5. Specify the quantities and 5. The compliance of the technology Revenue Service, room 6407, 1111 ownerships of operating vehicles which with other Federal requirements, Constitution Avenue NW., Washington, are anticipated to be utilized to including the Americans with DC 20224, or at (202) 622–3945, or accomplish the demonstration. Disabilities Act and relevant diesel through the internet at 6. Show how the demonstration emission standards of the U.S. [email protected]. system initially will operate in relation Environmental Protection Agency. SUPPLEMENTARY INFORMATION: to existing service, both passenger and 6. The contribution the demonstration Title: Update of Checklist freight. might have to the development or Questionnaire Regarding Requests for 7. Show the estimated total cost and expansion of the domestic passenger rail Spin-Off Rulings. time for accomplishing each task for car manufacturing industry. 7. The extent to which the OMB Number: 1545–1846. implementing the demonstration, Revenue Procedure Number: Revenue including estimates broken out, at a demonstration will have ongoing transportation benefits after the end of Procedure 2003–48. minimum, into the following categories: Abstract: Revenue Procedure 2003–48 demonstration planning and the scheduled demonstration. 8. The ability of the Compliant DMU updates Revenue Procedure 96–30, installation, Compliant DMU equipment technology to be readily and which sets forth in a checklist acquisition, and operating and economically expanded to respond to questionnaire the information that must maintenance schedules and costs. increased speed, volume, and be included in a request for ruling under Specify sources of proposed funding, complexity of traffic. section 355. This revenue procedure clearly indicating sources for the 9. The extent of non-Federal updates information that taxpayers must required non-Federal dollar-for-dollar contributions to the demonstration. provide in order to receive letter rulings cash match. Issued in Washington, DC, on June 30, under section 355. This information is 8. Specify what organizations will required to determine whether a supply and install key components of 2003. Mark E. Yachmetz, taxpayer would qualify for the demonstration system and, to the nonrecognition treatment. extent available, provide letters of Associate Administrator for Railroad Development. Current Actions: There are no changes commitment supporting the proposed being made to the revenue procedure at [FR Doc. 03–16867 Filed 7–2–03; 8:45 am] activities, schedules, and non-Federal this time. cost sharing. Letters of support from the BILLING CODE 4910–06–P Type of Review: Extension of a railroad whose tracks and facilities are currently approved collection. to be used for the demonstration should Affected Public: Business or other for- be included. DEPARTMENT OF THE TREASURY profit organizations. 9. Discuss the systematic operational Estimated Number of Respondents: Internal Revenue Service recording, monitoring, analysis, and 180. reporting procedures to be followed Proposed Collection; Comment Estimated Time Per Respondent: 200 during the demonstration. Request for Revenue Procedure 2003– hours. 10. Discuss plans for training and 48 Estimated Total Annual Burden familiarization of operating and Hours: 36,000. maintenance personnel for the AGENCY: Internal Revenue Service (IRS), The following paragraph applies to all demonstration system. Treasury. of the collections of information covered Selection Criteria: The following will ACTION: Notice and request for by this notice: be considered to be positive selection comments. An agency may not conduct or factors in evaluating Statements of sponsor, and a person is not required to Interest for this demonstration: SUMMARY: The Department of the respond to, a collection of information 1. The extent to which the Treasury, as part of its continuing effort unless the collection of information demonstration will assist in to reduce paperwork and respondent displays a valid OMB control number. understanding the state-of-the-art in burden, invites the general public and Books or records relating to a Compliant DMU technology in areas of other Federal agencies to take this collection of information must be desired advancement, including safety, opportunity to comment on proposed retained as long as their contents may reliability, efficiency, operational and/or continuing information become material in the administration flexibility, maintainability, capital costs collections, as required by the of any internal revenue law. Generally, and/or operating costs of the corridor Paperwork Reduction Act of 1995, tax returns and tax return information operation, as a whole, as well as of the Public Law 104–13 (44 U.S.C. are confidential, as required by 26 Compliant DMU equipment itself. 3506(c)(2)(A)). Currently, the IRS is U.S.C. 6103. 2. The extent to which the soliciting comments concerning Request for Comments: Comments demonstration will involve an Revenue Procedure 2003–48, Update of submitted in response to this notice will innovative Compliant DMU technology Checklist Questionnaire Regarding be summarized and/or included in the available for commercial development, Requests for Spin-Off Rulings. request for OMB approval. All as opposed to modification of DATES: Written comments should be comments will become a matter of equipment previously in service but received on or before September 2, 2003 public record. Comments are invited on: currently not produced. to be assured of consideration. (a) Whether the collection of 3. The technological risk associated ADDRESSES: Direct all written comments information is necessary for the proper with successfully demonstrating to Glenn P. Kirkland, Internal Revenue performance of the functions of the
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agency, including whether the Title: Form 8871, Political or start-up costs and costs of operation, information shall have practical utility; Organization Notice of Section 527 maintenance, and purchase of services (b) the accuracy of the agency’s estimate Status; Form 8453–X, Political to provide information. of the burden of the collection of Organization Declaration for Electronic Approved: June 27, 2003. information; (c) ways to enhance the Filing of Notice of Section 527 Status. Glenn P. Kirkland, quality, utility, and clarity of the OMB Number: 1545–1693. IRS Reports Clearance Officer. information to be collected; (d) ways to Form Numbers: 8871 and 8453–X. minimize the burden of the collection of Abstract: Public Law 106–230 as [FR Doc. 03–16943 Filed 7–2–03; 8:45 am] information on respondents, including amended by Public Law 107–276, BILLING CODE 4830–01–P through the use of automated collection amended Internal Revenue Code section techniques or other forms of information 527(i) to require certain political DEPARTMENT OF THE TREASURY technology; and (e) estimates of capital organizations to provide information to the IRS regarding their name and or start-up costs and costs of operation, Internal Revenue Service maintenance, and purchase of services address, their purpose, and the names to provide information. and addresses of their officers, highly [REG–246250–96] compensated employees, Board of Approved: June 27, 2003. Directors, and related entities within the Proposed Collection; Comment Glenn P. Kirkland, meaning of section 168(h)(4)). Forms Request For Regulation Project IRS Reports Clearance Officer. 8871 and 8453–X are used to report this AGENCY: Internal Revenue Service (IRS), [FR Doc. 03–16942 Filed 7–2–03; 8:45 am] information to the IRS. Treasury. BILLING CODE 4830–01–P Current Actions: There are no changes ACTION: Notice and request for being made to the form at this time. Type of Review: Extension of a comments. DEPARTMENT OF THE TREASURY currently approved collection. SUMMARY: The Department of the Affected Public: Not-for-profit Internal Revenue Service Treasury, as part of its continuing effort institutions. to reduce paperwork and respondent Estimated Number of Respondents: Proposed Collection; Comment burden, invites the general public and 5,500. Request for Forms 8871 and 8453–X other Federal agencies to take this Estimated Time Per Respondent: 6 opportunity to comment on proposed AGENCY: Internal Revenue Service (IRS), hours, 24 minutes. and/or continuing information Estimated Total Annual Burden Treasury. collections, as required by the Hours: 43,800. ACTION: Notice and request for Paperwork Reduction Act of 1995, The following paragraph applies to all comments. Public Law 104–13 (44 U.S.C. of the collections of information covered 3506(c)(2)(A)). Currently, the IRS is SUMMARY: The Department of the by this notice: An agency may not conduct or soliciting comments concerning an Treasury, as part of its continuing effort existing final regulation, REG–246250– to reduce paperwork and respondent sponsor, and a person is not required to respond to, a collection of information 96 (TD 8818), Public Disclosure of burden, invites the general public and Material Relating to Tax-Exempt other Federal agencies to take this unless the collection of information displays a valid OMB control number. Organizations (§§ 301.6104(d)–3, 301– opportunity to comment on proposed 6104(d)–4, and 301.6104(d)–5). and/or continuing information Books or records relating to a DATES: collections, as required by the collection of information must be Written comments should be Paperwork Reduction Act of 1995, retained as long as their contents may received on or before September 2, 2003 Public Law 104–13 (44 U.S.C. become material in the administration to be assured of consideration. 3506(c)(2)(A)). Currently, the IRS is of any internal revenue law. Generally, ADDRESSES: Direct all written comments soliciting comments concerning Form tax returns and tax return information to Glenn P. Kirkland, Internal Revenue 8871, Political Organization Notice of are confidential, as required by 26 Service, room 6411, 1111 Constitution Section 527 Status; Form 8453-X, U.S.C. 6103. Avenue NW., Washington, DC 20224. Political Organization Declaration for Request for Comments: Comments FOR FURTHER INFORMATION CONTACT: Electronic Filing of Notice of Section submitted in response to this notice will Requests for additional information or 527 Status. be summarized and/or included in the copies of regulation should be directed DATES: Written comments should be request for OMB approval. All to Carol Savage at Internal Revenue received on or before September 2, 2003 comments will become a matter of Service, room 6407, 1111 Constitution to be assured of consideration. public record. Comments are invited on: Avenue NW., Washington, DC 20224, or (a) Whether the collection of at (202) 622–3945, or through the ADDRESSES: Direct all written comments information is necessary for the proper to Glenn P. Kirkland, Internal Revenue internet at [email protected]. performance of the functions of the Service, room 6411, 1111 Constitution SUPPLEMENTARY INFORMATION: Title: agency, including whether the Avenue NW., Washington, DC 20224. Public Disclosure of Material Relating to information shall have practical utility; Tax-Exempt Organizations. FOR FURTHER INFORMATION CONTACT: (b) the accuracy of the agency’s estimate OMB Number: 1545–1560. Requests for additional information or of the burden of the collection of Regulation Project Numbers: REG– copies of the forms and instructions information; (c) ways to enhance the 246250–96. should be directed to Carol Savage at quality, utility, and clarity of the Abstract: Under section 6104(e) of the Internal Revenue Service, room 6407, information to be collected; (d) ways to Internal Revenue Code, certain tax- 1111 Constitution Avenue NW., minimize the burden of the collection of exempt organizations are required to Washington, DC 20224, or at (202) 622– information on respondents, including make their annual information returns 3945, or through the internet at through the use of automated collection and applications tor tax exemption [email protected]. techniques or other forms of information available for public inspection. In SUPPLEMENTARY INFORMATION: technology; and (e) estimates of capital addition, certain tax-exempt
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organizations are required to comply DEPARTMENT OF VETERANS ways to minimize the burden of the with requests made in writing or in AFFAIRS collection of information on person from individuals who seek a respondents, including through the use [OMB Control No. 2900–0636] copy of those documents or, in the of automated collection techniques or alternative, to make their documents Proposed Information Collection the use of other forms of information widely available. This regulation Activity: Proposed Collection; technology. provides guidance concerning these Comment Request Title: Request for Accelerated disclosure requirements. Payment; Certifications Required from AGENCY: Veterans Benefits Current Actions: There is no change to Individuals Electing Accelerated Administration, Department of Veterans this existing regulation. Payments; and Agreement with Affairs. Educational Institution. Type of review: Extension of a ACTION: Notice. OMB Control Number: 2900–0636. currently approved collection. Type of Review: Revision of a SUMMARY: The Veterans Benefits Affected Public: Not-for-profit currently approved collection. Administration (VBA), Department of institutions. Veterans Affairs (VA), is announcing an Abstract: A claimant who wishes to Estimated Number of Respondents: opportunity for public comment on the receive an accelerated payment of 1,100,000. proposed collection of certain educational assistance under the Montgomery GI Bill (MGIB) must elect Estimated Time Per Respondent: 30 information by the agency. Under the to do so. VA uses the request to support minutes. Paperwork Reduction Act (PRA) of the claimant’s election and to determine Estimated Total Annual Burden 1995, Federal agencies are required to publish notice in the Federal Register whether the claimant wants this option Hours: 551,000. concerning each proposed collection of over the established monthly payments. The following paragraph applies to all information, including each proposed The claimant is required to report that of the collections of information covered revision of a currently approved the payment was received and how the by this notice: collection, and allow 60 days for public payment was used. In addition, schools are allowed to receive an advance MGIB An agency may not conduct or comment in response to the notice. This accelerated payment on behalf of a sponsor, and a person is not required to notice solicits comments for information claimant enrolled at that institution. respond to, a collection of information needed to determine a claimant’s Affected Public: Individuals or unless the collection of information election to receive accelerated payment household. displays a valid OMB control number. under the Montgomery GI Bill Program. Estimated Annual Burden: 1,086 Books or records relating to a collection DATES: Written comments and hours. of information must be retained as long recommendations on the proposed a. Request for Accelerated Payment— as their contents may become material collection of information should be 167 hours. in the administration of any internal received on or before September 2, b. Certifications Required from revenue law. Generally, tax returns and 2003. Individuals Electing Accelerated tax return information are confidential, ADDRESSES: Submit written comments Payments—833 hours. as required by 26 U.S.C. 6103. on the collection of information to c. Agreement with Educational Request for Comments: Comments Nancy J. Kessinger, Veterans Benefits Institutions—86 hours. submitted in response to this notice will Administration (20S52), Department of Estimated Average Burden per be summarized and/or included in the Veterans Affairs, 810 Vermont Avenue, Respondent: request for OMB approval. All NW., Washington, DC 20420. Please a. Request for Accelerated Payment— comments will become a matter of refer to ‘‘OMB Control No. 2900–0636’’ 1 minute. in any correspondence. public record. Comments are invited on: b. Certifications Required from (a) Whether the collection of FOR FURTHER INFORMATION CONTACT: Individuals Electing Accelerated information is necessary for the proper Nancy J. Kessinger at (202) 273–7079 or Payments—5 minutes. performance of the functions of the FAX (202) 275–5947. c. Agreement with Educational agency, including whether the SUPPLEMENTARY INFORMATION: Under the Institutions—3 minutes. information shall have practical utility; PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Frequency of Response: On occasion. (b) the accuracy of the agency’s estimate 3501–3520), Federal agencies must Estimated Number of Respondents: of the burden of the collection of obtain approval from the Office of 13,727 information; (c) ways to enhance the Management and Budget (OMB) for each a. Request for Accelerated Payment— quality, utility, and clarity of the collection of information they conduct 6,000. information to be collected; (d) ways to or sponsor. This request for comment is b. Certifications Required from minimize the burden of the collection of being made pursuant to Section Individuals Electing Accelerated information on respondents, including 3506(c)(2)(A) of the PRA. Payments—6,000. through the use of automated collection With respect to the following c. Agreement with Educational techniques or other forms of information collection of information, VBA invites Institutions—1,727. technology; and (e) estimates of capital comments on: (1) Whether the proposed or start-up costs and costs of operation, collection of information is necessary Estimated Annual Responses: 21,727. maintenance, and purchase of services for the proper performance of VBA’s a. Request for Accelerated Payment— to provide information. functions, including whether the 10,000. b. Certifications Required from Approved: June 27, 2003. information will have practical utility; (2) the accuracy of VBA’s estimate of the Individuals Electing Accelerated Glenn P. Kirkland, burden of the proposed collection of Payments—10,000. IRS Reports Clearance Officer. information; (3) ways to enhance the c. Agreement with Educational [FR Doc. 03–16944 Filed 7–2–03; 8:45 am] quality, utility, and clarity of the Institutions—1,727. BILLING CODE 4830–01–P information to be collected; and (4) Dated: June 23, 2003.
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By direction of the Secretary. Loise Russell, Acting Director, Records Management Service. [FR Doc. 03–16864 Filed 7–2–03; 8:45 am] BILLING CODE 8320–01–P
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Corrections Federal Register Vol. 68, No. 128
Thursday, July 3, 2003
This section of the FEDERAL REGISTER DEPARTMENT OF HOMELAND Wednesday, June 25, 2003, make the contains editorial corrections of previously SECURITY following correction: published Presidential, Rule, Proposed Rule, and Notice documents. These corrections are Coast Guard §165.151 [Corrected] prepared by the Office of the Federal On page 37741, in §165.151, in the Register. Agency prepared corrections are 33 CFR Part 165 third column, in amendatory instruction issued as signed documents and appear in j., in the eighth line ‘‘072°05″23″’’ the appropriate document categories [USCG–2003–15404] ° ′ ″ elsewhere in the issue. should read ‘‘072 05 23 ’’. RIN 1625–ZA00 [FR Doc. C3–15742 Filed 7–2–03; 8:45 am] BILLING CODE 1505–01–D Navigation and Navigable Waters— Technical, Organizational, and Conforming Amendments Correction In rule document 03–15742 beginning on page 37738 in the issue of
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Part II
Nuclear Regulatory Commission 10 CFR Part 2, et al. Early Site Permits, Standard Design Certifications, and Combined Licenses for Nuclear Power Plants; Proposed Rule
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NUCLEAR REGULATORY Publicly available documents related E. 10 CFR Part 50, Domestic Licensing of COMMISSION to this rulemaking may be examined Production and Utilization Facilities. and copied for a fee at the NRC’s Public F. 10 CFR Part 51, Environmental 10 CFR Parts 2, 20, 21, 50, 51, 52, 72, Document Room (PDR), Public File Area Protection Regulations for Domestic 73, 140, and 170 Licensing and Related Regulatory O1 F21, One White Flint North, 11555 Functions. RIN 3150–AG24 Rockville Pike, Rockville, Maryland. G. 10 CFR Part 72, Licensing Requirements Selected documents, including for the Independent Storage of Spent Early Site Permits, Standard Design comments, can be viewed and Nuclear Fuel and High-Level Radioactive Certifications, and Combined Licenses downloaded electronically via the NRC Waste. for Nuclear Power Plants rulemaking Web site at http:// H. 10 CFR Part 73, Physical Protection of ruleforum.llnl.gov. Plants and Materials. AGENCY: Nuclear Regulatory I. 10 CFR Part 140, Financial Protection Publicly available documents created Commission. Requirements and Indemnity or received at the NRC after November Agreements. ACTION: Proposed rule. 1, 1999, are available electronically at J. 10 CFR Part 170, Fees for Facilities, SUMMARY: The Nuclear Regulatory the NRC’s Electronic Reading Room at Materials, Import and Export Licenses, Commission (NRC or Commission) is http://www.nrc.gov/NRC/ADAMS/ and Other Regulatory Services Under the index.html. From this site, the public Atomic Energy Act of 1954, as Amended. proposing to amend its requirements for IV. Specific Requests for Comments. early site permits, standard design can gain entry into the NRC’s V. Availability of Documents. certifications, combined licenses for Agencywide Document Access and VI. Plain Language. nuclear power plants, and for other Management System (ADAMS), which VII. Voluntary Consensus Standards. licensing processes. The amendments provides text and image files of NRC’s VIII.Environmental Impact’Categorical are based on the NRC staff’s experience public documents. If you do not have Exclusion. with the previous design certification access to ADAMS or if there are IX. Paperwork Reduction Act Statement. X. Regulatory Analysis. reviews and on discussions with problems in accessing the documents located in ADAMS, contact the NRC’s XI. Regulatory Flexibility Certification. stakeholders about the early site permit XII. Backfit Analysis. (ESP), design certification, and PDR Reference staff at 1–800–397–4209, combined license (COL) processes. This 301–415–4737 or by e-mail to I. Background action is expected to improve the [email protected]. The Commission promulgated 10 CFR effectiveness of the licensing processes FOR FURTHER INFORMATION CONTACT: Jerry part 52 on April 18, 1989 (54 FR 15386), for future applicants. N. Wilson, Office of Nuclear Reactor to reform the licensing process for DATES: Submit comments by September Regulation, U.S. Nuclear Regulatory future nuclear power plant applicants. 16, 2003. Comments received after this Commission, Washington, DC 20555– The rule added alternative licensing date will be considered, if it is practical 0001; telephone (301) 415–3145, email processes in 10 CFR part 52 for early to do so, but the Commission is able to [email protected]; or Nanette V. Gilles, Office site permits, standard design ensure consideration only for comments of Nuclear Reactor Regulation, U.S. certifications, and combined licenses. received on or before this date. Nuclear Regulatory Commission, These were additions to the two-step ADDRESSES: You may submit comments Washington, DC 20555–0001, telephone licensing process that already existed in by any one of the following methods. (301) 415–1180, e-mail [email protected]. 10 CFR part 50. The processes in 10 CFR part 52 resolve safety and Please include the following number SUPPLEMENTARY INFORMATION: RIN 3150–AG24 in the subject line of environmental issues early in licensing your comments. Comments submitted in I. Background. proceedings and are intended to writing or in electronic form will be II. Reorganization of 10 CFR Part 52. enhance the safety and reliability of III. Discussion of Substantive Changes. made available to the public in their nuclear power plants through A. 10 CFR Part 52, Early Site Permits, standardization. The rule also moved entirety on the NRC rulemaking Web Standard Design Certifications, and site. Personal information will not be Combined Licenses for Nuclear Power the licensing processes in appendices removed from your comments. Plants. M, N, O, and Q of 10 CFR part 50 to 10 Mail comments to: Secretary, U.S. General Provisions. CFR part 52. Subsequently, the NRC Nuclear Regulatory Commission, Early Site Permits. certified three nuclear plant designs Washington, DC 20555–0001, ATTN: Early Site Reviews. under subpart B of 10 CFR part 52—the Rulemakings and Adjudications Staff. Standard Design Certifications. U.S. Advanced Boiling Water Reactor E-mail comments to: [email protected]. If Design Certification Backfit Requirement. (ABWR) (62 FR 25827, May 12, 1997), you do not receive a reply e-mail Standard Design Approvals. System 80+ (62 FR 27867, May 21, confirming that we have received your Combined Licenses. 1997), and AP600 (64 FR 72015, Referencing an Early Site Permit. comments, contact us directly at (301) Testing Requirements for Advanced December 23, 1999) designs—and 415–1966. You may also submit Reactors. codified these designs in Appendices A, comments via the NRC’s rulemaking Probabilistic Risk Assessments. B, and C of 10 CFR part 52, respectively. Web site at http://ruleforum.llnl.gov. Resolution of ITAAC. The NRC had planned to update 10 Address questions about our rulemaking Commission Finding on Acceptance CFR part 52 after using the design Web site to Carol Gallagher (301) 415– Criteria. certification process for these three 5905; email [email protected]. Combined License Change Process. certified standard plant designs. In Hand deliver comments to: 11555 Design Certifications for ABWR, System addition, discussions with stakeholders Rockville Pike, Rockville, Maryland 80+, and AP600. at public meetings and comments on B. 10 CFR Part 2, Rules of Practice for SECY–00–0092, ‘‘Combined License 20852, between 7:30 a.m. and 4:15 p.m. Domestic Licensing Proceedings and Federal workdays. (Telephone (301) Issuance of Orders. Review Process,’’ dated April 20, 2000, 415–1966). C. 10 CFR Part 20, Standards for Protection identified licensing issues associated Fax comments to: Secretary, U.S. Against Radiation. with subparts A and C of 10 CFR part Nuclear Regulatory Commission at (301) D. 10 CFR Part 21, Reporting of Defects and 52. As a result, the NRC initiated this 415–1101. Noncompliance. proposed rulemaking to (1) clarify and/
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or correct 10 CFR parts 2, 20, 21, 50, 51, and combined license processes as the TABLE 1.—CROSS-REFERENCES BE- 52 (including appendices A, B, and C), current title implies. TWEEN NEW AND OLD 10 CFR 72, 73, 140, and 170; (2) update 10 CFR The proposed rule would amend PART 52—Continued part 52; and (3) incorporate stakeholder § 52.1 to clarify that all seven licensing comments. processes are within the scope of 10 New section Old section This rulemaking action began with CFR part 52. Paragraphs within current the issuance of SECY–98–282, ‘‘part 52 Appendices M, N, O, and Q would also 52.25 ...... 52.25 Rulemaking Plan,’’ on December 4, become new sections of the revised part. 52.27 ...... 52.27 In addition, the proposed rule would 52.29 ...... 52.29 1998. The Commission issued a staff 52.31 ...... 52.31 requirements memorandum on January reserve subparts for future licensing 52.33 ...... 52.33 14, 1999, approving the NRC staff’s plan processes. In doing so, the NRC hopes 52.35 ...... 52.35 for revising 10 CFR part 52. A notice of to convey that 10 CFR part 52 is the 52.37 ...... 52.37 the rulemaking plan was added to the preferred location in 10 CFR for nuclear 52.39 ...... 52.39 NRC’s rulemaking Web site on June 16, power plant licensing processes. Subpart B—Early Site 1999. On September 3, 1999, letters The proposed rule would amend Reviews: were sent to 10 external stakeholders § 52.19, the current § 52.49 (proposed 52.41 ...... App. Q, Introduction § 52.111), and the current § 52.83 52.43(a) ...... App. Q, Paragraph 1 alerting them to this proposed 52.43(b) ...... App. Q, Paragraph 2 rulemaking. In addition, the NRC staff (proposed § 52.215) to provide a 52.43(c) ...... App. Q, Paragraph 1 held three public meetings with standard format in subparts A, D, and G. 52.45 ...... App. Q, Paragraph 3 interested stakeholders on the 10 CFR This standard format would set forth the 52.46 ...... N/A part 52 rulemaking on December 14, standards for review of applications and 52.47(a) ...... App. Q, Paragraph 4 2000, February 16, 2001, and March 7, the applicability of NRC requirements in 52.47(b) ...... App. Q, Paragraph 5 2001. Following those meetings, on a consistent manner in each of these 52.47(c) ...... App. Q, Paragraph 6 subparts. The references to the part 170 52.49 ...... App. Q, Paragraph 7 April 3, 2001, the Nuclear Energy Subpart D—Standard Institute (NEI) submitted comments on fee requirements would be moved to be Design Certifi- issues discussed during the meetings. included in the sections on filing of cation: On September 27, 2001, the NRC staff applications. This reorganization of 10 52.101 ...... 52.41 posted draft rule language for 10 CFR CFR part 52 will make the subparts on 52.103 ...... 52.43 part 52 on the NRC’s rulemaking Web early site permits and standard design 52.105 ...... 52.45 site. The NRC received comments on the certifications consistent with the 52.107 ...... 52.47 draft rule language in November 2001, existing arrangement in the subpart for 52.109 ...... 52.48 52.111 ...... 52.49 from General Electric, Entergy, NEI, combined licenses. The proposed rule would also move 52.113 ...... 52.51 Westinghouse Electric, and Exelon 52.115 ...... 52.53 Generation. The NRC staff has the requirement on duration of a 52.117 ...... 52.54 considered these comments in the combined license that is currently 52.119 ...... 52.55 development of this proposed rule and located in § 52.83, ‘‘Applicability of part 52.121 ...... 52.57 posted revised draft rule language for 10 50 provisions,’’ to paragraph (e) of 52.123 ...... 52.59 CFR part 52 on the NRC’s rulemaking proposed § 52.227, ‘‘Issuance of 52.125 ...... 52.61 Web site on February 28, 2002. combined licenses.’’ Proposed 52.127 ...... 52.63 § 52.227(e) is a more appropriate Subpart E—Standard II. Reorganization of 10 CFR Part 52 location for this requirement. Design Approvals: 52.131 ...... App. O, Introduction The NRC is proposing to reorganize The Commission has prepared the 52.133(a) ...... App. O, Paragraph 1 10 CFR part 52 to establish a separate following table that cross-references the 52.133(b) ...... App. O, Paragraph 2 subpart for each of the seven licensing new proposed provisions in 10 CFR part 52.135 ...... App. O, Paragraph 3 processes currently described in 10 CFR 52 to the superseded provisions of 10 52.137 ...... App. O, Paragraph 4 part 52 (early site permits, early site CFR part 52. 52.139(a) ...... App. O, Paragraph 5 reviews, standard design certification, 52.139(b) ...... None TABLE 1.—CROSS-REFERENCES BE- 52.141(a) ...... App. O, Paragraph 5 standard design approvals, combined 52.141(b) ...... App. O, Paragraph 6 TWEEN EW AND LD licenses, manufacturing licenses, and N O 10 CFR 52.143 ...... App. O, Paragraph 7 duplicate design licenses). The purpose PART 52 Subpart G—Com- of this reorganization is to clarify that bined Licenses: each licensing process has equal New section Old section 52.201 ...... 52.71 standing. In addition, several subparts 52.203 ...... 52.73 would be reserved for future licensing General Provisions: 52.205 ...... 52.75 52.1 ...... 52.1 processes. No substantive changes are 52.207 ...... 52.77 52.3 ...... 52.3 52.209 ...... 52.78 intended by the incorporation of current 52.5 ...... 52.5 52.211 ...... 52.79 appendices M, N, O, and Q into the new 52.8 ...... 52.8 52.213 ...... 52.81 subparts in 10 CFR Part 52. None ...... 52.9 52.215 ...... 52.83 The NRC is also proposing to retitle Subpart A—Early Site 52.217 ...... 52.85 10 CFR part 52 as ‘‘Additional Licensing Permits: 52.219 ...... 52.87 Processes for Nuclear Power Plants,’’ to 52.11 ...... 52.11 52.221 ...... 52.89 clarify that the licensing processes in 10 52.13 ...... 52.13 52.223 ...... 52.91 52.15 ...... 52.15 CFR part 52 are in addition to and 52.225 ...... 52.93 52.17 ...... 52.17 52.227 ...... 52.97 supplement the two-step licensing 52.18 ...... 52.18 52.229 ...... 52.99 process in 10 CFR part 50 and the 52.19 ...... 52.19 52.231 ...... 52.103 license renewal process in 10 CFR part 52.21 ...... 52.21 Subpart H—Manufac- 54, and are not limited to the early site 52.23 ...... 52.23 turing Licenses: permit, standard design certification, 52.24 ...... 52.24 52.241 ...... App. M, Introduction
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TABLE 1.—CROSS-REFERENCES BE- each reactor and all of its necessary The industry proposes that additional TWEEN NEW AND OLD 10 CFR support systems were completed. In a General Provisions be added to part 52 in addition to an appropriate provision on PART 52—Continued letter dated November 13, 2001 (comment A), NEI stated that ‘‘Part 1 of Written Communications. This approach is preferable to including cross-references in New section Old section the definition would need to be revised part 52 to part 50 general provisions because for this purpose so that it does not these provisions typically must be tailored to 52.243(a) ...... N/A describe typical multi-unit sites. The apply appropriately to the variety of 52.243(b) ...... App. M, Paragraph 7 NRC staff should reconsider the need to licensing processes in part 52. 52.243(c) ...... App. M, Paragraph 9 define this term at all.’’ The 52.243(d) ...... App. M, Paragraph 10 The Commission disagrees with the Commission disagrees with NEI’s 52.243(e) ...... App. M, Paragraph 11 industry’s proposal to create over 35 recommendation because the term 52.243(f) ...... App. M, Paragraph 8 new general provisions that are tailored ‘‘modular design’’ needs to be defined to 52.245(a) ...... App. M, Paragraph 2 for 10 CFR part 52 because it would 52.245(b) ...... App. M, Paragraph 3 aid future use of the current § 52.103(g) appear to be an inefficient and 52.245(c) ...... App. M, Paragraph (proposed § 52.231(g)) by distinguishing burdensome addition. Therefore, the 4(b) the intended definition from other Commission is proposing a new § 52.5 52.247 ...... App. M, Paragraph 1 definitions for ‘‘modular design.’’ that would make the existing general 52.249 ...... App. M, Paragraph Currently licensed multi-unit sites 4(a) provisions in 10 CFR part 50 applicable would not be affected by the proposed 52.251 ...... N/A to the licensing processes in 10 CFR part § 52.231(g). However, future applicants 52.253 (a) & (b) ..... App. M, Paragraph 5 52. 52.253(c) ...... App. M, Paragraph 6 for a combined license for a multi-unit 52.255 ...... N/A site similar in concept to current multi- Early Site Permits 52.257 ...... App. M, Paragraph 12 unit sites (where each unit is similar in The proposed rule would amend Subpart I—Duplicate design but independent of all other § 52.13 to state that an early site permit Design Licenses: units) could also use this provision. 52.261 ...... App. N, Introduction can also be referenced in an application 52.263 ...... App. N, Paragraph 1 A definition for prototype plant is for a combined license or a duplicate 52.265 ...... App. N, Paragraph 2 added to explain the type of nuclear design license. 52.265(c) ...... App. N, Paragraph 3 reactor that the Commission intended in The proposed rule would amend Subpart M—Enforce- the current § 52.47(b) (proposed § 52.17(a)(1) to state that the early site ment: § 52.107(b)) and intends in the proposed permit application should specify the 52.401 ...... 52.111 § 52.211(b)(3). A prototype plant is a range of facilities that the applicant is 52.403 ...... 52.113 licensed nuclear reactor test facility that requesting the site to be qualified for is similar to and representative of either (e.g. one, two, or three pressurized- III. Discussion of Substantive Changes the first-of-a-kind or certified nuclear water reactors). This new language is A section-by-section analysis that plant design in all features and size, but consistent with the language in explains the purpose and meaning of all may have additional safety features. The Paragraph 2 of current Appendix Q. The sections in 10 CFR part 52 will be purpose of the prototype plant is to Commission assumes that an applicant provided in the supplementary perform testing of new or innovative for an early site permit does not know information for the final rule. The design features for the first-of-a-kind or what type of nuclear plant it will build proposed rule makes the following certified, advanced nuclear plant at the site. Therefore, the application substantive changes: design, as well as being used as a must specify the postulated design commercial nuclear power facility. A. 10 CFR Part 52, Early Site Permits, parameters for the range of reactor Standard Design Certifications, and The proposed rule would remove types, the numbers of reactors, etc., to Combined Licenses for Nuclear Power §§ 52.5 and 52.9 and replace them with increase the likelihood that the site will Plants a new § 52.5 listing all of the licensing be qualified for the actual plant or provisions in 10 CFR part 50 that also plants that the applicant decides to General Provisions apply to all of the licensing processes in build. In a letter dated November 13, The proposed rule would amend 10 CFR part 52. The purpose of this 2001 (comment 27), NEI stated, ‘‘The § 52.3 to add definitions for ‘‘modular amendment is to clarify that these 10 proposed change is too limited. To design’’ and ‘‘prototype plant’’ to the CFR part 50 provisions are applicable to address the required assessment of current 10 CFR part 52. A definition of the licensing processes that were major SSCs [structures, systems, and modular design is added to explain the formerly in 10 CFR part 50 (Appendices components] that bear on radiological type of modular reactor design to which M, N, O, and Q) and are now in 10 CFR consequences and all items the Commission intended to refer to in part 52, as well as to the new licensing 52.17(a)(1)(i–viii), industry recommends the second sentence of the current processes for early site permits, a new § 52.17a.2.’’ The Commission § 52.103(g) (proposed § 52.231(g)). This standard design certifications, and disagrees with NEI’s proposal to have a special provision for modular designs combined licenses. Although these separate provision for applicants who was added to 10 CFR part 52 to facilitate provisions in 10 CFR part 50 may not have not determined the type of plant the licensing of nuclear plants, such as refer to the additional licensing that they plan to build at the proposed the Modular High Temperature Gas- processes in 10 CFR part 52, the new site. The Commission expects that Cooled Reactor (MHTGR) and Power § 52.5 makes it clear that a holder of or applicants for an early site permit will Reactor Innovative Small Module applicant for an approval, certification, not have decided on a particular type of (PRISM) designs, that consisted of 3 or permit, site report, or license issued nuclear power plant and § 52.17(a)(1) 4 nuclear reactors in a single power under 10 CFR part 52 must comply with was revised to address this situation. block with a shared power conversion all requirements in these provisions that The Commission proposes to amend system. During the period that the are otherwise applicable to applicants or § 52.17(a)(2) to clarify that an ESP power block is under construction, the licensees under 10 CFR part 50. applicant has the flexibility of either Commission could separately authorize In a letter dated November 13, 2001 addressing the matter of alternative operation for each nuclear reactor when (comment G), NEI stated: energy sources in the environmental
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report supporting its ESP application, or be addressed in the environmental paragraph (a)(2)(iii) of the current rule, deferring the consideration of report and EIS for an ESP, regardless of which also refer to ‘‘site parameters’’ alternative energy sources to the time whether the ESP applicant chooses to and ‘‘terms and conditions.’’ that the ESP is referenced in a licensing defer, pursuant to § 52.17(a)(2), The proposed rule would add § 52.28 proceeding. The Commission believes consideration of the benefits associated to state that transfer of an early site the current regulations already afford with the construction and operation of permit from its existing holder to a new the ESP applicant such flexibility, a nuclear power plant that may be applicant will be processed under 10 inasmuch as § 52.17(a)(2) states that the located at the ESP site. This is because CFR 50.80, which contains provisions environmental report submitted in the ‘‘benefits * * * of the proposed for transfer of licenses. In a letter dated support of an ESP application must action’’ for which the discussion may be November 13, 2001 (comment 19), NEI ‘‘focus on the environmental effects of deferred under §§ 52.17(a)(2) are the recommended that a new section be construction and operation of a reactor, benefits associated with the added to part 52 to clarify the process or reactors * * *.’’ The environmental construction and operation of a nuclear for transfer of an early site permit. The report’s discussion of alternative energy power plant that may be located at the Commission has determined that a new sources does not, per se, address the ESP site; the benefits which may be section is not necessary because an early ‘‘environmental effects of construction deferred under § 52.17(a)(2) are entirely site permit is a partial construction and operation of a reactor,’’ which is separate from the benefits of issuing an permit and, therefore, is considered to one of the matters which must be ESP. To put it another way, the be a license under the AEA. The addressed in an environmental impact proposed action of issuing an ESP is not Commission believes that the statement (EIS). See 10 CFR 51.71(d); the same as the ‘‘proposed action’’ of procedures and criteria for transfer of National Environmental Policy Act of constructing and operating a nuclear utilization facility licenses in 10 CFR 1969 (NEPA), § 102(2)(C) (i), (ii) and (v). power plant for which the discussion of 50.80 (and the procedures in subpart M Rather, alternative energy sources benefits (including need for power) may of 10 CFR part 2 for the conduct of any constitutes part of the discussion of be deferred under § 52.17(a)(2)1. With hearing) should apply to the transfer of reasonable alternatives to the proposed this clarification, the Commission does an early site permit. Section 52.39(a) would be amended to action, which is required by not believe that further changes to the uniformly refer to ‘‘terms or conditions’’ § 102(2)(C)(iii) of NEPA. See 10 CFR language of §§ 52.17 and 52.18 are of an early site permit. Section 51.71(e) n.4; 46 FR 39440 (August 3, necessary. 52.39(a)(1) would also be amended to 1981) (proposed rule eliminating The proposed rule would amend remove the term, ‘‘requirements,’’ and consideration of need for power and §§ 52.24 and 52.39 to clarify: (1) The clarify that the Commission may not alternative energy sources at operating information that the NRC must include change or impose new site license stage), at 39441 (first column). in the early site permit when it is characteristics, terms, or conditions on Accordingly, it is the Commission’s issued; (2) the matters accorded finality the early site permit, including view that § 52.17(a)(2) already provides in any subsequent NRC review and emergency planning requirements, the ESP applicant the flexibility of proceeding for an application unless the special backfitting criteria in choosing to defer consideration of referencing the early site permit; and (3) § 52.39(a)(1) are satisfied. No alternative energy sources to the time (if the matters that may be challenged in a substantive change is intended by this ever) that the ESP is referenced in a contention to be resolved in an clarification; the Commission believes combined license or a construction adjudication, versus those matters that that ‘‘site characteristics, terms, or permit application. The proposed rule may be raised in a petition to be conditions’’ of an early site permit more clarifies that the ESP applicant may processed in accord with 10 CFR 2.206. accurately describe the existing scope of either include a discussion of Section 52.21 would be amended to matters subject to the special backfitting alternative energy sources in its clarify that an application referencing criteria in § 52.39(a)(1). environmental report, or defer an early site permit must, in addition to consideration of the matter. The showing that the design of the facility Early Site Reviews falls within the site parameters specified Commission proposes to make a The proposed rule would amend in the early site permit, demonstrate conforming amendment to §§ 52.18 and certain paragraphs of the current that all terms and conditions of the early 52.21 to make clear that the NRC’s EIS Appendix Q to 10 CFR part 52 site permit have been satisfied. Section need not address need for power, or (proposed §§ 52.41, 52.43, and 52.47) to 52.24 would also be amended to provide alternative energy sources (and therefore clarify that an early site review can also that the early site permit must state the such matters may not be litigated) if the be used in an application for a site parameters, as well as the ‘‘terms ESP applicant chooses not to address combined license or a duplicate design and conditions,’’ of the early site permit, either or both of these matters in its license. environmental report. The Commission rather than the ‘‘conditions and notes that both the environmental report limitations’’ as is currently provided. No Standard Design Certifications and EIS for an ESP must address the substantive change in § 52.24 is The proposed rule would amend the benefits associated with issuance of the intended by the proposed amendment; current §§ 52.41 and 52.45 (proposed ESP (e.g., early resolution of siting the change is proposed to provide § 52.101 and § 52.105) to clarify that a issues, early resolution of issues on the consistency with § 52.39(a)(2) and certified design may be referenced in an environmental impacts of construction application for a duplicate design and operation of a reactor(s) that fall 1 The Commission emphasizes that under license, as well as a combined license § 52.17(a)(2), only the discussion of benefits within the site parameters, and ability of (including need for power) of constructing and application, filed under part 52. potential nuclear power plant licensees operating a nuclear power reactor (or reactors), and The proposed rule would remove the to ‘‘bank’’ sites on which nuclear power the discussion of alternative energy sources, may be requirements currently located in plants could be located, without deferred. The ER must always address the §§ 52.43(c), 52.45(c), and 52.47(b)(2)(ii) ‘‘environmental impacts of construction and obtaining a full construction permit or operation of a reactor, or reactors, which have because the Commission has decided combined license). The benefits (and characteristics which fall within the postulated site not to require a final design approval impacts) of issuing an ESP must always parameters.’’ (FDA) as a prerequisite for certification
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of a standard plant design under the Necessary for compliance with under paragraphs (a)(3) or (b)(1) of new subpart D of 10 CFR part 52. This Commission regulations applicable and § 52.127. Thus, standardization is requirement was included in 10 CFR in effect at the time the certification was maintained by ensuring that any part 52 because, at the time of the issued, or (2) necessary to provide changes to a design certification rule original rulemaking, the NRC had no adequate protection of the public health intended to reduce regulatory burden experience with design certification and safety or common defense and are imposed upon all nuclear power applications. By requiring an FDA as a security. The regulation does not plants referencing the design prerequisite for certification, the NRC appear, on its face, to permit changes to certification rule. indicated that the licensing processes the certification which reduce In a letter dated November 13, 2001, for design certifications and FDAs were unnecessary regulatory burdens, in NEI stated: similar, even though the requirements circumstances where the change Furthermore, we do not think it is for and finality of design certifications continues to maintain protection to necessary to modify 10 CFR 52.63(a)(1) in differ from that of FDAs. The NRC has public health and safety and common order to make conforming, administrative or considerable experience with design defense and security. An example of a similar changes to the DCRs, such as those certification applications and the change which may not be able to be needed to conform the DCRs to the revised 10 CFR 50.59. Nor do we think the requirement to apply for an FDA as part made under the current § 52.63(a)(1) is of an application for design certification Commission intended the DCR backfit a proposed change to the three design provisions to inhibit these types of changes. is no longer needed. certification rules in Appendices A, B Rather, we believe 10 CFR 52.63(a)(1) is In a letter dated April 3, 2001 and C of 10 CFR part 52, to incorporate intended to apply to changes in the standard (comment 2), NEI commented ‘‘Industry into the Tier 2 change process the design approved via the DCR. We prefers to retain modified provisions. revised change criteria in 10 CFR 50.59. recommend the Commission clarify this We agree that an FDA should be an Section 50.59 was revised in 1999 to intent and provide guidance to the NRC staff option but not a prerequisite. Also, provide new criteria for, inter alia, allowing certain changes to the DCRs (such as those needed to conform to the revised 10 deletion recommended for making changes to a facility, as 52.47(b)(2)(ii).’’ The Commission has CFR 50.59) within the existing DCR backfit described in the final safety analysis provisions. decided not to retain these provisions. report, without prior NRC approval, in The Commission received similar The proposed processes in subparts D order to reduce unnecessary regulatory comments from General Electric and E allow future applicants for design burden (64 FR 53582, October 4, 1999). certification the option to apply for an Company, Entergy, and Exelon in FDA for the same design information. To allow the Commission to modify November 2001. The Commission The proposed rule would also amend the design certification rules in 10 CFR disagrees with these comments and has the current § 52.45(d) (proposed part 52 to incorporate the revised concluded that it is necessary to amend § 52.105(c)) to correct the reference to § 50.59 change criteria, and to allow the § 52.63(a)(1) to allow changes to the the filing requirements in § 50.30(a) and Commission to make future changes to design certification rules that reduce delete the reference to § 50.4. The reduce unnecessary regulatory burden, unnecessary regulatory burden, or do applicability of the requirements in the Commission is proposing to amend not constitute a backfit. § 50.4 is set forth in the new § 52.5. No § 52.127(a)(1) to include a new The current § 52.63(a)(1) (proposed substantive change in the filing provision that explicitly allows the § 52.127(a)(1)) was also modified to requirements is intended by this Commission to change the design replace ‘‘a modification’’ with ‘‘the correction. certification rules or certification change,’’ in order to clarify that the The proposed rule would amend the information if the change provides a three criteria for changes apply to current § 52.47 (proposed § 52.107) to reduction in regulatory burden and modifications, rescissions or imposition conform the statement of the maintains protection to public health of new requirements. Also, the requirements for acceptable inspections, and safety and common defense and Commission is clarifying the proposed tests, analyses, and acceptance criteria security. Maintaining protection § 52.127 to be consistent with its (ITAAC) in § 52.107 with the Atomic generally embodies the same safety original intent (refer to 54 FR 15372; Energy Act (AEA) and the requirements principles used by the NRC in applying April 18, 1989) that the special backfit in the current § 52.97(b) [proposed risk-informed decision making, e.g., requirements apply to the certification § 52.227(b)]. This clarification of the ensuring that adequate protection is information in the generic design previous regulatory text, which provided, applicable regulations are control documents, not to the provisions condensed the language in § 52.79(c) met, sufficient safety margins are in the design certification rules, e.g., and § 52.97(b), is intended to avoid any maintained, defense-in-depth is Section VI.E of Appendix A to 10 CFR future misunderstandings. maintained, and that any changes in risk part 52. Any proposed changes to these are small and consistent with the provisions that set forth how the design Design Certification Backfit Commission’s Safety Goal Policy certification rules are to be used are Requirement Statement (refer to NRC’s Regulatory controlled by the normal backfit The proposed rule would amend the Guide 1.174). Changes to the design requirements in 10 CFR 50.109. special backfit requirement in the certification rules must be accomplished The proposed rule would amend the current § 52.63(a)(1) (proposed through rulemaking, with opportunity current § 52.63(a)(2) (proposed § 52.127(a)(1)) to provide the for public comment. Once a design § 52.127(a)(2)) to delete the reference to Commission with the ability to make certification rule is changed through § 52.63(a)(4) (proposed § 52.127(a)(4)). changes to the design certification rules rulemaking, under proposed The reference to § 52.63(a)(4) was in or the certification information in the § 52.127(a)(2) the provisions would error because this paragraph discusses generic design control documents that apply to all future applications the finality of the findings required for reduce unnecessary regulatory burdens. referencing the design certification rule issuance of a combined license or Section 52.63(a)(1) currently states that as well as all current plans referencing operating license, whereas § 52.63(a)(2) the Commission may not modify, the design certification, unless the deals with modifications that the NRC rescind, or impose new requirements on change has been rendered ‘‘technically may impose on a design certification the certification unless the change is: (1) irrelevant’’ through other action taken rule under § 52.63(a)(3) or § 52.63(b)(1)
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(proposed § 52.127(a)(3) or provide the same term as for the design § 50.120. There is no explicit § 52.127(b)(1)). No substantive change is certification. These actions did not requirement with respect to the intended by the amendment which change the Commission’s policy for applicant/licensee to implement the merely clarifies the original intent of the FDAs issued by themselves. The training program. Furthermore, rule. Commission has now decided that the proposed § 52.215(b) indicates that, after duration of standard design approvals a combined license is issued but before Standard Design Approvals should correspond to the duration of the Commission has authorized The proposed rule would amend the design certifications. The Commission operation under § 52.231, the combined current Section 3 of Appendix O to 10 has not identified any compelling license holder shall comply with all CFR part 52 (proposed § 52.135) to technical or policy considerations that requirements in Title 10 of the Code of clarify that applications for standard would lead the Commission to maintain Federal Regulations applicable to design approvals should contain all of a shorter effective time period for an holders of construction permits for the applicable technical information FDA as compared to a design nuclear power reactors. However, required by § 50.34. The amendment certification. § 50.120 refers to a ‘‘nuclear power plant would also require applications for applicant;’’ therefore, § 50.120 would Combined Licenses standard design approvals to provide not apply to a combined license holder the same technical information required The proposed rule would amend the even under the language of proposed for applications for standard design current § 52.73 (proposed § 52.203(a)) to § 52.215(b). certifications (e.g., demonstration of clarify that a site report issued under To remove any ambiguity in this compliance with any technically proposed subpart B of 10 CFR part 52 matter, the Commission is proposing to relevant Three Mile Island may also be referenced in an application revise in its entirety the language in requirements, proposed technical for a combined license application filed current § 52.78, which is being re- resolutions of unresolved safety issues under 10 CFR part 52. This amendment designated as § 52.209. The proposed and medium- and high-priority generic would also add the requirements in the rule provides that the application must safety issues, and a design-specific current § 52.63(c) (proposed § 52.127(c)) ‘‘describe’’ the training program probabilistic risk assessment (PRA)). to the new § 52.203(b) to clarify that this required by § 50.120. In addition, the This clarification is consistent with past requirement applies to applicants for a proposed rule states that the training practice regarding applications for combined license. This provision program described in the application future designs and would implement requires that, prior to granting a must be ‘‘established, implemented, and the Commission’s Policy Statements on combined license which references a maintained’’ no later than eighteen (18) Severe Reactor Accidents (50 FR 32138, standard design certification, months prior to the scheduled date for August 8, 1985) and Nuclear Power information normally contained in initial loading of fuel, as provided for in Plant Standardization (52 FR 34884, certain procurement specifications and § 52.231(a). By ‘‘established [and] September 15, 1987). This amendment construction and installation implemented’’, the Commission intends would not require applicants to provide specifications be completed and to distinguish between the requirement proposed ITAAC because standard available for audit if such information is to merely ‘‘describe’’ the training design approvals are referenced in necessary for the Commission to make program in the application, versus the applications for construction permits its safety determinations, including the requirement for the combined license and operating licenses under 10 CFR determination that the application is holder to establish (e.g., establish a part 50, and the verification process consistent with the certified design. No training organization, fill staff positions, used for 10 CFR Part 50 applications substantive change is intended by the write procedures, etc.) and implement does not use ITAAC. restatement of this requirement. In a (i.e., perform training of applicable The proposed rule would amend the letter dated April 3, 2001 (comments 3 operating plant personnel in accordance current Appendix O to 10 CFR Part 52 and 3.a), NEI agreed with the proposed with § 50.120) the training program. The (proposed § 52.139) to specify that the change but recommended that the last proposed rule also clarifies that the duration of a standard design approval sentence of § 52.63(c) be deleted and the eighteen (18) month period by which is for 15 years. In a letter dated remaining provision be added to the the training program must be November 13, 2001 (comment 18.a), NEI current § 52.79 rather than the current established and implemented is commented: § 52.73. The Commission agrees with measured from the combined licensee’s Industry recommends FDAs be valid for 15 NEI that 10 CFR part 52 should be scheduled date for fuel load under years. This is consistent with Commission modified to clarify that the requirement proposed § 52.231(a) (current direction in COMSECY–94–025 to update the in current § 52.63(c) applies to § 52.103(a)). lead plant FDA to provide a 15 year duration applicants for a combined license, and instead of the five years initially provided. that the last sentence be deleted. Referencing an Early Site Permit The ABWR and System 80+ FDAs were so However, the Commission is adding the The proposed rule would amend revised in 1994; the designs were certified in remaining provision to what was current §§ 52.39 and 52.79 (proposed 1997. § 52.73(b) (proposed § 52.203(b)) and § 52.211) to require a license applicant The Commission agrees with industry’s not to § 52.79 (proposed § 52.211) as referencing an early site permit to recommendation. The final design recommended by NEI. update and correct the emergency approvals (FDAs) for the three certified The proposed rule would amend the preparedness information provided designs were originally issued for a five current § 52.78 (proposed § 52.209) to under § 52.17(b). The issue of updating year duration, in accordance with the clarify the requirements applicable to an an early site permit was first raised by Commission’s Policy Statement on applicant for, and holder of, a combined the Illinois Department of Nuclear Standardization of Nuclear Power Plants license with respect to the training Safety, who suggested in a September (43 FR 38954, August 31, 1978). Only program required by 10 CFR 50.120. As 28, 1994 letter that emergency plans after design certifications were issued currently written, § 52.78 simply and/or offsite certifications approved as for the ABWR and the System 80+ indicates that the application must part of an early site permit review be designs did the Commission direct, for demonstrate compliance with the kept up-to-date throughout the duration consistency, that the FDAs be revised to training program requirements in of an early site permit and the
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construction phase of a combined information in the early site permit or materially change the NRC’s previously- license. In SECY–95–090, ‘‘Emergency approved emergency plan. However, the stated bases for accepting the early site Planning Under 10 CFR part 52,’’ (April Commission also agrees with NEI that a permit emergency plan; therefore, a 11, 1995), the NRC staff stated that 10 ‘‘continuous’’ early site permit update hearing contention would not be CFR part 52 does not clearly require an requirement would impose burdens admitted under § 52.39(a)(2)(ii) (or any applicant referencing an early site upon the early site permit holder other provision of § 52.39) in a permit to submit updated information without any commensurate benefit if the proceeding for a license referencing the on changes in emergency preparedness early site permit is not subsequently early site permit. By contrast, if an information and any emergency plans referenced. Accordingly, the emergency plan submitted as part of an that were approved as part of the early Commission has decided that § 52.39 early site permit relies upon a bridge to site permit in accordance with § 52.18. and current § 52.79 (proposed § 52.211) provide the primary path of evacuation, SECY–95–090 indicated (p. 4) that, in should contain an updating requirement and that bridge no longer exists, the view of the lack of industry interest in to be imposed upon the applicant change could materially affect the NRC’s pursuing an early site permit, resolution referencing an early site permit. previous determination that the of this matter may be deferred until a The proposed rule redesignates emergency plan complied with the ‘‘lessons learned’’ rulemaking updating paragraph (b) of current § 52.39 as Commission’s emergency preparedness 10 CFR part 52 is conducted after the paragraph (c), and adds a new paragraph regulations in effect at the time of the first design certification rulemakings are (b) requiring an applicant for a issuance of the early site permit. Thus, issued. Following public release of a construction permit, operating license, such information may be the basis for a draft SECY paper setting forth the NRC duplicate design license, or combined change in the early site permit’s terms staff’s preliminary views on the license whose application references an and conditions related to emergency licensing process for a combined early site permit to update and correct preparedness under § 52.39(a)(1), as license, the Nuclear Energy Institute the emergency preparedness well as the basis for a hearing (NEI) submitted a letter dated information provided under § 52.17(b), contention under § 52.39(a)(2)(ii)— September 8, 1998 (comment 2.d), and to discuss whether the new assuming that the requirements in 10 expressing NEI’s opposition to a information may materially change the CFR part 2 for admission of a contention requirement for updating emergency bases for compliance with the are met. preparedness information throughout applicable NRC requirements. A parallel An updating requirement for early site the duration of an early site permit requirement is included in proposed permit information other than absent an application referencing the § 52.211(d)(1) to ensure that applicants emergency preparedness information early site permit. As an alternative to for combined licenses referencing an does not appear to be necessary, updating throughout the duration of an early site permit will submit the inasmuch as it is unlikely that there early site permit, NEI proposed that updated emergency preparedness would be changes to the information emergency planning information be information. New information which previously submitted on the site, such updated when an application for a materially changes the bases for that a significant change to the site license referencing the early site permit compliance includes: (1) Information characteristics, terms, and conditions is filed; portions of the emergency plans which substantially alters the bases for would be necessary if requested under that are unchanged would continue to a previous NRC conclusion with respect the provisions of § 52.39(a)(2). If the site to the acceptability of a material aspect does not conform to the characteristics have finality under 10 CFR 52.39. of emergency preparedness or an of the early site permit, an interested Thereafter, in a September 3, 1999 emergency preparedness plan, as well as person may submit a petition under letter, the NRC staff identified updating (2) information which would constitute § 52.39(a)(2)(ii) alleging that the site of emergency preparedness information a sufficient basis for the Commission to does not conform to the early site in early site permits as a possible modify or impose new terms and permit. Accordingly, the proposed rule subject for the part 52 rulemaking. conditions related to emergency does not include an updating The Commission agrees with the preparedness in accordance with requirement for other early site permit Illinois Department of Nuclear Safety § 52.39(a)(1). New information which information. that the emergency preparedness materially changes the Commission’s The proposed rule would amend information approved when the early determination of the matters in § 52.79(a)(1) (proposed § 52.211(a)(1)), site permit was issued must be updated § 52.17(b), or results in modifications of which currently requires a combined if there is new information which may existing terms and conditions under license application referencing an early materially affect the Commission’s § 52.39(a)(1) would be subject to site permit to contain information earlier determination on emergency litigation during the construction demonstrating that the design of the preparedness, or if the new information permit, operating license, duplicate facility falls within the parameters is needed to correct inaccuracies in the design license, or combined license specified in the early site permit, and emergency preparedness information proceedings in accordance with information needed to resolve any other approved in the early site permit. In the § 52.39(a)(2)(ii). significant environmental issue not absence of such an updating Not all new information on considered in the proceeding on the requirement, the NRC would bear the emergency preparedness would be referenced early site permit. Currently, responsibility of identifying whether subject to challenge in a hearing under § 52.79(a)(1) requires a combined there is new information on emergency § 52.39(a)(2)(ii). For example, an license application referencing an early preparedness that necessitates a re- emergency plan may have to be updated site permit to contain information examination of the Commission’s earlier to reflect current telephone numbers, demonstrating that the design of the emergency preparedness determinations the names of governmental officials facility falls within the site parameters for the early site permit, and the early whose positions and responsibilities are specified in the early site permit. site permit holder or applicant defined in the plan (e.g., the name of the However, § 52.79(a) does not explicitly referencing the early site permit would current police chief for a municipality), require the application to address be under no obligation to correct or the current name of a hospital whether the terms and conditions inaccurate emergency preparedness facility. Such corrections do not specified in the early site permit under
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§ 52.24 have been met by the combined performance of safety features for build and complete testing of a full-scale license holder, although this is implicit nuclear power plants that differ prototype before the granting of the license. by the inclusion of any terms and significantly from evolutionary light- The potential to require prototype testing to conditions in the early site permit. To water reactors or utilize simplified, support issuance of a COL is contrary to Commission guidance in the part 52 remove any ambiguity in this matter, the inherent, passive, or other innovative Statements of Consideration. The Commission is proposing to include a means to accomplish their safety Commission clearly recognized ‘‘licensing proposed § 52.211(a)(1)(iii) by requiring functions (advanced reactors), were the prototype for commercial operation’’ as a the application to address whether the included in 10 CFR part 52 to ensure path open to applicants under subpart C of terms and conditions specified in the that these safety features will perform as part 52 that could lessen the burden of early site permit under § 52.24 have predicted in the applicant’s safety having to demonstrate innovative designs been met (the Commission also analysis report, that the effects of through full scale prototype testing. We agree proposes to rearrange paragraph (a)(1) systems interactions are acceptable, and with the further statement by the by dividing the criteria to be met by an Commission that, ‘‘[i]t is well to remember to provide sufficient data to validate also that, under the rule, prototype testing is application referencing an early site analytical codes. The design required only for certification or an permit into separate subdivisions (i), qualification testing requirements may unconditional design approval, if at all.’’ (ii), and (iii)). The Commission’s intent, be met with either separate effects or * * * In sum, through its existing as reflected in the words, ‘‘have been integral system tests; prototype tests; or requirements and regulatory authority, the met,’’ is that all terms and conditions a combination of tests, analyses, and NRC is assured of (1) Adequate information will be met prior to issuance of the operating experience. These to support required COL reviews and safety combined license. requirements implement the determinations, and (2) satisfactory demonstration of innovative design features Testing Requirements for Advanced Commission’s policy on proof-of- during startup and power ascension testing. Reactors performance testing for all advanced The proposed new COL application reactors (see 51 FR 24643; July 8, 1986) The proposed rule would amend the requirements are unnecessary and should not and the Commission’s goal of resolving be carried forward into the part 52 NOPR current § 52.79(b) (proposed § 52.211(b)) all design issues before authorizing (Notice of Proposed Rulemaking). to revise the requirements for combined construction. The Commission disagrees with NEI license applications that do not During the development of 10 CFR reference a design certification rule by and Exelon regarding the need to part 52, the focus of the nuclear perform qualification testing for new or adding the current § 52.47(b)(2) industry and the NRC staff was on (proposed § 52.107(b)(2)) to the list of innovative safety features in all applications for design certification. advanced reactor designs. The requirements in the proposed That is why the testing requirements to § 52.211(b)(1) that a combined license Commission reformed the licensing qualify new or innovative safety features process for new nuclear plants with the applicant must comply with. This was only included in subpart B of 10 amendment will provide consistency issuance of 10 CFR part 52 in 1989 and CFR part 52, ‘‘Standard Design required applicants to demonstrate that between the current advanced reactor Certifications.’’ The tests to qualify a testing requirements in subpart B of part safety features will perform as predicted design feature are different than in their final safety analysis report. 52 (§ 52.47(b)(2)) and the proposed verification tests, which are required by testing requirements in the proposed Although the focus of the NRC staff in § 52.79(c) and performed in accordance subpart G of part 52 (§ 52.211(b)). This 1989 was on applications for design with section XI, ‘‘Test Control,’’ of amendment will require a combined certification, the Commission intended Appendix B to 10 CFR part 50. license applicant that references a that testing to qualify design features Verification tests are used to provide custom advanced reactor design to also (proof-of-performance testing) would be assurance that construction and perform the design qualification testing required for all advanced reactors, installation of equipment (as-built) in required by the current § 52.47(b)(2) for including custom designs (see Question the facility has been accomplished in design certification applicants. If a 6 at 51 FR 24646; July 8, 1986). accordance with the approved design. combined license application references Furthermore, it would make no sense Exelon Generation and NEI a certified advanced reactor design, the for the Commission to require testing for commented on the addition of testing qualification testing required by design certification (paper designs) and requirements for combined license § 52.47(b)(2) will have been performed. not require testing for applications to applications, in letters dated November The amendment also requires (proposed build and operate an actual advanced 13, 2001. NEI stated: § 52.211(b)(3)) that if a licensed nuclear reactor. prototype plant (see definition in COL application requirements in Although the Commission has stated proposed § 52.3) is used to meet the § 52.79(b)(1) have been modified to include that it favors the use of prototypical qualification testing requirements in the a reference to the design certification demonstration facilities and that application requirements of § 52.47(b)(2)(i). prototype testing is likely to be required current § 52.47(b)(2), additional Under this proposal, an applicant seeking a requirements on siting, safety features, COL for a non-certified design that differs for certification of advanced non-light- or operational conditions may be significantly from typical light water reactors water designs (see policy at 51 FR required for licensing, in order to would have to demonstrate safety feature 24646; July 8, 1986 and Section II of 54 compensate for uncertainties associated performance through either (A) analysis, FR 15372 on 10 CFR part 52; April 18, with the performance of new or testing, or experience, or (B) full-scale 1989), the proposed rule does not innovative safety features in the prototype testing. This requirement is mandate the use of a prototype plant. prototype plant. entirely appropriate for design certification Rather, the proposed rule provides that The codification of testing applicants. However, as discussed below, we if a prototype plant is used to qualify an requirements in the current § 52.47(b)(2) believe it is unnecessary to apply these advanced reactor design, then requirements to COL applicants, and that the was a principal issue in the potential requirement for full-scale prototype additional requirements may be development of 10 CFR part 52 (see testing is particularly inappropriate. required for licensing of the prototype to Section II of 54 FR 15372; April 18, First, part 52 should not be modified to compensate for any uncertainties with 1989). The testing requirements in open the door to requiring a COL applicant, the unproven safety features. Also, the § 52.47(b)(2), to demonstrate the who does not reference a certified design, to prototype plant could be used for
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commercial operation. Therefore, the required by the proposed § 52.211(c) (b), (c) and (d)) and the current § 52.103 Commission proposes to amend before issuance of the combined license. (proposed § 52.231(h)) to incorporate § 52.79(b) (proposed § 52.211(b)) to In a letter dated November 13, 2001 rule language from the design implement its original intent in (comment 20), NEI recommended that certification rules in 10 CFR part 52 adopting 10 CFR Part 52 and its policy Subpart C be revised to allow for regarding the completion of ITAAC (see on advanced reactors that it is necessary completion of design acceptance criteria paragraphs IX.A and IX.B.3 of Appendix to demonstrate the performance of new (DAC) at the COL application stage. NEI A to part 52). During the preparation of or innovative safety features through made this recommendation because the design certification rules for the design qualification testing for all applicants might want to complete ABWR and System 80+ designs, the advanced nuclear reactors. certain DAC before construction. DAC NRC staff and nuclear industry are special design certification rule representatives agreed on certain Probabilistic Risk Assessments ITAAC. DAC set forth processes and requirements for the performance and The proposed rule would also amend criteria for completing certain design completion of the inspections, tests, or the current § 52.79(b) (proposed information, such as information about analyses in ITAAC. In the design § 52.211(b)) to adopt a requirement to the digital instrumentation and control certification rulemakings, the submit a plant-specific PRA as part of system. DAC were originally written to Commission codified these ITAAC an application for a combined license. be verified as part of the normal, post- requirements into Section IX of the The current § 52.79(b) references combined license, ITAAC verification rules. The purpose of the requirement in § 52.47(a)(1)(v), which requires a design- process. paragraph (b) of proposed § 52.229 is to specific PRA within a design The Commission agrees with NEI’s make it clear that an applicant may certification application. This recommendation that combined license proceed at its own risk with design and amendment (§ 52.211(b)(2)) would applicants be permitted to demonstrate procurement activities subject to require an application for a combined DAC completion as part of the ITAAC, and that a licensee may proceed license to contain a plant-specific PRA combined license application, for at its own risk with design, that covers all of the nuclear plant several reasons. First, completion of the procurement, construction, and design, including site-specific design design matters covered by DAC before preoperational testing activities subject features (e.g., the ultimate heat sink). If the issuance of a combined license is to an ITAAC, even though the NRC may the combined license application consistent with the Commission’s not have found that any particular referenced a certified design, this original concept for design certification ITAAC has been successfully amendment (§ 52.211(b)(5)) would and issuance of a combined license. completed. Paragraph (c) of proposed require the design-specific PRA to be When it adopted 10 CFR part 52, the § 52.229 requires the licensee to notify updated to include site-specific design Commission intended that a design the NRC that the required inspections, features and to account for any design certification contain final and complete tests, and analyses in the ITAAC have changes. In a letter dated April 3, 2001 design information. Allowing a finding been completed and that the acceptance (comment 11.1a), NEI stated ‘‘we agree of acceptable completion of DAC before criteria have been met. Paragraph (d) on the NRC vision for a plant-specific issuance of a combined license is, simply states the options that a licensee PRA at COL that supplements the DC therefore, consistent with the will have in the event that it is PRA with any changes that affect the DC Commission’s original intent. Second, determined that any of the acceptance PRA plus site-specific (interface) design completion of DAC before issuance of criteria in the ITAAC have not been met. information.’’ the combined license is consistent with Finally, paragraph (h) of § 52.231 states The purpose of the requirement for a the Commission’s goal of resolving that ITAAC do not, by virtue of their plant-specific PRA is to identify and issues before construction. Determining inclusion in the DCD, constitute address potential design and operational whether DAC have been successfully regulatory requirements after the vulnerabilities, gain insights about the completed before issuance of the licensee has received authorization to risk of the design, assess the balance combined license avoids the possibility load fuel or for renewal of the license. between preventive and mitigative that improperly completed DAC will However, subsequent modifications features in the design, to determine result in the construction of improperly must comply with the design quantitatively whether the design designed structures, systems, and descriptions in the design control represents a reduction in risk over components. Finally, the Commission document unless the applicable current operating plants, and to believes that completion of DAC before requirements in the current § 52.97 and determine how the risk associated with issuance of the combined license will Section VIII of the design certification the new design relates to the enhance public confidence in the rules have been complied with. Commission’s safety goals. Accordingly, overall licensing process because the In a letter dated April 3, 2001 the Commission proposes to amend public will have an opportunity to (comment 23), NEI stated ‘‘consider § 52.211(b) to require an application for challenge whether the design has been incorporating DCR general provisions a combined license to contain a plant- properly completed before construction into subpart C as appropriate.’’ The specific PRA. begins. Accordingly, the Commission Commission has decided to add these proposes that a finding of successful ITAAC requirements to proposed Resolution of ITAAC completion of DAC may be made when § 52.229 because it believes that these The proposed rule would amend the a combined license is issued, if the provisions embody general principles current § 52.79(c) (proposed combined license applicant that are applicable to all holders of § 52.211(c)), current § 52.97(a) demonstrates that the DAC have been combined licenses. (proposed § 52.227(a)), current § 52.99 successfully completed. This new (proposed § 52.229(e)), and current process would also allow findings on Commission Finding on Acceptance §§ 52.103(a) and (g) (proposed successful completion of inspections or Criteria §§ 52.231(a) and (g)) to provide an tests of components procured before the The proposed rule would amend the applicant for a combined license with a issuance of the combined license. current § 52.83 (proposed § 52.215) and process for resolving certain acceptance The proposed rule would also amend the current § 52.99 (proposed criteria in one or more of the ITAAC the current § 52.99 (proposed § 52.229 § 52.229(e)) to clearly state the
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Commission’s determination that the understanding that the reference to ‘‘the Combined License Change Process Commission’’ in amended § 52.99 is to be NRC staff should be responsible for The proposed rule would amend the read as authorizing the Commission to ensuring (through its inspection and current § 52.97 (proposed § 52.227) to delegate to the Staff the responsibility for audit activities) that the combined clarify the applicability of the change overseeing ITAAC performance during the license holder performs and documents processes in 10 CFR part 50 and Section period of facility construction; and further the completion of inspections, tests and VIII of the design certification rules in analyses in the ITAAC. Currently, that this is the Commission’s intention. Responsibility for the pre-operational finding 10 CFR part 52 to a combined license. § 52.99 states that ‘‘the Commission This amendment will add § 52.227(c), shall ensure that the required of acceptance criteria conformance would, of course, be the responsibility of the which states that the change processes inspections, tests, and analyses are in 10 CFR part 50 apply to a combined performed and, prior to operation of the Commission, as reflected in both amended license that does not reference a design facility, shall find that the prescribed §§ 52.99 and 52.103(g). certification rule. This amendment will acceptance criteria are met.’’ When part The proposed rule is consistent with also add § 52.227(d), which states that 52 was first adopted by the Commission NUMARC’s recommendation. the change processes in Section VIII of in 1989 (54 FR 15372, April 18, 1989), the design certification rules apply to § 52.99 provided that the NRC staff shall The requirements in the proposed changes within the scope of the ensure that the inspections, tests and § 52.229(e) will be limited to the referenced certified design. However, if analyses in the ITAAC are performed, responsibilities of the NRC staff. The the proposed change affects the design and did not refer to the Commission staff will ensure that the inspections, information that is outside of the scope finding on acceptance criteria being tests, and analyses in the ITAAC have met. The requirement for a Commission been performed and will publish notices of the design certification rule, the part finding on acceptance criteria was in the Federal Register of the successful 50 change processes apply unless the contained in § 52.103(g). The completion of inspections, tests, and change also affects the design certification information. For that Commission adopted the current analyses. The NRC staff will perform situation, both change processes may language of § 52.99 in 1992 (57 FR periodic inspections during apply. 60975, December 23, 1992) to reflect construction of the facility and In a letter dated November 13, 2001 changes to Section 185 of the AEA made implementation of the licensee’s (comment 21(a)(2)), NEI recommended by Congress in the Energy Policy Act of operational programs, e.g., emergency that proposed §§ 52.227(c) and (d)(2) 1992 (1992 EPA), which states: planning and training. The NRC staff state that changes outside the scope of will issue reports on these inspections Following issuance of the combined a certified design are subject to ‘‘the license, the Commission shall ensure that the and will make these reports publically applicable change control requirements prescribed inspections, tests, and analyses available. At the conclusion of are performed and, prior to operation of the in 10 CFR part 50, e.g., 10 CFR 50.59, construction, the staff will make a 50.54 or 50.90.’’ The Commission has facility, shall find that the prescribed recommendation to the Commission on acceptance criteria are met. decided to propose this amendment to its assessment of the licensee’s Thus, the revisions to § 52.99 adopted clarify which change processes are completion of ITAAC. If the applicable to a combined license and by the Commission in 1992 simply Commission determines that all of the reflect the language of the 1992 EPA. this amendment is consistent with NEI’s acceptance criteria in the ITAAC for the recommendation. However, the Commission does not combined license have been met, it will believe that Congress, by adopting make the finding required under Design Certifications for ABWR, System language in section 185 stating that the proposed § 52.231(g). 80+, and AP600 Commission shall ensure that the Consistent with the language in The proposed rule would amend ITAAC are performed, intended to alter the Commission’s determination that proposed § 52.229(e), the proposed rule paragraphs VI.B.4, 5, and 6 of the three the NRC staff is responsible for ensuring would also amend the current § 52.83 design certification rules in 10 CFR part that ‘‘the required inspections, tests and (proposed § 52.215(c)) to state that the 52, Appendices A, B, and C (for U.S. analyses in the ITAAC are performed,’’ requirements in 10 CFR part 50 that are ABWR, System 80+, and AP600 designs, and by doing so alter the Commission’s applicable to holders of operating respectively), by substituting the phrase long-standing delegation of inspection licenses become applicable to holders of ‘‘but only for that plant’’ for the and oversight activities to the NRC staff. combined licenses after the erroneous phrase ‘‘but only for that For these reasons, the Commission Commission’s finding of successful proceeding’’ (emphasis added). The new proposes that § 52.99 (proposed ITAAC completion under current phrase correctly characterizes the scope § 52.229(e)) state that the NRC staff shall § 52.103(g) (proposed § 52.231(g)), rather of issue resolution in three situations. be responsible for ensuring that than referring to the Commission Paragraph VI.B.4 describes how issues inspections, tests and analyses in the finding under the current § 52.99. As associated with a design certification ITAAC have been performed. The discussed above, the Commission’s 1992 rule are resolved when an exemption requirement for a Commission finding rulemaking amended § 52.99 to refer to has been granted for a plant referencing on acceptance criteria will continue to the Commission’s finding of ITAAC the design certification rule. Paragraph be addressed separately in § 52.103(g) completion, and amended § 52.83 to VI.B.5 describes how issues are resolved (proposed § 52.231(g)). refer to the Commission’s finding under when a plant referencing the design In a letter dated February 22, 1993, § 52.99. Inasmuch as the Commission certification rule obtains a license the Nuclear Management and Resources finding and authorization of operation amendment for a departure from Tier 2 Council, Inc. (NUMARC) stated: would be addressed in proposed information. Paragraph VI.B.6 describes § 52.231(g), it follows that proposed how issues are resolved when the There is nothing in Title XXVIII or its § 52.215(c) should refer to the applicant or licensee departs from the legislative history which compels a change in the Staff responsibilities from that reflected Commission’s authorization of Tier 2 information on the basis of in prior § 52.99. Indeed, any other operation under § 52.231(g) rather than paragraph VIII.B.5, which waives the implementation of § 52.99 would be wholly the NRC staff’s activities under requirement to get NRC approval. Thus, unworkable. Accordingly, it is our proposed § 52.229(e). once a matter (e.g., an exemption in the
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case of paragraph VI.B.4) was addressed control requirements are structured in entity, dedication, defect, and for a specific plant referencing a design the design certification rules, certain substantial safety hazard in § 21.3. In certification rule, the adequacy of that definitions contained in § 50.59 are not addition, the proposed rule would matter for that plant would not necessary for or applicable to 10 CFR amend § 21.21 to clearly state when a ordinarily be subject to challenge in any part 52 and are not being included in director or responsible officer subject to subsequent proceeding or action (such this proposed rule. One definition that 10 CFR part 21 must notify the as an enforcement action) listed in the the Commission is including is the Commission that the director or officer introductory portion of paragraph IV.B, definition from the new § 50.59 for a has information reasonably indicating a but there would not be any issue ‘‘departure from a method of failure to comply or a defect affecting resolution on that subject matter for any evaluation,’’ which is appropriate to the construction or operation of a other plant. Unfortunately, the three include in this rulemaking so that the facility or an activity that is subject to design certification rules use the phrase eighth criterion in Section VIII.B.5.b of the licensing requirements under 10 ‘‘but only for that proceeding,’’ which the design certification rules will be CFR part 52 or affecting a basic may lead to the erroneous conclusion implemented as intended. component supplied for a facility or an that issue resolution exists only in the activity that is subject to the licensing proceeding in which the matter was B. 10 CFR Part 2, Rules of Practice for requirements under 10 CFR part 52. The approved and/or adjudicated, and not in Domestic Licensing Proceedings and Commission notes that a supplier of all subsequent proceedings for that Issuance of Orders safety-related analyses and services to a plant. The proposed rule would amend licensee under part 52 is subject to part In letters dated November 12, 2001, §§ 2.110, 2.400, 2.401, 2.402, 2.403, 21, inasmuch as such services constitute and November 13, 2001, respectively, 2.404, 2.406, 2.500, 2.501, and 2.502 to ‘‘basic components;’’ this is no different General Electric Company and correct references to former 10 CFR part than the applicability of part 21 to a Westinghouse Electric Company 52 appendices that have been supplier of such analyses and services reiterated earlier recommendations the redesignated as subparts. to a licensee under part 50. two companies had made that Sections VI.B.4 and 5 of the design certification C. 10 CFR Part 20, Standards for Early Site Permits rules state that exemptions and license Protection Against Radiation With respect to early site permits, the amendments have finality ‘‘but only for The proposed rule would amend Commission proposes to use a different that plant.’’ For the reasons discussed § 20.1002 to clarify that the regulations approach, such that the requirements of above, the Commission agrees, and the in 10 CFR part 20 also apply to licenses part 21 do not apply to applicants for Commission proposes to substitute the issued under 10 CFR part 52. This early site permits, or holders of early phrase ‘‘but only for that plant,’’ in conforming change was inadvertently site permits so long as the early site order to clarify that issue resolution on overlooked when the Commission permit is not referenced in any license a matter applies in subsequent originally promulgated 10 CFR part 52. application. During the pendency of the proceedings for that plant. early site permit application before the Each of the design certification rules D. 10 CFR Part 21, Reporting of Defects NRC, the applicant would be required in 10 CFR part 52 (Appendices A, B, and Noncompliance by 10 CFR 50.9, ‘‘Completeness and and C) includes a Section VIII on change The proposed rule would amend accuracy of information,’’ to notify the processes. These processes apply to §§ 21.2, 21.3, and 21.21 to clarify the Commission of any information having changes depending upon the category of applicability of 10 CFR part 21 to a ‘‘significant implication for public design information affected. For plant- individuals, corporations, partnerships, health and safety or the common specific tier 2 information, the change or other entities doing business within defense and security’’ with respect to process established in the rules mirrors, the United States, and directors and the matters covered in the application, in large part, that in the former 10 CFR responsible officers of such pursuant to proposed § 52.111. Failure 50.59. The proposed rule would amend organizations, that hold a permit or to abide by the completeness and paragraph VIII.B.5 of the design license under 10 CFR part 52. These accuracy requirements in § 50.9 would certification rules to conform the conforming changes would correct an subject the applicant to potential terminology in the 50.59-like change oversight when the Commission first criminal liability under § 52.113 process to that used in the revised adopted 10 CFR part 52, to ensure that (proposed § 52.403). In addition, under § 50.59. This amendment deletes the requirements in 10 CFR part 21 current § 52.9, the early site permit references to unreviewed safety apply to applicants for, and holders of applicant would be subject to penalties question and safety evaluation, and licenses under 10 CFR part 52, as well for deliberate misconduct, including conforms the evaluation criteria as to suppliers of basic components to submission to the NRC of information concerning when prior NRC approval is such licensees. known to be incomplete or inaccurate in needed. Also, a definition has been some material aspect. Finally, during added (paragraph II.G) for ‘‘departure Combined Licenses, Manufacturing the pendency of an early site permit from a method of evaluation’’ to support Licenses, Duplicate Design Licenses application, the application has no the evaluation criterion in VIII.B.5.b(8). The proposed rule would make 10 operative effect with respect to issue In an earlier rulemaking (see 64 FR CFR part 21 applicable to applicants for, resolution under § 52.39; consequently, 53582; October 4, 1999), the and holders of combined licenses, an early site permit application itself Commission revised § 50.59 to manufacturing licenses, and duplicate could not result in a ‘‘substantial safety incorporate new thresholds for design licenses under 10 CFR part 52, hazard’’ by virtue of the application permitting changes to a plant as and suppliers of basic components to being referenced in a nuclear power described in the final safety analysis such applicants and holders, by plant licensing proceeding. Therefore, report without NRC approval. For amending paragraphs (a), (b), and (c) of the Commission does not believe that consistency and clarity, similar changes § 21.2 regarding the scope of 10 CFR adopting the regulatory overlay of part are now being proposed for 10 CFR part part 21 and amending the definitions of 21 during the pendency of an early site 52 applicants or licensees. Because of basic component, commercial grade permit application is necessary to some differences in how the change item, critical characteristics, dedicating effectuate the Commission’s regulatory
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responsibilities under the AEA, as to its site (e.g., that the specified site Design Certification Rules amended, including providing parameter for seismic acceleration is Similar to the approach for early site reasonable assurance of adequate less than the projected acceleration due permit applicants and holders, the protection of public health and safety or to new information), the concern should Commission proposes that the common defense and security. be reported to the NRC so that it may requirements in part 21 should not The Commission does not believe that be considered in the review of the apply to the applicant/vendor for a part 21 should apply to the early site application referencing the early site design certification (and/or its permit holder after the early site permit permit. This reporting attains special successors) during the pendency of its has been issued, but before the holder importance given the Commission’s design certification application. During has referenced the permit in a license proposal (see discussion in Section the pendency of the design certification application.2 With one exception, the III.A.8 on referencing an early site application, the applicant/vendor would early site permit does not authorize any permit) not to impose an updating be required by 10 CFR 50.9, action by the holder with respect to the ‘‘Completeness and accuracy of construction or operation of a nuclear requirement for early site permit information,’’ to notify the Commission power plant. The exception is when the information other than that related to of any information having a ‘‘significant early site permit authorizes the holder emergency preparedness. Accordingly, implication for public health and safety to conduct the site preparation activities the Commission concludes that the or the common defense and security’’ permitted under 10 CFR 50.10(e)(1) early site permit holder should be with respect to the matters covered in (commonly referred to as limited work subject to part 21 once it references the the application, pursuant to proposed authorization–1, or LWA–1, activities). permit in a license application. § 52.111. Failure to abide by the However, these activities are related to The Commission believes that site clearing and preparation, and do not completeness and accuracy changes to part 21 are unnecessary to requirements in § 50.9 would subject the permit any construction (including reflect these determinations with subsurface preparation) for ‘‘structures, applicant/vendor to potential criminal respect to early site permit applicants liability under § 52.113 (proposed systems and components which prevent and holders. A licensee’s reporting or mitigate the consequences of § 52.403). In addition, under current requirements in part 21 apply only with § 52.9, the applicant for a design postulated accidents that could cause respect to ‘‘basic components’’ used or undue risk to the health and safety of certification is subject to penalties for to be used in an NRC-licensed or deliberate misconduct, including the public.’’ Thus, the conduct of LWA– otherwise regulated facility. The safety- 1 activities do not appear to have any submission to the NRC of information related analyses and consulting services reasonable possibility of resulting in a known to be incomplete or inaccurate in supplied to an applicant for an early site ‘‘substantial safety hazard.’’ some material aspect. Finally, during Furthermore, the inherent nature of an permit appear to fall within the the pendency of a design certification early site permit is site-specific and not definition of ‘‘basic component,’’ in that application, the application has no susceptible to generic or wide-ranging they constitute ‘‘safety-related design operative effect with respect to issue applicability. For these reasons, the [and] analyses * * * associated with resolution under current § 52.63 Commission proposes that part 21 component hardware’’ (See 10 CFR 21.3, (proposed § 52.127); consequently, a should not apply to an early site permit ‘‘Basic component,’’ paragraph (3)). design certification application itself holder until the permit is referenced by Thus, part 21 could be interpreted as could not result in a ‘‘substantial safety a license applicant. applying to the early site permit holder hazard’’ by virtue of the application Once an early site permit holder immediately upon the permit’s being referenced in a nuclear power references the permit in a license issuance. However, there appears to be plant licensing proceeding. Therefore, application, the Commission believes little reasonable likelihood of a the Commission does not believe that that the holder should be subject to part ‘‘substantial safety hazard’’ unless and adopting the regulatory overlay of part 21. The Commission’s safety review of until the early site permit has been 21 during the pendency of a design a license application referencing an referenced by the permit holder in a certification application is necessary to early site permit is limited in license application. Once the early site effectuate the Commission’s regulatory accordance with §§ 52.39 and 52.79 permit has been referenced, the responsibilities under the AEA, as (proposed § 52.211), under the precept potential for a substantial safety hazard amended, including providing that the site parameters, terms, and clearly exists if a known defect in site reasonable assurance of adequate conditions which define the envelope parameters, terms, or conditions protection to public health and safety or for safe siting of a nuclear power plant defining the envelope for safe plant common defense and security. have been determined by the NRC in the operation is not disclosed, and a plant The Commission also believes that the early site permit proceeding. If the early is designed, constructed, and allowed to reporting requirements in part 21 site permit holder discovers a operate which does not reflect the actual should not apply to the design certification applicant/vendor after the significant safety concern with respect limiting parameters and conditions of Commission issuance of a final design the site. Thus, no changes to part 21 are 2 certification rule but before the design The Commission would not permit a license necessary to reflect the Commission’s applicant to reference an early site permit which it certification rule is referenced by at does not hold (or has rights to the permit contingent intent. upon a NRC decision to issue a license whose least one applicant/licensee (nor should application references the early site permit). To The Commission also proposes that either §§ 52.9 or 52.111 be modified to otherwise permit referencing of an early site permit part 21 apply to suppliers of safety- make them applicable to the design by a non-holder would destroy the commercial related analyses and services to an early certification applicant/vendor). The value of the permit, and would prevent any entity from seeking an early site permit. This would site permit holder in the same manner Commission does not believe that a frustrate the Commission’s regulatory objective of and extent as part 21 applies to the early design certification rule would providing early regulatory approval of siting, site permit holder. Such suppliers reasonably result in a ‘‘substantial safety emergency preparedness, and environmental would be subject to part 21 only after hazard’’ so long as the design matters. Since the early site permit is a license, the relevant requirements of part 21 are those the early site permit holder references certification rule is not actually applicable to a licensee. the permit in a license application. referenced in a license application (and
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thereafter incorporated by reference into associated with component hardware processes to which the backfitting a license). It is true that, unlike an early whether these services are performed by provisions in § 50.109 apply are site permit, a design certification rule is the component supplier or not.’’ If the standard design approvals, combined of general applicability and that a design certification applicant/vendor licenses, manufacturing licenses, and complete nuclear power plant design provides the certified design to a license duplication design licenses issued could be provided by an entity other applicant pursuant to contract or under subparts E, G, H, and I of 10 CFR than the original design certification agreement, the design certification part 52, respectively. The backfitting applicant/vendor (see § 52.73 (proposed applicant/vendor ‘‘supplies’’ the basic requirement in § 50.109 does not apply § 52.203)). Nonetheless, unless the other component, see § 21.3. However, there to early site permits, early site reviews, entity provides a design which is is a possibility that an entity other than and standard design certifications subsequently referenced in an NRC the applicant/vendor of a design which issued under subparts A, B, and D, license application, there is no was certified in a design certification respectively, in as much as these ‘‘substantial safety hazard’’ created rule may supply the complete plant licensing processes have their own (although the Commission design to a referencing license special backfitting provisions (the acknowledges that the entity may incur applicant. See § 52.73 (proposed special backfit requirements set forth in significant redesign costs if the entity § 52.203). For these reasons, the § 52.39, current sections 5 and 6 of completes substantial parts of the design Commission is considering a change to Appendix Q (proposed § 52.47), and before submission of the application, the definition of ‘‘supplying or current § 52.63(a) (proposed § 52.127(a)) only to find upon submission of the supplies’’ in § 21.3 to ensure that a apply to early site permits, early site application that there were significant design certification applicant/vendor reviews, and standard design defects in the certified design). Upon who does not pursuant to contract certifications, respectively). Section weighing of all relevant factors, the supply to a license applicant the 50.109(a)(1)(vii) sets forth the Commission proposes that part 21 complete design for the design applicability of these special backfitting should not apply to the design certification, is also subject to part 21 provisions for a combined license that certification applicant/vendor until a for this special situation. references an early site permit, early site final, Commission-approved design For the reasons discussed earlier, the review, or design certification rule. certification rule is referenced by at Commission believes that it is The proposed rule would also remove least one applicant/licensee. reasonable and appropriate to limit the appendices M, N, O, and Q from 10 CFR However, the Commission believes applicability of part 21 such that it is part 50. These appendices were that once a design certification rule is applicable once the design certification transferred to 10 CFR part 52 when it referenced by an applicant, the design rule has been referenced by an was first promulgated (54 FR 15372; certification applicant/vendor should be applicant, permit holder, or licensee. April 18, 1989). However, the subject to part 21. The Commission’s Therefore, although the potential ambit Commission failed to remove those safety review of a license application of part 21 extends to an applicant/ appendices from 10 CFR part 50, though referencing a design certification rule is vendor of a design certification after the Commission intended to do so (see limited in accordance with § 52.63 issuance of a design certification rule, 54 FR 15385; April 18, 1989). (proposed § 52.127) and § 52.79 the Commission has decided not to F. 10 CFR Part 51, Environmental (proposed § 52.211). If the design extend the applicability of part 21 in Protection Regulations for Domestic certification applicant/vendor has such a fashion. By contrast, once the Licensing and Related Regulatory discovered a significant safety concern design certification rule has been Functions with respect to its certified design, it referenced, the potential for a should be reported to the NRC so that substantial safety hazard exists if a The proposed rule would amend it may be considered in the review of known defect in a design certification paragraph (b)(6) of § 51.20, ‘‘Criteria for the application referencing the design rule is not disclosed, the remainder of and identification of licensing and certification rule. While this places a the plant is designed, the plant regulatory actions requiring continuing obligation on the design constructed, and subsequently allowed environmental impact statements,’’ to certification applicant/vendor to to operate. Accordingly, the make clear that issuance of a monitor whether its design has been Commission concludes that part 21 manufacturing license requires referenced in a license application, as a should apply to the design certification preparation of an environmental impact practical matter it is likely that the applicant/vendor after the design statement or a supplement to an license applicant will have certification rule has been referenced by environmental impact statement. contractually engaged the design a license applicant. Finally, the Paragraph (b), which defines types of certification applicant/vendor prior to Commission concludes that part 21 actions that require an environmental submitting the application. In any event, should apply to suppliers of safety- impact statement or a supplement to an the Commission concludes that the related analyses and services to a design environmental impact statement would design certification applicant/vendor certification applicant/vendor in the replace the current reference to should be subject to part 21 after its same manner and extent as part 21 Appendix M with a reference to subpart design certification has been referenced applies to the design certification H of 10 CFR part 52 which is the by an applicant for a license. applicant. proposed subpart that sets forth the The Commission believes that, with process for manufacturing licenses, E. 10 CFR Part 50, Domestic Licensing one exception, changes to part 21 are formerly contained in Appendix M. unnecessary to reflect these of Production and Utilization Facilities determinations with respect to design The proposed rule would amend G. 10 CFR Part 72, Licensing certification applicants/vendors. paragraph (a)(1) of § 50.109 (backfit rule) Requirements for the Independent Designs submitted for certification are to clearly state the applicability of the Storage of Spent Nuclear Fuel and High- ‘‘basic components,’’ as defined in backfit rule to some of the licensing Level Radioactive Waste § 21.3, as are any supporting analyses processes 10 CFR part 52 and the date The proposed rule would amend inasmuch as they constitute ‘‘safety- that backfit protection commences for § 72.210 to indicate that a general related design [and] analysis * * * those licensing processes. The licensing license would be issued for the storage
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of spent fuel in an independent spent the Commission also requests comments values for the site, e.g., the ground force fuel storage installation at power reactor on the following questions: acceleration of a defined earthquake, sites to persons authorized to possess or 1. Should the final rule include an flood level, or the atmospheric operate nuclear power reactors under a updating requirement for other than dispersion value. The ‘‘design combined license or duplicate design emergency preparedness information parameters’’ for an early site permit license under 10 CFR part 52. The and what portions of the early site would include the postulated values for proposed rule would also amend the permit (ESP) should be subject to the thermal power level, radiological requirements in § 72.218(b) regarding an updating requirement? Also, if an effluents, and type of cooling system for application for termination of a reactor updating requirement is adopted, in the facility. ‘‘Design characteristics’’ for operating license and the removal of the what manner could an interested person a design certification would be the spent fuel stored at the reactor site to challenge the updated information? actual values for the design, e.g., indicate that this provision also applies (refer to § 52.39(a)) thermal power level or building height. to applications for termination of a 2. Should the final rule include ‘‘Site parameters’’ for a design combined license or duplicate design revisions to 10 CFR part 52 to: (1) certification would include the license. Distinguish between site characteristics, postulated values for floods, ground site parameters, design characteristics, force acceleration of a postulated H. 10 CFR Part 73, Physical Protection and design parameters; (2) require the earthquake, and tornado wind speeds. of Plants and Materials Commission to specify the site 3. Are there terms and conditions for The proposed rule would amend characteristics and design parameters an ESP that can only be fulfilled after § 73.1(b) to clarify that the regulations in when issuing early site permits; (3) issuance of the referencing combined 10 CFR part 73 also apply to licenses require the design certification rule to license, such that ‘‘have been met’’ issued under 10 CFR part 52. specify the site parameters and design should be changed to ‘‘will be met,’’ or characteristics for the design; (4) require ‘‘have been and will be met’’? (refer to I. 10 CFR Part 140, Financial Protection a combined license applicant proposed § 52.211(a)(1)) Requirements and Indemnity referencing an early site permit to 4. Should the final rule include a Agreements demonstrate that either the design of the requirement in § 50.34(a) for a The proposed rule would amend nuclear power plant or the site construction permit application that §§ 140.2, 140.10, 140.11, and 140.13 to parameters and design characteristics of references an ESP to demonstrate that correct the language to note that holders a referenced design certification rule fall the design of the facility falls within the of combined licenses issued under 10 within the design parameters and site site parameters of the ESP? (refer to CFR part 52 are required to conform characteristics of the early site permit; proposed § 52.211(a)(1)) with the Commission’s financial and (5) require a combined license 5. Should the final rule include a protection requirements implementing applicant referencing a design requirement in 10 CFR part 50 to the Price-Anderson Act (Section 170 of certification rule to demonstrate that the perform testing to qualify advanced the Atomic Energy Act of 1954). The site parameters and design reactor designs before licensing? The proposed rule would also add new characteristics of the design certification purpose of this testing requirement §§ 140.11(c) and 140.13(b). Section rule fall within either: (i) The site would be to demonstrate that new or 140.11(c) would specify that a holder of characteristics of a site, or (ii) the site innovative safety features will perform a combined license must have and characteristics and design parameters of as predicted in an applicant’s safety maintain financial protection when the a referenced early site permit? analysis report, that effects of systems Commission authorizes operation under Currently, 10 CFR art 52 uses the interactions have been found § 52.231(g). Section 140.13(b) would various terms, ‘‘site parameters,’’ acceptable, and to provide sufficient require that each holder of a combined ‘‘postulated site parameters,’’ ‘‘site data for analytical code validation, as license who is also the holder of a characteristics,’’ ‘‘physical required by proposed §§ 52.107(b) and license under 10 CFR part 70 characteristics,’’ and ‘‘the parameters 52.211(b). authorizing ownership, possession, and specified in the early site permit’’ See, 6. Should the final rule include a storage only of special nuclear material e.g., §§ 52.17, 52.18, 52.21, 52.47 revision to the current § 52.63 (proposed at the site of the nuclear reactor have (proposed § 52.107), § 52.79 (proposed § 52.127) to allow the original design and maintain financial protection in the § 52.211). In some cases, it appears that certification applicant to petition the amount of $1,000,000. Proof of financial different terms are used to apply to the Commission for rulemaking to amend protection would be required to be filed same concept, e.g., ‘‘site parameters,’’ the design certification rule to with the Commission in the manner and ‘‘postulated site parameters.’’ In incorporate ‘‘beneficial changes,’’ specified prior to issuance of the license other cases, information which would including improvements in safety, and/ under 10 CFR part 70. appear to constitute ‘‘site parameters’’ as or design changes that would used in the current rule is not ‘‘significantly improve efficiency, J. 10 CFR Part 170, Fees for Facilities, characterized as such, e.g. reliability and economics.’’ Refer to Materials, Import and Export Licenses, § 52.17(a)(1)(i) through (viii). letters from Steven A. Hucik, GE and Other Regulatory Services Under To address these inconsistencies, the Nuclear Energy (March 30, 2002) and the Atomic Energy Act of 1954, as Commission is considering amending 10 Ronald L. Simard, Nuclear Energy Amended CFR part 52, including proposed Institute (March 22, 2002). The proposed rule would amend subparts A, D, and G, to use the terms: 7. Should 10 CFR part 21 apply to: (a) § 170.2 to clarify the applicability of the ‘‘site characteristics,’’ ‘‘site parameters,’’ A holder of an early site permit, but regulations in 10 CFR part 170 to the ‘‘design characteristics,’’ and ‘‘design only after the holder references the licensing processes in 10 CFR parts 50 parameters,’’ to set forth in clear and permit in a license application, and (b) and 52. unambiguous terms the Commission’s an applicant/vendor of a design which requirements on early site permits, is the subject of a design certification IV. Specific Requests for Comments design certifications, and combined rule, but only after the design In addition to the general invitation to licenses. ‘‘site characteristics’’ would be certification rule is first referenced in a submit comments on the proposed rule, the actual physical and demographic license application. In both cases, the
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Commission believes that there is no V. Availability of Documents Rulemaking Website (Web). The reasonable possibility of a ‘‘substantial NRC’s interactive rulemaking Website is safety hazard’’ until either the early site The NRC is making the documents located at http://ruleforum.llnl.gov. permit or design certification rule is identified below available to interested These documents may be viewed and referenced. The Commission seeks persons through one or more of the downloaded electronically via this public comment on the Commission’s following methods as indicated. Website. proposed basis for this proposal, and Public Document Room (PDR). The NRC’s Public Electronic Reading whether there are other factors and NRC Public Document Room is located policy considerations, either in support Room (PERR). The NRC’s public at 11555 Rockville Pike, Rockville, electronic reading room is located at of, or in opposition to, the Maryland. Commission’s proposal. www.nrc.gov/reading-rm.html.
Document PDR Web PERR
Comments on the draft rule language: General Electric ...... X X ML013180207 Entergy ...... X X ML013200006 Nuclear Energy Institute ...... X X ML013200158 Westinghouse ...... X X ML013200173 Exelon ...... X X ML020040187 Regulatory History of Design Certification 3 ...... X ...... ML003761550
VI. Plain Language these licensing processes. In addition, IX. Paperwork Reduction Act The Presidential memorandum dated this proposed rule would amend certain Statement June 1, 1998, entitled ‘‘Plain Language portions of the three design certification This proposed rule amends in Government Writing’’ directed that rules in 10 CFR part 52, appendices A, information collection requirements the Government’s writing be in plain B, and C (for U.S. ABWR, System 80+, contained in 10 CFR Part 52 that are language. This memorandum was and AP600 designs, respectively) Design subject to the Paperwork Reduction Act published on June 10, 1998 (63 FR certifications are not generic of 1995 (44 U.S.C. 3501 et seq). These 31883). In complying with this rulemakings in the sense that design information collection requirements directive, the NRC made editorial certifications do not establish standards have been submitted to the Office of changes to improve the organization and or requirements with which all Management and Budget for review and readability of the existing language of licensees must comply. Rather, design approval. The proposed changes to 10 the paragraphs being revised. These certifications are Commission approvals CFR parts 2, 20, 21, 50, 51, 72, 73, 140, of specific nuclear power plant designs types of changes are not discussed and 170 do not contain new or amended by rulemaking. Furthermore, design further in this document. The NRC information collection requirements. certification rulemakings are initiated requests comments on the proposed rule Existing requirements were approved by by an applicant for a design specifically with respect to the clarity the Office of Management and Budget, certification, rather than the NRC. For and effectiveness of the language used. approval number(s) 3150–0014, 3150– these reasons, the Commission Comments should be sent to the address 0035, 3150–0011, 3150–0021, 3150– concludes that this action does not listed under the ADDRESSES caption of 0132, 3150–0039, and 3150–0002. constitute the establishment of a the preamble. The burden to the public for the standard that contains generally information collections in 10 CFR part VII. Voluntary Consensus Standards applicable requirements. 52 is estimated to average 3,429 hours The National Technology Transfer VIII. Environmental Impact: per response. This includes the time for and Advancement Act of 1995, Public Categorical Exclusion reviewing instructions, searching Law 104–113, requires that Federal The NRC has determined that the existing data sources, gathering and agencies use technical standards that are changes made in this proposed rule fall maintaining the data needed, and developed or adopted by voluntary within the types of action described in completing and reviewing the consensus standards bodies unless categorical exclusions 10 CFR information collection. The U.S. using such a standard is inconsistent 51.22(c)(1), (c)(2), and (c)(3). Therefore, Nuclear Regulatory Commission is with applicable law or is otherwise neither an environmental impact seeking public comment on the impractical. In this proposed rule, the statement nor an environmental potential impact of the information NRC is revising the procedural assessment has been prepared for this collections contained in the proposed requirements for early site permits, proposed regulation.4 rule and on the following issues: standard design certifications, and 1. Is the proposed information combined licenses for nuclear power 4 When 10 CFR part 52 was promulgated in 1989, collection necessary for the proper plants to make certain corrections and the NRC determined that the regulation met the performance of the functions of the changes based on the experience of the eligibility criteria for the categorical exclusion set NRC, including whether the information previous design certification reviews forth in 10 CFR 51.22(c)(3). As stated in the Federal will have practical utility? Register notice for the final rule (54 FR 15384, April 2. Is the estimate of burden accurate? and on discussions with stakeholders on 18, 1989), ‘‘It makes no substantive difference for the purpose of the categorical exclusion that the 3. Is there a way to enhance the 3 The regulatory history of the NRC’s design amendments are in a new 10 CFR part 52 rather quality, utility, and clarity of the certification reviews is a package of 100 documents than in 10 CFR part 50. The amendments are, in information to be collected? that is available in NRC’s PERR and in the PDR. fact, amendments to the 10 CFR part 50 procedures 4. How can the burden of the This history spans a 15-year period during which and could have been placed in that part.’’ The the NRC simultaneously developed the regulatory categorical exclusion for the current proposed information collection be minimized, standards for reviewing these designs and the form change to 10 CFR part 52 is consistent with the including the use of automated and content of the rules that certified the designs. original categorical exclusion determination. collection techniques?
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Send comments on any aspect of The Commission believes that, as indicated under the ADDRESSES these proposed information collections, practically speaking, there would be no heading. including suggestions for reducing the change in the burden on future XI. Regulatory Flexibility Certification burden, to the Records Management applicants resulting from these Branch (T–6 E6), U.S. Nuclear amendments. This is because the In accordance with the Regulatory Regulatory Commission, Washington, information required by the proposed Flexibility Act (5 U.S.C. 605(b)), the DC 20555–0001, or by Internet rule would, in all likelihood, be Commission certifies that this rule will electronic mail to requested by the NRC staff during the not, if promulgated, have a significant [email protected]; and to the review of the application if these economic impact on a substantial Desk Officer, Office of Information and requirements were not adopted. The number of small entities. This proposed Regulatory Affairs, NEOB–10202, staff could not perform an adequate rule affects only the licensing of nuclear (3150–0151, 3150–0011, and 3150– review of an application referencing an power plants. The companies that will 0039), Office of Management and early site permit without reviewing the apply for an approval, certification, Budget, Washington, DC 20503. most up-to-date emergency planning permit, site report, or license in Comments to OMB on the information information. Therefore, if this updated accordance with the regulations affected collections or on the above issues information was not required in the by this proposed rule do not fall within should be submitted by August 4, 2003. application, the staff would be the scope of the definition of ‘‘small Comments received after this date will compelled to request the information entities’’ set forth in the Regulatory be considered if it is practical to do so, from the applicant in order to make a Flexibility Act or the size standards but assurance of consideration cannot finding that there is reasonable established by the NRC (10 CFR 2.810). be given to comments received after this assurance that adequate protective XII. Backfit Analysis date. measures can and will be taken in the event of a radiological emergency. The NRC has determined that the Public Protection Notification Likewise, if the Commission did not backfit rule does not apply to this The NRC may not conduct or sponsor, require an updated PRA in an proposed rule; therefore, a backfit and a person is not required to respond application for a combined license analysis is not required for this to, a request for information or an referencing a certified design, the staff proposed rule because these information collection requirement would be compelled to request the amendments do not involve any unless the requesting document information from the applicant. The provisions that would impose backfits displays a currently valid OMB control Commission would need this as defined in 10 CFR 50.109. The number. information in order to assist it in proposed rule would revise the requirements for early site permits, X. Regulatory Analysis finding that the applicable requirements of 10 CFR part 50 have been met, and standard design certifications, and The Commission has prepared the in reviewing the licensee’s proposed combined licenses for nuclear power following draft regulatory analysis on inspections, tests, and analyses that the plants, so it would affect a potential the substantive changes in this proposed licensee must perform, and the applicant who might, in the future, regulation that could impose regulatory acceptance criteria that, if met, are apply for an early site permit, design burdens. The majority of the changes in necessary and sufficient to provide certification, or combined license. this proposed rule involve formatting, reasonable assurance that the facility However, the backfit rule does not apply reorganization, or process changes that has been constructed and will be because the proposed rule would not do not affect regulatory burden. These operated in conformity with the license, impose any modifications on a current types of changes are not addressed in the provisions of the Atomic Energy holder of an early site permit, certified this regulatory analysis, as they would Act, and the Commission’s rules and design, or combined license. not affect the burden on future regulations. List of Subjects applicants. For these reasons, the Commission The proposed rule contains two believes it is prudent to proceed with 10 CFR Part 2 amendments that appear to impose this proposed rulemaking. The addition Administrative practice and regulatory burdens on future applicants of these requirements for applicants for procedure, Antitrust, Byproduct for construction permits, combined construction permits, combined material, Classified information, licenses, and duplicate design licenses licenses, and duplicate design licenses Environmental protection, Nuclear who may file an application referencing is necessary to ensure the NRC staff can materials, Nuclear power plants and an early site permit or a certified design. meet its regulatory obligations. In reactors, Penalties, Sex discrimination, There are no current applicants who addition, giving future applicants Source material, Special nuclear would be burdened by the proposed notification up front that the staff material, Waste treatment and disposal. amendments. requires this information in the The first of these changes requires application will relieve them of a larger 10 CFR Part 20 applicants who reference an early site burden of having to compile the Byproduct material, Criminal permit to update and correct emergency information during the application penalties, Licensed material, Nuclear planning information and discuss review process when the Commission materials, Nuclear power plants and whether the new information materially requests the information to complete its reactors, Occupational safety and alters the bases for compliance with the review. The need to compile the health, Packaging and containers, applicable requirements. The second information during the review process Radiation protection, Reporting and change requires applicants who could impact the review schedule and record keeping requirements, Source reference a certified design to include a result in other unnecessary burdens on material, Special nuclear material, plant-specific probabilistic risk the applicant. Waste treatment and disposal. assessment (PRA) that uses the design- The Commission requests public specific PRA and is updated to account comment on the draft regulatory 10 CFR Part 21 for site-specific design information and analysis. Comments on the draft Nuclear power plants and reactors, any design changes. analysis may be submitted to the NRC Penalties, Radiation protection,
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Reporting and record keeping as amended; and 5 U.S.C. 553, the NRC B to part 52 of this chapter, a submittal requirements. is proposing to adopt the following under subpart B must be subject to amendments to 10 CFR parts 2, 20, 21, § 2.101(a) (2) through (4) to the same 10 CFR Part 50 50, 51, 52, 72, 73, 140, and 170. extent as if it were an application for a Antitrust, Classified information, permit or license. PART 2—RULES OF PRACTICE FOR Criminal penalties, Fire protection, * * * * * DOMESTIC LICENSING PROCEEDINGS Intergovernmental relations, Nuclear 3. Section 2.400 is revised to read as AND ISSUANCE OF ORDERS power plants and reactors, Radiation follows: protection, Reactor siting criteria, 1. The authority citation for part 2 Reporting and record keeping continues to read as follows: § 2.400 Scope of subpart. requirements. This subpart describes procedures Authority: Secs. 161, 181, 68 Stat. 948, 10 CFR Part 51 953, as amended (42 U.S.C. 2201, 2231); sec. applicable to licensing proceedings that 191, as amended, Pub. L. 87–615, 76 Stat. 409 involve the consideration in hearings of Administrative practice and (42 U.S.C. 2241); sec. 201, 88 Stat.1242, as a number of applications, filed by one procedure, Environmental impact amended (42 U.S.C. 5841); 5 U.S.C. 552. or more applicants pursuant to subpart statement, Nuclear materials, Nuclear Section 2.101 also issued under secs. 53, I of part 52 of this chapter, for licenses power plants and reactors, Reporting 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, to construct and operate nuclear power and record keeping requirements. 933, 935, 936, 937, 938, as amended (42 reactors of essentially the same design U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 10 CFR Part 52 2135); sec. 114(f), Pub. L. 97–425, 96 Stat. to be located at different sites. 2213, as amended (42 U.S.C. 10143(f)); sec. 4. Section 2.401 is revised to read as Administrative practice and follows: procedure, Antitrust, Backfitting, 102, Pub. L. 91–190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 Combined license, Early site permit, U.S.C. 5871). Sections 2.102, 2.103, 2.104, § 2.401 Notice of hearing on applications Emergency planning, Fees, Inspection, 2.105, 2.721 also issued under secs. 102, 103, under Subpart I of Part 52 for construction Limited work authorization, Nuclear 104, 105, 183i, 189, 68 Stat. 936, 937, 938, permits. power plants and reactors, Probabilistic 954, 955, as amended (42 U.S.C. 2132, 2133, (a) In the case of applications under risk assessment, Prototype, Reactor 2134, 2135, 2233, 2239). Section 2.105 also subpart I of part 52 of this chapter for siting criteria, Redress of site, Reporting issued under Pub. L. 97–415, 96 Stat. 2073 construction permits for nuclear power and record keeping requirements, (42 U.S.C. 2239). Sections 2.200–2.206 also reactors of the type described in § 50.22 issued under secs. 161 b, i, o, 182, 186, 234, Standard design, Standard design 68 Stat. 948–951, 955, 83 Stat. 444, as of this chapter, the Secretary will issue certification. amended (42 U.S.C. 2201 (b), (i), (o), 2236, notices of hearing under § 2.104. (b) The notice of hearing will also 10 CFR Part 72 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. state the time and place of the hearings Administrative practice and 101–410, 104 Stat. 90, as amended by section on any separate phase of the proceeding. procedure, Criminal penalties, 3100(s), Pub. L. 104–134, 110 Stat. 1321–373 5. In § 2.402, paragraph (a) is revised Manpower training programs, Nuclear (28 U.S.C. 2461 note). Sections 2.600–2.606 to read as follows: materials, Occupational safety and also issued under sec. 102, Pub. L. 91–190, 83 Stat. 853, as amended (42 U.S.C. 4332). health, Penalties, Radiation protection, § 2.402 Separate hearings on separate Sections 2.700a, 2.719 also issued under 5 issues; consolidation of proceedings. Reporting and record keeping U.S.C. 554. Sections 2.754, 2.760, 2.770, requirements, Security measures, Spent 2.780 also issued under 5 U.S.C. 557. Section (a) In the case of applications under fuel, Whistle blowing. 2.764 also issued under secs. 135, 141, Pub. subpart I of part 52 of this chapter for L. 97–425, 96 Stat. 2232, 2241 (42 U.S.C. construction permits for nuclear power 10 CFR Part 73 10155, 10161). Section 2.790 also issued reactors of a type described in § 50.22 of Criminal penalties, Export, Hazardous under sec. 103, 68 Stat. 936, as amended (42 this chapter, the Commission or the materials transportation, Import, U.S.C. 2133), and 5 U.S.C. 552. Sections presiding officer may order separate 2.800 and 2.808 also issued under 5 U.S.C. hearings on particular phases of the Nuclear materials, Nuclear power plants 553. Section 2.809 also issued under 5 U.S.C. and reactors, Reporting and record 553, and sec. 29, Pub. L. 85–256, 71 Stat. 579, proceeding, such as matters related to keeping requirements, Security as amended (42 U.S.C. 2039). Subpart K also the acceptability of the design of the measures. issued under sec. 189, 68 Stat. 955 (42 U.S.C. reactor, in the context of the site 2239); sec. 134, Pub. L. 97–425, 96 Stat. 2230 parameters postulated for the design; 10 CFR Part 140 (42 U.S.C. 10154). Subpart L also issued environmental matters; or antitrust Criminal penalties, Extraordinary under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). aspects of the application. Subpart M also issued under sec. 184 (42 nuclear occurrence, Insurance, * * * * * Intergovernmental relations, Nuclear U.S.C. 2234) and sec. 189, 68 stat. 955 (42 U.S.C. 2239). Appendix A also issued under 6. Section 2.403 is revised to read as materials, Nuclear power plants and sec. 6, Pub. L. 91–560, 84 Stat. 1473 (42 follows: reactors, Reporting and record keeping U.S.C. 2135). requirements. § 2.403 Notice of proposed action on 2. In § 2.110, paragraph (a) is revised applications for operating licenses under 10 CFR Part 170 to read as follows: Subpart I of Part 52. Byproduct material, Import and § 2.110 Filing and administrative action on In the case of applications under export licenses, Intergovernmental submittals for design review or early review subpart I of part 52 of this chapter for relations, Non-payment penalties, of site suitability issues. operating licenses for nuclear power Nuclear materials, Nuclear power plants (a)(1) A submittal under subpart E of reactors, if the Commission has not and reactors, Source material, Special part 52 of this chapter must be subject found that a hearing is in the public nuclear material. to §§ 2.101(a) and 2.790 to the same interest, the Director of Nuclear Reactor For the reasons set out in the extent as if it were an application for a Regulation will, prior to acting thereon, preamble and under the authority of the permit or license. cause to be published in the Federal Atomic Energy Act of 1954, as amended; (2) Except as specifically provided Register, under § 2.105, a notice of the Energy Reorganization Act of 1974, otherwise by the provisions of subpart proposed action with respect to each
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application as soon as practicable after reactors of the type described in § 50.22 § 20.1002 Scope. the applications have been docketed. of this chapter to be operated at sites not The regulations in this part apply to 7. Section 2.404 is revised to read as identified in the license application, the persons licensed by the Commission to follows: Secretary shall issue a notice of hearing receive, possess, use, transfer, or to be published in the Federal Register dispose of byproduct, source, or special § 2.404 Hearings on applications for operating licenses under Subpart I of Part at least thirty (30) days prior to the date nuclear material or to operate a 52. set for hearing in the notice. The notice production or utilization facility under must be issued as soon as practicable If a request for a hearing and/or parts 30 through 36, 39, 40, 50, 52, 60, after the application has been docketed. petition for leave to intervene is filed 61, 70, or 72 of this chapter, and in The notice will state: within the time prescribed in the notice accordance with 10 CFR 76.60 to (1) The time, place, and nature of the of proposed action on an application for persons required to obtain a certificate hearing and/or the prehearing an operating license under subpart I of of compliance or an approved conference; part 52 of this chapter with respect to compliance plan under part 76 of this a specific reactor(s) at a specific site and (2) The authority within which the chapter. The limits in this part do not the Commission or an atomic safety and hearing is to be held; apply to doses due to background licensing board designated by the (3) The matters of fact and law to be radiation, to exposure of patients to Commission or by the Chairman of the considered; and radiation for the purpose of medical Atomic Safety and Licensing Board (4) The time within which answers to diagnosis or therapy, to exposure from Panel has issued a notice of hearing or the notice shall be filed. individuals administered radioactive other appropriate order, the (b) * * * material and released in accordance Commission or the atomic safety and (1) * * * with 10 CFR 35.75, or to exposure from licensing board may order separate (vii) Whether, in accordance with the voluntary participation in medical hearings on particular phases of the requirements of subpart A of part 51 and research programs. proceeding and/or consolidate for subpart H of part 52 of this chapter, the license should be issued as proposed. PART 21—REPORTING OF DEFECTS hearing two or more proceedings in the AND NONCOMPLIANCE manner described in § 2.402. * * * * * 8. Section 2.406 is revised to read as (3) That, regardless of whether the 14. The authority citation for part 21 follows: proceeding is contested or uncontested, continues to read as follows: the presiding officer will, in accordance Authority: Sec. 161, 68 Stat. 948, as § 2.406 Finality of decisions on separate with subpart A of part 51 and issues. amended, sec. 234, 83 Stat. 444, as amended, § 52.245(b) of this chapter, sec. 1701, 106 Stat. 2951, 2953 (42 U.S.C. Notwithstanding any other provision * * * * * 2201, 2282, 2297f); secs. 201, as amended, of this chapter, in a proceeding 11. Section 2.502 is revised to read as 206, 88 Stat. 1242, as amended, 1246 (42 conducted under this subpart and follows: U.S.C. 5841, 5846). subpart I of part 52 of this chapter, no Section 21.2 also issued under secs. matter which has been reserved for § 2.502 Notice of hearing on application 135, 141, Pub. L. 97–425, 96 Stat. 2232, consideration in one phase of the for a permit to construct a nuclear power 2241 (42 U.S.C. 10155, 10161). hearing shall be considered at another reactor manufactured under a Commission 15. In § 21.2, paragraphs (a), (b), and phase of the hearing except on the basis license issued under subpart H of part 52 (c) are revised to read as follows: of significant new information that of this chapter at the site at which the reactor is to be operated. substantially affects the conclusion(s) § 21.2 Scope. The issues stated for consideration in reached at the other phase or other good (a) The regulations in this part apply, the notice of hearing on an application cause. except as specifically provided for a permit to construct a nuclear 9. Section 2.500 is revised to read as otherwise in Parts 31, 34, 35, 39, 40, 60, power reactor(s) which is the subject of follows: 61, 63, 70, or Part 72 of this chapter, to: an application for a manufacturing § 2.500 Scope of subpart. (1) Each individual, partnership, license under subpart H of part 52 of corporation, or other entity licensed This subpart prescribes procedures this chapter, will be those stated in pursuant to the regulations in this applicable to licensing proceedings § 2.104(b) and, in addition, whether the chapter to possess, use, or transfer which involve the consideration in site on which the facility is to be within the United States source separate hearings of an application for a operated falls within the postulated site material, byproduct material, special license to manufacture nuclear power parameters specified in the relevant nuclear material, and/or spent fuel and reactors under subpart H of part 52 of application for a manufacturing license. high-level radioactive waste, or to this chapter, and applications for construct, manufacture, possess, own, construction permits and operating PART 20—STANDARDS FOR operate, or transfer within the United licenses for nuclear power reactors PROTECTION AGAINST RADIATION States, any production or utilization which have been the subject of such an 12. The authority citation for part 20 facility or independent spent fuel application for a license to manufacture continues to read as follows: storage installation (ISFSI) or monitored such facilities (manufacturing license). 10. In § 2.501, paragraphs (a), Authority: Secs. 53, 63, 65, 81, 103, 104, retrievable storage installation (MRS); (b)(1)(vii) and (b)(3) are revised to read 161, 182, 186, 68 Stat. 930, 933, 935, 936, and each director and responsible as follows: 937, 948, 953, 955, as amended, sec. 1701, officer of such a licensee; and 106 Stat. 2951, 2952, 2953 (42 U.S.C. 2073, (2) Each individual, corporation, § 2.501 Notice of hearing on application 2093, 2095, 2111, 2133, 2134, 2201, 2232, partnership, or other entity doing under Subpart H of Part 52 for a license to 2236, 2297f), secs. 201, as amended, 202, business within the United States, and manufacture nuclear power reactors. 206, 88 Stat. 1242, as amended, 1244, 1246 each director and responsible officer of (a) In the case of an application under (42 U.S.C. 5841, 5842, 5846). such organization, that holds a permit or subpart H of part 52 of this chapter for 13. Section 20.1002 is revised to read license under part 52 of this chapter or a license to manufacture nuclear power as follows: constructs a production or utilization
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facility licensed for the manufacture, which could result in potential offsite Commission means the Nuclear construction, or operation pursuant to exposures comparable to those referred Regulatory Commission or its duly part 50 or part 52 of this chapter, an to in § 50.34(a)(1), § 50.67(b)(2), or authorized representatives. ISFSI for the storage of spent fuel § 100.11 of this chapter, as applicable. Constructing or construction means licensed pursuant to part 72 of this (ii) Basic components are items the analysis, design, manufacture, chapter, an MRS for the storage of spent designed and manufactured under a fabrication, placement, erection, fuel or high-level radioactive waste quality assurance program complying installation, modification, inspection, or pursuant to part 72 of this chapter, or with 10 CFR part 50, appendix B, or testing of a facility or activity which is a geologic repository for the disposal of commercial grade items which have subject to the regulations in this part high-level radioactive waste under part successfully completed the dedication and consulting services related to the 60 or 63 of this chapter; or supplies process. facility or activity that are safety related. basic components for a facility or Critical characteristics. When applied (2) When applied to other facilities to nuclear power plants licensed activity licensed, other than for export, and when applied to other activities under parts 30, 40, 50, 52, 60, 61, 63, 70, pursuant to 10 CFR part 50 or part 52, licensed pursuant to 10 CFR parts 30, critical characteristics are those 71, or part 72 of this chapter. 40, 50 (other than nuclear power (b) For persons licensed to construct important design, material, and plants), 60, 61, 63, 70, 71, or 72 of this a facility under either a construction performance characteristics of a chapter, basic component means a permit issued under § 50.23 of this commercial grade item that, once structure, system, or component, or part chapter or a combined license issued verified, will provide reasonable thereof that affects their safety function, under § 52.227 of this chapter, or assurance that the item will perform its that is directly procured by the licensee approved to hold a permit for a site or intended safety function. of a facility or activity subject to the sites for one or more nuclear power Dedicating entity. When applied to regulations in this part and in which a facilities under § 52.24 of this chapter, nuclear power plants licensed pursuant defect or failure to comply with any evaluation of potential defects and to 10 CFR part 50 or part 52, dedicating applicable regulation in this chapter, failures to comply and reporting of entity means the organization that order, or license issued by the defects and failures to comply under performs the dedication process. Commission could create a substantial § 50.55(e) of this chapter satisfies each Dedication may be performed by the safety hazard. person’s evaluation, notification, and manufacturer of the item, a third-party reporting obligation to report defects (3) In all cases, basic component dedicating entity, or the licensee. The and failures to comply under this part includes safety-related design, analysis, dedicating entity, pursuant to § 21.21(c) and the responsibility of individual inspection, testing, fabrication, of this part, is responsible for directors and responsible officers of replacement of parts, or consulting identifying and evaluating deviations, such licensees to report defects under services that are associated with the reporting defects and failures to comply section 206 of the Energy component hardware whether these for the dedicated item, and maintaining Reorganization Act of 1974. services are performed by the auditable records of the dedication (c) For persons licensed to operate a component supplier or others. process. nuclear power plant under part 50 or Commercial grade item. (1) When Dedication. (1) When applied to part 52 of this chapter, evaluation of applied to nuclear power plants nuclear power plants licensed pursuant potential defects and appropriate licensed pursuant to 10 CFR part 50 or to 10 CFR part 50 or part 52, dedication reporting of defects under §§ 50.72, part 52, commercial grade item means a is an acceptance process undertaken to 50.73 or § 73.71 of this chapter satisfies structure, system, or component, or part provide reasonable assurance that a each person’s evaluation, notification, thereof that affects its safety function, commercial grade item to be used as a and reporting obligation to report that was not designed and manufactured basic component will perform its defects under this part and the as a basic component. Commercial grade intended safety function and, in this responsibility of individual directors items do not include items where the respect, is deemed equivalent to an item and responsible officers of such design and manufacturing process designed and manufactured under a 10 licensees to report defects under section require in-process inspections and CFR part 50, appendix B, quality 206 of the Energy Reorganization Act of verifications to ensure that defects or assurance program. This assurance is 1974. failures to comply are identified and achieved by identifying the critical corrected (i.e., one or more critical characteristics of the item and verifying * * * * * their acceptability by inspections, tests, 16. Section 21.3 is revised to read as characteristics of the item cannot be or analyses performed by the purchaser follows: verified). or third-party dedicating entity after (2) When applied to facilities and delivery, supplemented as necessary by § 21.3 Definitions. activities licensed pursuant to 10 CFR one or more of the following: As used in this part: parts 30, 40, 50 (other than nuclear commercial grade surveys; product Basic component. (1)(i) When applied power plants), 60, 61, 63, 70, 71, or 72, inspections or witness at holdpoints at to nuclear power plants licensed commercial grade item means an item the manufacturer’s facility, and analysis pursuant to 10 CFR part 50 or part 52 that is: of this chapter, basic component means of historical records for acceptable (i) Not subject to design or a structure, system, or component, or performance. In all cases, the dedication specification requirements that are part thereof that affects its safety process must be conducted in unique to those facilities or activities; function necessary to assure: accordance with the applicable (A) The integrity of the reactor coolant (ii) Used in applications other than provisions of 10 CFR part 50, appendix pressure boundary; those facilities or activities; and B. The process is considered complete (B) The capability to shut down the (iii) To be ordered from the when the item is designated for use as reactor and maintain it in a safe manufacturer/supplier on the basis of a basic component. shutdown condition; or specifications set forth in the (2) When applied to facilities and (C) The capability to prevent or manufacturer’s published product activities licensed pursuant to 10 CFR mitigate the consequences of accidents description (for example, a catalog). parts 30, 40, 50 (other than nuclear
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power plants), 60, 61, 63, 70, 71, or 72, must meet in order to be considered basic component supplied for such dedication occurs after receipt when acceptable by the purchaser. facility or activity— that item is designated for use as a basic Responsible officer means the (i) Fails to comply with the Atomic component. president, vice-president or other Energy Act of 1954, as amended, or any Defect means: (1) A deviation in a individual in the organization of a applicable rule, regulation, order, or basic component delivered to a corporation, partnership, or other entity license of the Commission relating to a purchaser for use in a facility or an who is vested with executive authority substantial safety hazard, or activity subject to the regulations in this over activities subject to this part. (ii) Contains a defect. part if, on the basis of an evaluation, the Substantial safety hazard means a (b) If the deviation or failure to deviation could create a substantial loss of safety function to the extent that comply is discovered by a supplier of safety hazard; or there is a major reduction in the degree basic components, or services associated (2) The installation, use, or operation of protection provided to public health with basic components, and the of a basic component containing a and safety for any facility or activity supplier determines that it does not defect as defined in this section; or licensed, other than for export, pursuant have the capability to perform the (3) A deviation in a portion of a to parts 30, 40, 50, 52, 60, 61, 63, 70, evaluation to determine if a defect facility subject to the construction 71, or 72 of this chapter. exists, then the supplier must inform permit or manufacturing licensing Supplying or supplies means the purchasers or affected licensees requirements of part 50 or part 52 of this contractually responsible for a basic within five working days of this chapter provided the deviation could, component used or to be used in a determination so that the purchasers or on the basis of an evaluation, create a facility or activity which is subject to affected licensees may evaluate the substantial safety hazard and the the regulations in this part. deviation or failure to comply, pursuant to § 21.21(a). portion of the facility containing the 17. Section 21.21 is revised to read as (c) A dedicating entity is responsible deviation has been offered to the follows: purchaser for acceptance; or for— (4) A condition or circumstance § 21.21 Notification of failure to comply or (1) Identifying and evaluating involving a basic component that could existence of a defect and its evaluation. deviations and reporting defects and contribute to the exceeding of a safety (a) Each individual, corporation, failures to comply associated with limit, as defined in the technical partnership, dedicating entity, or other substantial safety hazards for dedicated specifications of a license for operation entity subject to the regulations in this items; and (2) Maintaining auditable records for issued pursuant to part 50 or part 52 of part shall adopt appropriate procedures to— the dedication process. this chapter. (d)(1) A director or responsible officer Deviation means a departure from the (1) Evaluate deviations and failures to subject to the regulations of this part or technical requirements included in a comply to identify defects and failures a person designated under § 21.21(d)(5) procurement document. to comply associated with substantial must notify the Commission when he or Director means an individual, safety hazards as soon as practicable, she obtains information reasonably appointed or elected according to law, and, except as provided in paragraph indicating a failure to comply or a defect who is authorized to manage and direct (a)(2) of this section, in all cases within affecting— the affairs of a corporation, partnership 60 days of discovery, in order to identify (i) The construction or operation of a or other entity. In the case of an a reportable defect or failure to comply facility or an activity within the United individual proprietorship, director that could create a substantial safety States that is subject to the licensing means the individual. hazard, were it to remain uncorrected, requirements under parts 30, 40, 50, 52, Discovery means the completion of and 60, 61, 63, 70, 71, or 72 of this chapter the documentation first identifying the (2) Ensure that if an evaluation of an and that is within his or her existence of a deviation or failure to identified deviation or failure to comply organization’s responsibility; or comply potentially associated with a potentially associated with a substantial (ii) A basic component that is within substantial safety hazard within the safety hazard cannot be completed his or her organization’s responsibility evaluation procedures discussed in within 60 days from discovery of the and is supplied for a facility or an § 21.21(a). deviation or failure to comply, an activity within the United States that is Evaluation means the process of interim report is prepared and subject to the licensing requirements determining whether a particular submitted to the Commission through a under parts 30, 40, 50, 52, 60, 61, 63, 70, deviation could create a substantial director or responsible officer or 71, or 72 of this chapter. hazard or determining whether a failure designated person as discussed in (2) The notification to NRC of a failure to comply is associated with a § 21.21(d)(5). The interim report should to comply or of a defect under substantial safety hazard. describe the deviation or failure to paragraph (d)(1) of this section and the Notification means the telephonic comply that is being evaluated and evaluation of a failure to comply or a communication to the NRC Operations should also state when the evaluation deviation under paragraph (a)(1) of this Center or written transmittal of will be completed. This interim report section, are not required if the director information to the NRC Document must be submitted in writing within 60 or responsible officer has actual Control Desk. days of discovery of the deviation or knowledge that the Commission has Operating or operation means the failure to comply. been notified in writing of the defect or operation of a facility or the conduct of (3) Ensure that a director or the failure to comply. a licensed activity which is subject to responsible officer subject to the (3) Notification required by paragraph the regulations in this part and regulations of this part is informed as (d)(1) of this section must be made as consulting services related to operations soon as practicable, and, in all cases, follows— that are safety related. within the 5 working days after (i) Initial notification by facsimile, Procurement document means a completion of the evaluation described which is the preferred method of contract that defines the requirements in § 21.21(a)(1) if the construction or notification, to the NRC Operations which facilities or basic components operation of a facility or activity, or a Center at (301) 816–5151 or by
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telephone at (301) 816–5100 within two a defect or failure to comply. rules or the imposition of a regulatory days following receipt of information by Commission action to obtain additional staff position interpreting the the director or responsible corporate information may be based on reports of Commission rules that is either new or officer under paragraph (a)(3) of this defects from other reporting entities. different from a previously applicable section, on the identification of a defect staff position after: or a failure to comply. Verification that PART 50—DOMESTIC LICENSING OF (i) The date of issuance of the the facsimile has been received should PRODUCTION AND UTILIZATION construction permit for the facility for be made by calling the NRC Operations FACILITIES facilities having construction permits Center. This paragraph does not apply 18. The authority citation for part 50 issued after October 21, 1985; or to interim reports described in continues to read as follows: (ii) Six months before the date of § 21.21(a)(2). docketing of the operating license (ii) Written notification to the NRC at Authority: Secs. 102, 103, 104, 105, 161, application for the facility for facilities the address specified in § 21.5 within 30 182, 183, 186, 189, 68 Stat. 936, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 having construction permits issued days following receipt of information by Stat. 444, as amended (42 U.S.C. 2132, 2133, before October 21, 1985; or the director or responsible corporate 2134, 2135, 2201, 2232, 2233, 2239, 2282); (iii) The date of issuance of the officer under paragraph (a)(3) of this secs. 201, as amended, 202, 206, 88 Stat. operating license for the facility for section, on the identification of a defect 1242, as amended, 1244, 1246 (42 U.S.C. facilities having operating licenses; or or a failure to comply. 5841, 5842, 5846). (iv) The date of issuance of the design (4) The written report required by this Section 50.7 also issued under Pub. L. 95– approval under subpart E of part 52 of paragraph must include, but need not be 601, sec. 10, 92 Stat. 2951, as amended by this chapter; limited to, the following information, to Pub. L. 102–486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 50.10 also issued under (v) The date of issuance of a the extent known: secs. 101, 185, 68 Stat. 936, 955, as amended manufacturing license under subpart H (i) Name and address of the (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91– of part 52 of this chapter; individual or individuals informing the 190, 83 Stat. 853 (42 U.S.C. 4332). Sections (vi) The date of issuance of the first Commission. 50.13, 50.54(dd), and 50.103 also issued construction permit issued for a (ii) Identification of the facility, the under sec. 108, 68 Stat. 939, as amended (42 duplicate design under subpart I of part activity, or the basic component U.S.C. 2138). Sections 50.23, 50.35, 50.55, 52 of this chapter; or supplied for such facility or such and 50.56 also issued under sec. 185, 68 Stat. (vii) The date of issuance of a activity within the United States which 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and Appendix Q also issued under sec. 102, combined license under subpart G of fails to comply or contains a defect. part 52 of this chapter, provided that if (iii) Identification of the firm Pub. L. 91–190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under the combined license references an early constructing the facility or supplying Pub. L. 97–415, 96 Stat. 2073 (42 U.S.C. site permit, the provisions in § 52.39 the basic component which fails to 2239). Section 50.78 also issued under sec. apply with respect to the site comply or contains a defect. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections characteristics, terms, and conditions of (iv) Nature of the defect or failure to 50.80–50.81 also issued under sec. 184, 68 the early site permit. If the combined comply and the safety hazard which is Stat. 954, as amended (42 U.S.C. 2234). license references an early site review, created or could be created by such Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237). the provisions in § 52.47 apply with defect or failure to comply. respect to the staff site report. If the (v) The date on which the information 19. In § 50.8, paragraph (b) is revised combined license references a design of such defect or failure to comply was to read as follows: certification rule, the provisions in obtained. (vi) In the case of a basic component § 50.8 Information collection § 52.127(a) apply with respect to the which contains a defect or fails to requirements: OMB approval. design matters resolved in the design comply, the number and location of all * * * * * certification. such components in use at, supplied for, (b) The approved information * * * * * or being supplied for one or more collection requirements contained in Appendix M to Part 50 [Removed] facilities or activities subject to the this part appear in §§ 50.30, 50.33, regulations in this part. 50.33a, 50.34, 50.34a, 50.35, 50.36, 21. Appendix M to Part 50 is (vii) The corrective action which has 50.36a, 50.36b, 50.44, 50.46, 50.47, removed. been, is being, or will be taken; the 50.48, 50.49, 50.54, 50.55, 50.55a, 50.59, Appendix N to Part 50 [Removed] name of the individual or organization 50.60, 50.61, 50.62, 50.63, 50.64, 50.65, responsible for the action; and the 50.66, 50.68, 50.71, 50.72, 50.74, 50.75, 22. Appendix N to Part 50 is removed. length of time that has been or will be 50.80, 50.82, 50.90, 50.91, 50.120, and Appendix O to Part 50 [Removed] taken to complete the action. appendices A, B, E, G, H, I, J, K, R, and 23. Appendix O to Part 50 is removed. (viii) Any advice related to the defect S to this part. or failure to comply about the facility, * * * * * Appendix Q to Part 50 [Removed] activity, or basic component that has 20. In § 50.109, paragraph (a)(1) is 24. Appendix Q to Part 50 is removed. been, is being, or will be given to revised to read as follows: purchasers or licensees. PART 51—ENVIRONMENTAL § 50.109 Backfitting. (5) The director or responsible officer PROTECTION REGULATIONS FOR may authorize an individual to provide (a)(1) Backfitting is defined as the DOMESTIC LICENSING AND RELATED the notification required by this modification of or addition to systems, REGULATORY FUNCTIONS paragraph, provided that, this shall not structures, components, or design of a relieve the director or responsible facility; or the design approval or 25. The authority citation for Part 51 officer of his or her responsibility under manufacturing license for a facility; or continues to read as follows: this paragraph. the procedures or organization required Authority: Sec. 161, 68 Stat. 948, as (e) Individuals subject to this part to design, construct or operate a facility; amended, sec. 1701, 106 Stat. 2951, 2952, may be required by the Commission to any of which may result from a new or 2953, (42 U.S.C. 2201, 2297f); secs. 201, as supply additional information related to amended provision in the Commission amended, 202, 88 Stat. 1242, as amended,
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1244 (42 U.S.C. 5841, 5842). Subpart A also 52.43 Filing and contents of applications. 52.265 Filing and contents of applications. issued under National Environmental Policy 52.45 Notice of application. Subpart J—[Reserved] Act of 1969, secs. 102, 104, 105, 83 Stat. 853– 52.46 Referral to the ACRS. 854, as amended (42 U.S.C. 4332, 4334, 52.47 Issuance of site report. Subpart K—[Reserved] 4335); and Pub. L. 95–604, Title II, 92 Stat. 52.49 Relationship to other subparts. 3033–3041; and sec. 193, Pub. L. 101–575, Subpart L—[Reserved] Subpart C—[Reserved] 104 Stat. 2835 (42 U.S.C. 2243). Sections Subpart M—Enforcement 51.20, 51.30, 51.60, 51.80. and 51.97 also Subpart D—Standard Design Certifications 52.401 Violations. issued under secs. 135, 141, Pub. L. 97–425, 52.101 Scope of subpart. 52.403 Criminal penalties. 96 Stat. 2232, 2241, and sec. 148, Pub. L. 52.103 Relationship to other subparts. 100–203, 101 Stat. 1330–223 (42 U.S.C. 52.105 Filing of applications. APPENDIX A—Design Certification 10155, 10161, 10168). Section 51.22 also 52.107 Contents of applications. Rule for the U.S. Advanced Boiling issued under sec. 274, 73 Stat. 688, as 52.109 Standards for review of applications. Water Reactor amended by 92 Stat. 3036–3038 (42 U.S.C. 52.111 Applicability of NRC requirements. 2021) and under Nuclear Waste Policy Act of 52.113 Administrative review of APPENDIX B—Design Certification Rule 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. applications. for the System 80+ Design 10141). Sections 51.43, 51.67, and 51.109 52.115 Referral to the ACRS. also under Nuclear Waste Policy Act of 1982, APPENDIX C—Design Certification Rule 52.117 Issuance of standard design for the AP600 Design sec. 114(f), 96 Stat. 2216, as amended (42 certification. U.S.C. 10134(f)). 52.119 Duration of certification. Authority: Secs. 103, 104, 161, 182, 183, 52.121 Application for renewal. 26. In § 51.20, paragraph (b)(6) is 186, 189, 68 Stat. 936, 948, 953, 954, 955, revised to read as follows: 52.123 Criteria for renewal. 52.125 Duration of renewal. 956, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2133, 2201, 2232, 2233, § 51.20 Criteria for and identification of 52.127 Finality of standard design 2236, 2239, 2282); secs. 201, 202, 206, 88 licensing and regulatory actions requiring certifications. Stat. 1242, 1244, 1246, as amended (42 U.S.C. environmental impact statements. Subpart E—Standard Design Approvals 5841, 5842, 5846). * * * * * 52.131 Scope of subpart. General Provisions (b) * * * 52.133 Filing of applications. (6) Issuance of a license to 52.135 Contents of applications. § 52.1 Scope. manufacture pursuant to Subpart H of 52.137 Referral to the ACRS. Part 52 of this chapter. 52.139 Staff approval of design. This part governs the issuance of early 52.141 Finality of the design approval. site permits and staff site reports, design * * * * * approvals and certifications, and 27. Part 52 is revised to read as 52.143 Information requests. combined, manufacturing, and follows: Subpart F—[Reserved] duplicate design licenses for nuclear PART 52—ADDITIONAL LICENSING Subpart G—Combined Licenses power facilities licensed under section PROCESSES FOR NUCLEAR POWER 52.201 Scope of subpart. 103 or 104b of the Atomic Energy Act PLANTS 52.203 Relationship to other subparts. of 1954, as amended (68 Stat. 919), and 52.205 Filing of applications. Title II of the Energy Reorganization Act General Provisions 52.207 Contents of applications; general of 1974 (88 Stat. 1242). This part also information. Sec. gives notice to all persons who 52.209 Contents of applications; training knowingly provide to any licensee, 52.1 Scope. and qualification of nuclear power plant 52.3 Definitions. personnel. holder of, or applicant for an approval, 52.5 Applicability of 10 CFR Part 50 52.211 Contents of applications; technical certification, permit, site report, or provisions. information. license, or to a contractor, 52.8 Information collection requirements: 52.213 Standards for review of applications. subcontractor, or consultant of any of OMB approval. 52.215 Applicability of NRC requirements. them, components, equipment, Subpart A—Early Site Permits 52.217 Administrative review of materials, or other goods or services, applications. 52.11 Scope of subpart. that relate to the activities of a licensee, 52.219 Referral to the ACRS. holder of, or applicant for an approval, 52.13 Relationship to Subpart F of 10 CFR 52.221 Environmental review. Part 2 and Subpart B of this part. 52.223 Authorization to conduct site certification, permit, site report, or 52.15 Filing of applications. activities. license, subject to this part, that they 52.17 Contents of applications. 52.225 Exemptions and variances. may be individually subject to NRC 52.18 Standards for review of applications. 52.227 Issuance of combined licenses. enforcement action for violation of the 52.19 Applicability of NRC requirements. 52.229 Inspection during construction. provisions in 10 CFR 50.5. 52.21 Hearings. 52.231 Operation under a combined 52.23 Referral to the ACRS. license. § 52.3 Definitions. 52.24 Issuance of early site permit. (a) As used in this part— 52.25 Extent of activities permitted. Subpart H—Manufacturing Licenses Combined license means a combined 52.27 Duration of permit. 52.241 Scope of subpart. 52.28 Transfer of early site permit. 52.243 Relationship to other subparts. construction permit and operating 52.29 Application for renewal. 52.245 Filing and contents of applications. license with conditions for a nuclear 52.31 Criteria for renewal. 52.247 Standards for review of applications. power facility issued pursuant to 52.33 Duration of renewal. 52.249 Applicability of NRC requirements. subpart C of this part. 52.35 Use of site for other purposes. 52.251 Referral to the ACRS. Early site permit means a Commission 52.37 Reporting of defects and 52.253 Issuance of manufacturing license. approval, issued pursuant to subpart A noncompliance; revocation, suspension, 52.255 Duration of design approval. of this part, for a site or sites for one or modification of permits for cause. 52.257 Finality of the manufacturing more nuclear power facilities. 52.39 Finality of early site permit license. determinations. Modular design means a nuclear Subpart I—Duplicate Design Licenses power station that consists of two or Subpart B—Early Site Reviews 52.261 Scope of subpart. more essentially identical nuclear 52.41 Scope of subpart. 52.263 Relationship to other subparts. reactors (modules), where each module
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is a separate nuclear reactor capable of The NRC may not conduct or sponsor, application for a construction permit or being safely operated independent of and a person is not required to respond a combined license has not been filed in the state of completion or operating to, a collection of information unless it connection with the site or sites for condition of any other module co- displays a currently valid OMB control which a permit is sought. located on the same site, even though number. OMB has approved the (b) The application must comply with the nuclear power station may have information collection requirements the filing requirements of 10 CFR 50.30 some shared or common systems. contained in this part under Control (a), (b), and (f) as they would apply to Prototype plant means a nuclear Number 3150–0151. an application for a construction permit. reactor that is used to test design (b) The approved information The following portions of 10 CFR 50.4, features, such as the testing required by collection requirements contained in which is referenced by 10 CFR § 52.107(b)(2). The prototype plant is this part appear in §§ 52.15, 52.17, 50.30(a)(1), are applicable: Paragraphs similar to the first-of-a-kind or standard 52.29, 52.35, 52.39, 52.45, 52.105, (a), (b) (1) (2) (3), (c), (d), and (e). plant design in all features and size, but 52.107, 52.111, 52.119, 52.121, 52.123, (c) The fees associated with the filing may include additional safety features 52.127, 52.205, 52.207, 52.209, 52.211, and review of an application for the to protect the public, the plant staff, and 52.215, 52.223, 52.225, 52.229, 52.231, initial issuance or renewal of an early the plant itself from the possible 52.243, and Appendices A, B, and C. site permit are set forth in 10 CFR part consequences of accidents during the 170. testing period. Subpart A—Early Site Permits § 52.17 Contents of applications. Standard design means a design § 52.11 Scope of subpart. which is sufficiently detailed and (a)(1) The application must contain This subpart sets out the requirements the information required by 10 CFR complete to support certification in and procedures applicable to accordance with subpart B of this part, 50.33(a) through (d), the information Commission issuance of early site required by 10 CFR 50.34 (a)(12) and and which is usable for a multiple permits for approval of a site or sites for number of units or at a multiple number (b)(10), and to the extent approval of one or more nuclear power facilities emergency plans is sought under of sites without reopening or repeating separate from the filing of an the review. paragraph (b)(2)(ii) of this section, the application for a construction permit, information required by § 50.33 (g) and Standard design certification, design combined license, or duplicate design (j), and § 50.34 (b)(6)(v) of this chapter. certification, or certification means a license for such a facility. Commission approval, issued pursuant The application must also contain a to Subpart B of this part, of a standard § 52.13 Relationship to Subpart F of 10 description and safety assessment of the design for a nuclear power facility. A CFR Part 2 and Subpart B of this part. site on which the facility is to be design so approved may be referred to The procedures of this subpart do not located. The assessment must contain as a certified standard design. replace those set out in subpart F of 10 an analysis and evaluation of the major (b) All other terms in this part have CFR part 2 or subpart B of this part. structures, systems, and components of the meaning set out in 10 CFR 50.2, or Subpart F of 10 CFR part 2 applies only the facility that bear significantly on the section 11 of the Atomic Energy Act, as when an early partial decision of site acceptability of the site under the applicable. suitability issues is sought in radiological consequence evaluation connection with an application for a factors identified in § 50.34(a)(1) of this § 52.5 Applicability of 10 CFR part 50 permit to construct certain power chapter. Site characteristics must provisions. facilities. Subpart B of this part applies comply with part 100 of this chapter. In Unless otherwise specifically only when NRC staff review of one or addition, the application should provided for in this part, §§ 50.3, 50.4, more site suitability issues is sought describe the following: 50.5, 50.7, 50.9, 50.10, 50.11, 50.12, separately from and prior to the (i) The specific number, type, and 50.13, 50.50, 50.51, 50.52, 50.53, 50.54, submittal of an application for a thermal power level of the facilities, or 50.55, 50.55a, 50.56, 50.57, 50.58, 50.59, construction permit, combined license, range of possible facilities, for which the 50.70, 50.71, 50.72, 50.73, 50.74, 50.75, or duplicate design license. A Staff Site site may be used; 50.78, 50.80, 50.81, 50.82, 50.90, 50.91, Report issued under subpart B of this (ii) The boundaries of the site; 50.92, 50.100, 50.101, 50.102, 50.103 part in no way affects the authority of (iii) The proposed general location of and 50.109 of this chapter apply to a the Commission or the presiding officer each facility on the site; licensee, holder of, or applicant for an in any proceeding under Subparts F or (iv) The anticipated maximum levels approval, certification, permit, site G of 10 CFR part 2. This subpart A of radiological and thermal effluents report, or license issued under this part. applies when any person who may each facility will produce; A licensee, holder of, or applicant for an apply for a construction permit under (v) The type of cooling systems, approval, certification, permit, site 10 CFR part 50 or for a combined intakes, and outflows that may be report, or license issued under this part license under part 52 seeks an early site associated with each facility; shall comply with all requirements in permit from the Commission separately (vi) The seismic, meteorological, these provisions that are otherwise from an application for a construction hydrologic, and geologic characteristics applicable to applicants or licensees permit or a combined license for a of the proposed site; under part 50 of this chapter. facility. (vii) The location and description of any nearby industrial, military, or § 52.8 Information collection § 52.15 Filing of applications. transportation facilities and routes; and requirements: OMB approval. (a) Any person who may apply for a (viii) The existing and projected (a) The Nuclear Regulatory construction permit under 10 CFR part future population profile of the area Commission has submitted the 50, or for a combined license under this surrounding the site. information collection requirements part, may file an application for an early (2) A complete environmental report contained in this part to the Office of site permit with the Director of Nuclear as required by 10 CFR 51.45 and 51.50 Management and Budget (OMB) for Reactor Regulation. An application for must be included in the application, approval as required by the Paperwork an early site permit may be filed provided, however, that such Reduction Act (44 U.S.C. 3501 et seq.). notwithstanding the fact that an environmental report must focus on the
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environmental effects of construction obtaining the separate authorization (b) A holder of an early site permit and operation of a reactor, or reactors, required by that section, the applicant shall comply with all requirements in which have characteristics that fall shall propose, in the early site permit, 10 CFR Chapter I applicable to holders within the postulated site parameters, a plan for redress of the site in the event of construction permits and limited and provided further that the report that the activities are performed and the work authorizations under 10 CFR need not include an assessment of the site permit expires before it is 50.10. benefits (for example, need for power) of referenced in an application for a the proposed action or an evaluation of construction permit or a combined § 52.21 Hearings. alternative energy sources, but must license issued under Subpart G of this An early site permit is a partial include an evaluation of alternative sites part. The application must demonstrate construction permit and is therefore to determine whether there is any that there is reasonable assurance that subject to all procedural requirements in obviously superior alternative to the site redress carried out under the plan will 10 CFR Part 2 which are applicable to proposed. achieve an environmentally stable and construction permits, including the (b)(1) The application must identify aesthetically acceptable site suitable for requirements for docketing in 10 CFR physical characteristics unique to the whatever non-nuclear use may conform 2.101(a)(1)–(4), and the requirements for with local zoning laws. proposed site, such as egress limitations issuance of a notice of hearing in 10 from the area surrounding the site, that § 52.18 Standards for review of CFR 2.104(a), (b)(1)(iv) and (v), (b)(2) to could pose a significant impediment to applications. the extent it runs parallel to the development of emergency plans. § 2.104(b)(1)(iv) and (v), and (b)(3). (2) The application may also either: Applications filed under this subpart (i) Propose major features of the will be reviewed according to the However, the designated sections may emergency plans, such as the exact sizes applicable standards set out in 10 CFR not be construed to require that the of the emergency planning zones, that Part 50 and its appendices and 10 CFR environmental report or draft or final can be reviewed and approved by NRC part 100 as they apply to applications environmental impact statement include in consultation with the Federal for construction permits for nuclear an assessment of the benefits of the Emergency Management Agency power plants. In addition, the proposed action or an evaluation of (FEMA) in the absence of complete and Commission shall prepare an alternative energy sources. In the integrated emergency plans; or environmental impact statement during hearing, the presiding officer shall also (ii) Propose complete and integrated review of the application, in accordance determine whether, taking into emergency plans for review and with the applicable provisions of 10 consideration the site criteria contained approval by the NRC, in consultation CFR Part 51, provided, however, that in 10 CFR Part 100, a reactor, or with FEMA, in accord with the the draft and final environmental reactors, having characteristics that fall applicable provisions of 10 CFR 50.47. impact statements prepared by the within the parameters for the site can be (3) Under paragraphs (b)(1) and Commission focus on the environmental constructed and operated without (b)(2)(i) of this section, the application effects of construction and operation of undue risk to the health and safety of must include a description of contacts a reactor, or reactors, which have the public. All hearings conducted on and arrangements made with local, characteristics that fall within the applications for early site permits filed state, and Federal governmental postulated site parameters, and under this part are governed by the agencies with emergency planning provided further that the statements procedures contained in subpart G of 10 responsibilities. need not include an assessment of the CFR part 2. (i) Under the option set forth in benefits (for example, need for power) of paragraph (b)(2)(ii) of this section, the the proposed action or an evaluation of § 52.23 Referral to the ACRS. applicant shall make good faith efforts alternative energy sources, but must The Commission shall refer a copy of to obtain from the same governmental include an evaluation of alternative sites the application to the Advisory agencies certifications that: to determine whether there is any Committee on Reactor Safeguards (A) The proposed emergency plans obviously superior alternative to the site (ACRS). The ACRS shall report on those are practicable; proposed. The Commission shall portions of the application which (B) These agencies are committed to determine, after consultation with concern safety. participating in any further FEMA, whether the information development of the plans, including any required of the applicant by § 52.24 Issuance of early site permit. required field demonstrations; and § 52.17(b)(1) shows that there is no After conducting a hearing under (C) These agencies are committed to significant impediment to the § 52.21 of this subpart and receiving the executing their responsibilities under development of emergency plans, the plans in the event of an emergency. whether any major features of report to be submitted by the Advisory (ii) The application must contain any emergency plans submitted by the Committee on Reactor Safeguards under certifications that have been obtained. If applicant under § 52.17(b)(2)(i) are § 52.23 of this subpart, and upon these certifications cannot be obtained, acceptable, and whether any emergency determining that an application for an the application must contain plans submitted by the applicant under early site permit meets the applicable information, including a utility plan, § 52.17(b)(2)(ii) provide reasonable standards and requirements of the sufficient to show that the proposed assurance that adequate protective Atomic Energy Act and the plans nonetheless provide reasonable measures can and will be taken in the Commission’s regulations, and that assurance that adequate protective event of a radiological emergency. notifications, if any, to other agencies or measures can and will be taken, in the bodies have been duly made, the event of a radiological emergency at the § 52.19 Applicability of NRC requirements. Commission shall issue an early site site. (a) An applicant shall comply with all permit, in the form the Commission (c) If the applicant wishes to be able requirements in 10 CFR Chapter I deems appropriate and necessary. The to perform, after grant of the early site applicable to applicants for construction early site permit shall specify the site permit, the activities at the site allowed permits and limited work authorizations parameters and the terms and by 10 CFR 50.10(e)(1) without first under 10 CFR 50.10. conditions of the early site permit.
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§ 52.25 Extent of activities permitted. § 52.28 Transfer of early site permit. § 52.33 Duration of renewal. (a) If an early site permit contains a An application to transfer an early site Each renewal of an early site permit site redress plan, the holder of the permit will be processed under 10 CFR may be for not less than ten nor more permit, or the applicant for a 50.80. than twenty years. construction permit or a combined license who references the permit, may § 52.29 Application for renewal. § 52.35 Use of site for other purposes. perform the activities at the site allowed (a) Not less than twelve nor more than A site for which an early site permit by 10 CFR 50.10(e)(1) without first thirty-six months prior to the expiration has been issued under this subpart may obtaining the separate authorization date, or any later renewal period, the be used for purposes other than those required by that section, if the final permit holder may apply for a renewal described in the permit, including the environmental impact statement of the permit. An application for location of other types of energy prepared for the permit has concluded renewal must contain all information facilities. The permit holder shall that the activities will not result in any necessary to bring up to date the inform the Director of Nuclear Reactor significant adverse environmental information and data contained in the Regulation of any significant uses for impact which cannot be redressed. previous application. the site which have not been approved (b) If the activities permitted by in the early site permit. The information (b) Any person whose interests may paragraph (a) of this section are about the activities must be given to the be affected by renewal of the permit performed at any site for which an early Director in advance of any actual may request a hearing on the site permit has been granted, and the construction or site modification for the application for renewal. The request for site is not referenced in an application activities. The information provided a hearing must comply with 10 CFR for a construction permit or a combined could be the basis for imposing new 2.714. If a hearing is granted, notice of license issued under subpart G of this requirements on the permit, in the hearing will be published in part while the permit remains valid, accordance with the provisions of accordance with 10 CFR 2.703. then the early site permit must remain § 52.39. If the permit holder informs the in effect solely for the purpose of site (c) An early site permit, either original Director that the holder no longer redress, and the holder of the permit or renewed, for which a timely intends to use the site for a nuclear shall redress the site in accordance with application for renewal has been filed, power plant, the Director shall the terms of the site redress plan remains in effect until the Commission terminate the permit. required by 10 CFR 52.17(c). If, before has determined whether to renew the redress is complete, a use not envisaged permit. If the permit is not renewed, it § 52.37 Reporting of defects and in the redress plan is found for the site continues to be valid in certain noncompliance; revocation, suspension, modification of permits for cause. or parts thereof, the holder of the permit proceedings in accordance with the shall carry out the redress plan to the provisions of § 52.27(b). For purposes of 10 CFR part 21 and greatest extent possible consistent with (d) The Commission shall refer a copy 10 CFR 50.100, an early site permit is the alternate use. of the application for renewal to the a construction permit. Advisory Committee on Reactor § 52.27 Duration of permit. § 52.39 Finality of early site permit Safeguards (ACRS). The ACRS shall determinations. (a) Except as provided in paragraph report on those portions of the (b) of this section, an early site permit application which concern safety and (a)(1) Notwithstanding any provision issued under this subpart may be valid shall apply the criteria set forth in in 10 CFR 50.109, while an early site for not less than ten nor more than § 52.31. permit is in effect under §§ 52.27 or twenty years from the date of issuance. 52.33, the Commission may not change (b)(1) An early site permit continues § 52.31 Criteria for renewal. or impose new site characteristics, terms to be valid beyond the date of expiration (a) The Commission shall grant the or conditions of the early site permit, in any proceeding on a construction renewal if the Commission determines including emergency planning permit application or a combined that the site complies with: requirements, on the early site permit or license application that references the the site for which it was issued, unless (1) The Atomic Energy Act and the the Commission determines that a early site permit and is docketed either Commission’s regulations and orders before the date of expiration of the early modification is necessary either to bring applicable and in effect at the time the the permit or the site into compliance site permit, or, if a timely application site permit was originally issued; for renewal of the permit has been filed, with the Commission’s regulations and (2) Any new requirements the before the Commission has determined orders applicable and in effect at the Commission may wish to impose after a whether to renew the permit. time the permit was issued, or to assure (2) An early site permit also continues determination that there is a substantial adequate protection of the public health to be valid beyond the date of expiration increase in overall protection of the and safety or the common defense and in any proceeding on an operating public health and safety or the common security. license application which is based on a defense and security to be derived from (2) In making the findings required for construction permit that references the the new requirements; and issuance of a construction permit, early site permit, and in any hearing (3) The direct and indirect costs of operating license, combined license, or held under 10 CFR 52.231 before implementation of those requirements duplicate design license, or the findings operation begins under a combined are justified in view of this increased required by § 52.231 of this part, if the license which references the early site protection. application for the construction permit, permit. (b) A denial of renewal on this basis operating license, combined license, or (c) An applicant for a construction does not bar the permit holder or duplicate design license references an permit or combined license may, at its another applicant from filing a new early site permit, the Commission shall own risk, reference in its application a application for the site which proposes treat as resolved those matters resolved site for which an early site permit changes to the site or the way that it is in the proceeding on the application for application has been docketed but not used to correct the deficiencies cited in issuance or renewal of the early site granted. the denial of the renewal. permit (with the exception of the
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matters in paragraph (b) of this section), subpart shall update and correct the prior to an application for a unless a contention is admitted that a information that was provided under construction permit, a combined nuclear reactor does not fit within one § 52.17(b), and discuss whether the new license, or a duplicate design license for or more of the site parameters in the information materially changes the a facility. The submittal must consist of early site permit, or a petition is filed bases for compliance with the the portion of the information required which alleges either that the site does applicable requirements. New of applicants for construction permits not conform to the site characteristics in information which materially changes by §§ 50.33(a) through (c) and (e) of this the early site permit, or that the terms the bases for the Commission’s chapter, and, insofar as it relates to the and conditions of the early site permit determination on the matters in issue(s) of site suitability for which should be modified. § 52.17(b) must be subject to litigation early review is sought, by §§ 50.34(a)(1) (i) A contention that a nuclear reactor during the construction permit, and 50.30(f) of this chapter. Information does not fit within one or more of the operating license, duplicate design with respect to operation of the facility site parameters included in the site license, or combined license proceeding at the projected initial power level need permit may be litigated in the same in the same manner as other issues not be supplied. manner as other issues material to the material to those proceedings. (b) The submittal for early review of proceeding. (c) An applicant for a construction site suitability issue(s) must be made in (ii) A petition which alleges that the permit, operating license, duplicate the same manner and in the same site does not conform to the site design license, or combined license who number of copies as provided in §§ 50.4 characteristics in the early site permit has filed an application referencing an and 50.30 of this chapter for license must include, or clearly reference, early site permit issued under this applications. The submittal must official NRC documents, documents subpart may include in the application include sufficient information prepared by or for the permit holder, or a request for a variance from one or concerning the range of postulated evidence admissible in a proceeding more elements of the permit. In facility design and operation parameters under subpart G of part 2 of this determining whether to grant the to enable the NRC staff to perform the chapter, which show, prima facie, that variance, the Commission shall apply requested review of site suitability the site does not conform to the site the same technically relevant criteria as issues. The submittal must contain characteristics. The permit holder and were applicable to the application for suggested conclusions on the issues of NRC staff may file answers to the the original or renewed site permit. site suitability submitted for review and petition within the time specified in 10 Issuance of the variance must be subject must be accompanied by a statement of CFR 2.730 for answers to motions by to litigation during the construction the bases or the reasons for those parties and staff. If the Commission, in permit, operating license, duplicate conclusions. The submittal must also its judgment, decides, on the basis of the design license, or combined license list, to the extent possible, any long- petitions and any answers thereto, that proceeding in the same manner as other range objectives for ultimate the petition meets the requirements of issues material to those proceedings. development of the site, state whether this paragraph, that the issues are not any site selection process was used in exempt from adjudication under 5 Subpart B—Early Site Reviews preparing the submittal, describe any U.S.C. 554(a)(3), that genuine issues of site selection process used, and explain material fact are raised, and that § 52.41 Scope of subpart. what consideration, if any, was given to settlement or other informal resolution This subpart sets out procedures for alternative sites. of the issues is not possible, then the the filing, staff review, and referral to (c) The fees associated with the filing genuine issues of material fact raised by the Advisory Committee on Reactor and review of the application are set the petition must be resolved in Safeguards (ACRS) of requests for early forth in 10 CFR part 170. accordance with the provisions in 5 review of one or more site suitability U.S.C. 554, 556, and 557 which are issues relating to the construction and § 52.45 Notice of application. applicable to determining application operation of certain utilization facilities The NRC staff shall publish a notice for initial licenses. separately from and prior to the of docketing of the submittal in the (iii) A petition which alleges that the submittal of applications for Federal Register, and shall send a copy terms and conditions of the early site construction permits, combined of the notice of docketing to the permit should be modified will be licenses, or duplicate design licenses for Governor of the State, local government processed in accordance with 10 CFR the facilities. The subpart also sets out bodies (county, municipality, or other 2.206. Before construction commences, procedures for the preparation and political subdivision), and affected, the Commission shall consider the issuance of Staff Site Reports and for Federally-recognized Indian Tribes. petition and determine whether any their incorporation by reference in This notice must identify the location of immediate action is required. If the applications for the construction and the site, briefly describe the site petition is granted, then an appropriate operation of certain utilization facilities. suitability issue(s) under review, and order will be issued. Construction under The utilization facilities are those which invite comments from Federal, State, the construction permit or combined are subject to § 51.20(b) of this chapter Tribal, and local agencies and interested license will not be affected by the and are of the type specified in persons within 120 days of publication granting of the petition unless the order § 50.21(b)(2) or (3) or § 50.22 of this or such other time as may be specified, is made immediately effective. chapter or are testing facilities. This for consideration by the staff in (iv) Prior to construction, the subpart does not apply to proceedings connection with the initiation or Commission shall find that the terms conducted pursuant to subpart F of part outcome of the review and, if and conditions of the early site permit 2 of this chapter. appropriate, by the ACRS in connection have been met. with the outcome of their review. The (b) An applicant for a construction § 52.43 Filing and contents of applications. person requesting the review shall serve permit, operating license, duplicate (a) Any person may submit a copy of the submittal on the Governor design license, or combined license who information regarding one or more site or other appropriate official of the State has filed an application referencing an suitability issues to the Commission’s in which the site is located, and on the early site permit issued under this Staff for its review separately from and chief executive of the municipality in
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which the site is located or, if the site the full construction permit, combined (b) Subpart E of this part governs the is not located in a municipality, on the license, or duplicate design license NRC staff review and approval of chief executive of the county. review required by subpart A of part 51 preliminary and final standard designs. of this chapter. The NRC staff may An NRC staff approval under subpart E § 52.46 Referral to the ACRS. decline to prepare and issue a Staff Site of this part in no way affects the The portion of the submittal Report in response to a submittal under authority of the Commission or the containing information requested of this subpart where it appears that— presiding officer in any proceeding applicants for construction permits by (a) In cases where no review of the under subpart G of 10 CFR part 2. §§ 50.33 (a) through (c) and (e) and relative merits of the submitted site and 50.34(a)(1) of this chapter will be alternative sites under subpart A of part § 52.105 Filing of applications. referred to the ACRS for a review and 51 of this chapter is requested, there is (a)(1) Any person may seek a standard report. There will be no referral to the a reasonable likelihood that further staff design certification for an essentially ACRS unless early review of the site review would identify one or more complete nuclear power plant design safety issues under § 50.34(a)(1) is preferable alternative sites and the staff which is an evolutionary change from requested. review of one or more site suitability light water reactor designs of plants which have been licensed and in § 52.47 Issuance of site report. issues would lead to an irreversible and irretrievable commitment of resources commercial operation before April 18, (a) Upon completion of review by the prior to the submittal of the analysis of 1989. NRC staff and, if appropriate, by the alternative sites in the Environmental (2) Any person may also seek a ACRS of a submittal under this subpart, Report that would prejudice the later standard design certification for a the NRC staff shall prepare a Staff Site review and decision on alternative sites nuclear power plant design which Report which identifies the location of under subpart F and/or G of part 2 and differs significantly from the light water the site, states the site suitability issues subpart A of part 51 of this chapter; or reactor designs described in paragraph reviewed, explains the nature and scope (b) In cases where, in the judgment of (a)(1) of this section or utilizes of the review, states the conclusions of the staff, early review of any site simplified, inherent, passive, or other the staff regarding the issues reviewed suitability issue or issues would not be innovative means to accomplish its and, states the reasons for those in the public interest, considering: safety functions. conclusions. Upon issuance of an NRC (1) The degree of likelihood that any (b) An application for certification Staff Site Report, the NRC staff shall early findings on those issues would may be filed notwithstanding the fact publish a notice of the availability of the retain their validity in later reviews; that an application for a construction report in the Federal Register and shall (2) The objections, if any, of cognizant permit, a duplicate design license, or a make available a copy of the report at state or local government agencies to the combined license for such a facility has the NRC Web site, http://www.nrc.gov. conduct of an early review on those not been filed. The NRC staff shall also send a copy of issues; and (c) The applicant must comply with the report to the Governor of the State, (3) The possible effect on the public the filing requirements of 10 CFR local government bodies (county, interest of having an early, if not 50.30(a) and 50.30(b) as these municipality, or other political necessarily conclusive, resolution of requirements would apply to an subdivision), and affected, Federally- those issues. application for a nuclear power plant recognized Indian Tribes. construction permit. (b) Any Staff Site Report prepared and Subpart C—[Reserved] (d) The fees associated with the issued in accordance with this subpart review of an application for the initial may be incorporated by reference, as Subpart D—Standard Design issuance or renewal of a standard design appropriate, in an application for a Certifications certification are set forth in 10 CFR part construction permit, a combined 170. license, or a duplicate design license for § 52.101 Scope of subpart. a utilization facility which is subject to This subpart sets forth the § 52.107 Contents of applications. § 51.20(b) of this chapter and is of the requirements and procedures applicable (a) The requirements of this paragraph type specific in § 50.21(b)(2) or (3) or to Commission issuance of rules apply to all applications for design § 50.22 of this chapter or is a testing granting standard design certification certification. facility. The conclusions of the Staff Site for nuclear power facilities separate (1) An application for design Report will be reexamined by the staff from the filing of an application for a certification must contain: where five years or more have elapsed construction permit, duplicate design (i) The technical information required between the issuance of the Staff Site license, or combined license for such a of applicants for construction permits Report and its incorporation by facility. and operating licenses by 10 CFR parts reference in an application. 20, 50 and its appendices, and 10 CFR (c) Issuance of a Staff Site Report does § 52.103 Relationship to other subparts. parts 73 and 100, and that is technically not constitute a commitment to issue a (a) Subpart H of this part governs the relevant to the design and not site- permit or license, to permit on-site work issuance of licenses to manufacture specific; under § 50.10(e) of this chapter, or in nuclear power reactors to be installed (ii) Demonstration of compliance with any way affect the authority of the and operated at sites not identified in any technically relevant portions of the Commission, Atomic Safety and the manufacturing license application. Three Mile Island requirements set forth Licensing Board Panel, and other Subpart I of this part governs licenses to in 10 CFR 50.34(f); presiding officers in any proceeding construct and operate nuclear power (iii) The site parameters postulated for under 10 CFR part 2 of this chapter. reactors of duplicate design at multiple the design, and an analysis and sites. These subparts may be used evaluation of the design in terms of § 52.49 Relationship to other subparts. independently of the provisions in this those site parameters; The NRC staff will not conduct more subpart unless the applicant also wishes (iv) Proposed technical resolutions of than one review of site suitability issues to use a certified standard design those Unresolved Safety Issues and with regard to a particular site prior to approved under this subpart. medium- and high-priority Generic
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Safety Issues that are identified in the specifications and construction and describe the various options for the version of NUREG–0933 current on the installation specifications be completed configuration of the plant and site, date six months prior to application and and available for audit if the including variations in, or sharing of, that are technically relevant to the information is necessary for the common systems, interface design; Commission to make its safety requirements, and system interactions. (v) A design-specific probabilistic risk determination. The final safety analysis and the assessment; (3) The NRC staff shall advise the probabilistic risk assessment should (vi) Proposed inspections, tests, applicant on whether any technical also account for differences among the analyses, and acceptance criteria information beyond that required by various options, including any (ITAAC) that are necessary and this section must be submitted. restrictions which will be necessary sufficient to provide reasonable (b) This paragraph applies, according during the construction and startup of a assurance that, if the inspections, tests, to its provisions, to particular given module to ensure the safe and analyses are performed and the applications: operation of any module already acceptance criteria met, a plant that (1) The application for certification of operating. references the design is built and will a nuclear power plant design which is operate in accordance with the design an evolutionary change from light water § 52.109 Standards for review of certification, the provisions of the Act, reactor designs of plants which have applications. and the applicable Commission’s rules been licensed and in commercial Applications filed under this subpart and regulations. operation before April 18, 1989, must will be reviewed for compliance with (vii) The interface requirements to be provide an essentially complete nuclear the standards set out in 10 CFR parts 20, met by those portions of the plant for power plant design except for site- 50 and its appendices, and 10 CFR parts which the application does not seek specific elements such as the service 73 and 100 as they apply to applications certification. These requirements must water intake structure and the ultimate for construction permits and operating be sufficiently detailed to allow heat sink. licenses for nuclear power plants that completion of the final safety analysis (2) Certification of a standard design are technically relevant to the design and design-specific probabilistic risk that differs significantly from the light proposed for the facility. assessment required by paragraph water reactor designs described in § 52.111 Applicability of NRC (a)(1)(v) of this section; paragraph (b)(1) of this section or uses requirements. (viii) Justification that compliance simplified, inherent, passive, or other An applicant shall comply with all with the interface requirements of innovative means to accomplish its requirements in 10 CFR Chapter I paragraph (a)(1)(vii) of this section is safety functions will be granted only applicable to applicants for construction verifiable through inspection, testing if— permits and operating licenses under 10 (either in the plant or elsewhere), or (i)(A) The performance of each safety CFR Chapter I. analysis. The method to be used for feature of the design has been verification of interface requirements demonstrated through either analysis, § 52.113 Administrative review of must be included as part of the appropriate test programs, experience, applications. proposed inspections, tests, analyses, or a combination thereof; (a) A standard design certification is and acceptance criteria required by (B) Interdependent effects among the a rule that will be issued in accordance paragraph (a)(1)(vi) of this section; and safety features of the design have been with the provisions of subpart H of 10 (ix) A representative conceptual found acceptable by analysis, CFR part 2, as supplemented by the design for those portions of the plant for appropriate test programs, experience, provisions of this section. The which the application does not seek or a combination thereof; Commission shall initiate the certification, to aid the NRC staff in its (C) Sufficient data exist on the safety rulemaking after an application has review of the final safety analysis and features of the design to assess the been filed under this subpart and shall probabilistic risk assessment required analytical tools used for safety analyses specify the procedures to be used for the by paragraph (a)(1)(v) of this section, over a sufficient range of normal rulemaking. and to permit assessment of the operating conditions, transient (b) The rulemaking procedures must adequacy of the interface requirements conditions, and specified accident provide for notice and comment and an in paragraph (a)(1)(vii) of this section. sequences, including equilibrium core opportunity for an informal hearing (2) The application must contain a conditions; and before an Atomic Safety and Licensing level of design information sufficient to (D) The scope of the design is Board. The procedures for the informal enable the Commission to judge the complete except for site-specific hearing must include the opportunity applicant’s proposed means of assuring elements such as the service water for written presentations made under that construction conforms to the design intake structure and the ultimate heat oath or affirmation and for oral and to reach a final conclusion on all sink; or presentations and questioning if the safety questions associated with the (ii) There has been acceptable testing Board finds them either necessary for design before the certification is of a prototype plant over a sufficient the creation of an adequate record or the granted. The information submitted for range of normal operating conditions, most expeditious way to resolve a design certification must include transient conditions, and specified controversies. Ordinarily, the performance requirements and design accident sequences, including questioning in the informal hearing will information sufficiently detailed to equilibrium core conditions. If the be done by members of the Board, using permit the preparation of acceptance criterion in paragraph (b)(2)(i)(D) of this either the Board’s questions or questions and inspection requirements by the section is not met, the testing of the submitted to the Board by the parties. NRC, and procurement specifications prototype plant must demonstrate that The Board may also request authority and construction and installation the non-certified portion of the plant from the Commission to use additional specifications by an applicant. The cannot significantly affect the safe procedures, such as direct and cross Commission will require, prior to design operation of the plant. examination by the parties, or may certification, that information normally (3) An application seeking request that the Commission convene a contained in certain procurement certification of a modular design must formal hearing under subpart G of 10
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CFR part 2 on specific and substantial beyond the date of expiration in any security to be derived from the new disputes of fact, necessary for the hearing held under § 52.231 before requirements and that the direct and Commission’s decision, that cannot be operation begins under a combined indirect costs of implementing those resolved with sufficient accuracy except license that references the design requirements are justified in view of this in a formal hearing. The NRC staff will certification. increased protection. In addition, the be a party in the hearing. (c) An applicant for a construction applicant for renewal may request an (c) The decision in such a hearing will permit or a combined license may, at its amendment to the design certification. be based only on information on which own risk, reference in its application a The Commission shall grant the all parties have had an opportunity to design for which a design certification amendment request if it determines that comment, either in response to the application has been docketed but not the amendment will comply with the notice of proposed rulemaking or in the granted. Atomic Energy Act and the informal hearing. Commission’s regulations in effect at the § 52.121 Application for renewal. (d) Proprietary information will be time of renewal. If the amendment protected in the same manner and to the (a) Not less than twelve nor more than request entails such an extensive change same extent as proprietary information thirty-six months before the expiration to the design certification that an submitted in connection with of the initial fifteen-year period, or any essentially new standard design is being applications for construction permits later renewal period, any person may proposed, an application for a design and operating licenses under 10 CFR apply for renewal of the certification. certification must be filed in accordance part 50. However, the design An application for renewal must contain with this subpart. certification is published in 10 CFR all information necessary to bring up to (b) Denial of renewal does not bar the Chapter I. The provisions of 10 CFR date the information and data contained applicant, or another applicant, from 2.790 do not limit the protection in the previous application. The filing a new application for certification provided under this paragraph. Commission will require, prior to of the design, which proposes design renewal of certification, that changes that correct the deficiencies § 52.115 Referral to the ACRS. information normally contained in cited in the denial of the renewal. The Commission shall refer a copy of certain procurement specifications and the application to the Advisory construction and installation § 52.125 Duration of renewal. Committee on Reactor Safeguards specifications be completed and Each renewal of certification for a (ACRS). The ACRS shall report on those available for audit if this information is standard design will be for not less than portions of the application which necessary for the Commission to make ten nor more than fifteen years. concern safety. its safety determination. Notice and comment procedures must be used for a § 52.127 Finality of standard design § 52.117 Issuance of standard design rulemaking proceeding on the certifications. certification. application for renewal. The (a)(1) Notwithstanding any provision After conducting a rulemaking Commission, in its discretion, may in 10 CFR 50.109, while a standard proceeding under § 52.113 on an require the use of additional procedures design certification rule is in effect application for a standard design in individual renewal proceedings. under § 52.119 or 52.125, the certification and receiving the report to (b) A design certification, either Commission may not modify, rescind, be submitted by the Advisory original or renewed, for which a timely or impose new requirements on the Committee on Reactor Safeguards under application for renewal has been filed certification information, whether on its § 52.115, and upon determining that the remains in effect until the Commission own motion, or in response to a petition application meets the applicable has determined whether to renew the from any person, unless the standards and requirements of the certification. If the certification is not Commission determines in a rulemaking Atomic Energy Act and the renewed, it continues to be valid in that the change: Commission’s regulations, the certain proceedings, in accordance with (i) Is necessary either to bring the Commission shall issue a standard the provisions of § 52.119. certification information or the design certification in the form of a rule (c) The Commission shall refer a copy referencing plants into compliance with for the design which is the subject of the of the application for renewal to the the Commission’s regulations applicable application. Advisory Committee on Reactor and in effect at the time the certification Safeguards (ACRS). The ACRS shall was issued; § 52.119 Duration of certification. report on those portions of the (ii) Is necessary to provide adequate (a) Except as provided in paragraph application which concern safety and protection of the public health and (b) of this section, a standard design shall apply the criteria set forth in safety or the common defense and certification issued under this subpart is § 52.123. security; or valid for fifteen years from the date of (iii) Reduces unnecessary regulatory issuance. § 52.123 Criteria for renewal. burden and maintains protection to (b) A standard design certification (a) The Commission shall issue a rule public health and safety and the continues to be valid beyond the date of granting the renewal if the design, either common defense and security. expiration in any proceeding on an as originally certified or as modified (2) The rulemaking procedures must application for a combined license or an during the rulemaking on the renewal, provide for notice and comment and an operating license that references the complies with the Atomic Energy Act opportunity for the party which applied standard design certification and is and the Commission’s regulations for the certification to request an docketed either before the date of applicable and in effect at the time the informal hearing which uses the expiration of the certification, or, if a certification was issued. The procedures described in § 52.113 of this timely application for renewal of the Commission may impose other subpart. certification has been filed, before the requirements after it determines that (3) Any modification the NRC Commission has determined whether to there is a substantial increase in overall imposes on a design certification rule renew the certification. A design protection of the public health and under paragraph (a)(1) of this section certification also continues to be valid safety or the common defense and will be applied to all plants referencing
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the certified design, except those to the facility and these records must be power plant. With respect to the which the modification has been maintained and available for audit until requirements of § 50.34(a)(1) of this rendered technically irrelevant by the date of termination of the license. chapter, the submittal for review of a action taken under paragraphs (a)(3) or (c) The Commission will require, standard design must include the site (b)(1) of this section. prior to granting a construction permit, parameters postulated for the design, (4) While a design certification rule is combined license, or operating license and an analysis and evaluation of the in effect under § 52.119 or § 52.125, which references a standard design design in terms of the postulated site unless certification rule, that information parameters. The information submitted (i) a modification is necessary to normally contained in certain under § 50.34(a)(7) of this chapter, must secure compliance with the procurement specifications and be limited to the quality assurance Commission’s regulations applicable construction and installation program to be applied to the design, and in effect at the time the certification specifications be completed and procurement, and fabrication of the was issued, or to assure adequate available for audit if such information is structures, systems, and components for protection of the public health and necessary for the Commission to make which design review has been safety or the common defense and its safety determinations, including the requested. The information submitted security, and determination that the application is under § 50.34(a)(9) of this chapter must (ii) special circumstances as defined consistent with the certification be limited to the qualifications of the in 10 CFR 50.12(a) are present, the information. This information may be person submitting the standard design Commission may not impose new acquired by appropriate arrangements to design the reactor or major portion requirements by plant-specific order on with the design certification applicant. thereof. The submittal must also include any part of the design of a specific plant information pertaining to design referencing the design certification rule Subpart E—Standard Design features that affect plans for coping with if that part was approved in the design Approvals emergencies in the operation of the certification. In addition to the factors reactor or a major portion thereof. listed in 10 CFR 50.12(a), the § 52.131 Scope of subpart. Commission shall consider whether the This subpart sets out procedures for § 52.137 Referral to the ACRS. special circumstances which 10 CFR the filing, NRC staff review, and referral Once the NRC staff has initiated a 50.12(a)(2) requires to be present to the Advisory Committee on Reactor technical review of a submittal under outweigh any decrease in safety that Safeguards of standard designs for a this subpart, the submittal will be may result from the reduction in nuclear power reactor of the type referred to the Advisory Committee on standardization caused by the plant- described in § 50.22 of this chapter or Reactor Safeguards (ACRS) for a review specific order. major portions thereof. and report. (5) Except as provided in 10 CFR 2.758, in making the findings required § 52.133 Filing of applications. § 52.139 Staff approval of design. for issuance of a combined license or (a) Any person may submit a (a) Upon completion of their review of operating license, or for any hearing proposed preliminary or final standard a submittal under this subpart, the NRC under § 52.231, the Commission shall design for a nuclear power reactor of the staff shall publish a determination in treat as resolved those matters resolved type described in 10 CFR 50.22 to the the Federal Register as to whether or in connection with the issuance or NRC staff for its review. The submittal not the preliminary or final design is renewal of a design certification rule. may consist of either the preliminary or acceptable, subject to appropriate (b)(1) An applicant or licensee who final design for the entire reactor facility conditions, and make an analysis of the references a standard design or the preliminary or final design of design in the form of a report available certification rule may request an major portions thereof. at the NRC Web site, http:// exemption from one or more elements of (b) The submittal for review of the www.nrc.gov. the design certification information. The standard design must be made in the (b) A standard design approval issued Commission may grant such a request same manner and in the same number under this subpart is valid for 15 years only if it determines that the exemption of copies as provided in §§ 50.4 and from the date of issuance. A design will comply with the requirements of 10 50.30 of this chapter for license approval continues to be valid beyond CFR 50.12(a). In addition to the factors applications. the date of expiration in any proceeding listed in § 50.12(a), the Commission (c) The fees associated with the filing on an application for a construction shall consider whether the special and review of the application are set permit or an operating license which circumstances that § 50.12(a)(2) requires forth in 10 CFR part 170. references the design approval and is to be present outweigh any decrease in docketed before the date of expiration of § 52.135 Contents of applications. safety that may result from the the design approval. reduction in standardization caused by The submittal for review of the the exemption. The granting of an standard design must include the § 52.141 Finality of the design approval. exemption on request of an applicant information described in §§ 50.33 (a) (a) An approved design must be used must be subject to litigation in the same through (d) of this chapter and the by and relied upon by the NRC staff and manner as other issues in the operating applicable technical information the ACRS in their review of any license or combined license hearing. required by § 50.34 of this chapter, as individual facility license application (2) Subject to § 50.59, a licensee who appropriate (other than that required by that incorporates by reference a design references a standard design 10 CFR 50.34(a)(6) and (10), 50.34(b)(1), approved in accordance with this certification rule may make changes to (6)(i), (ii), (iv), and (v) and 50.34(b)(7) paragraph unless there exists significant the design of the nuclear power facility, and (8)), 10 CFR 50.34a, and new information that substantially without prior Commission approval, 52.107(a)(1)(i) through (v), and (vii). The affects the earlier determination or other unless the proposed change involves a submittal must also include a good cause. change to the design as described in the description, analysis, and evaluation of (b) The determination and report by rule certifying the design. The licensee the interfaces between the submitted the NRC staff do not constitute a shall maintain records of all changes to design and the balance of the nuclear commitment to issue a permit or
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license, or in any way affect the for a combined license for a nuclear accordance with the provisions of authority of the Commission, Atomic power facility with the Director of Subpart A of 10 CFR part 51. Safety and Licensing Board Panel, and Nuclear Reactor Regulation. The (3) If the application does not other presiding officers in any applicant shall comply with the filing reference an early site permit which proceeding under part 2 of this chapter. requirements of 10 CFR 50.30 (a) and contains a site redress plan as described (b), as they would apply to an in § 52.17(c), and if the applicant wishes § 52.143 Information requests. application for a nuclear power plant to be able to perform the activities at the Information requests to the approval construction permit. site allowed by 10 CFR 50.10(e)(1), then holder regarding an approved design (b) The fees associated with the filing the application must contain the must be evaluated prior to issuance to and review of the application are set information required by § 52.17(c). ensure that the burden to be imposed on forth in 10 CFR Part 170. (b) The application must contain the respondents is justified in view of the technically relevant information potential safety significance of the issue § 52.207 Contents of applications; general required of applicants for an operating to be addressed in the requested information. license by 10 CFR 50.34 in a final safety information. Each such evaluation The application must contain all of analysis report. performed by the NRC staff must be in the information required by 10 CFR (1) If the application does not accordance with 10 CFR 50.54(f) and 50.33, as that section would apply to reference a certified design, the must be approved by the Executive applicants for construction permits and application must comply with the Director for Operations or his or her operating licenses, and 10 CFR 50.33a, requirements of § 52.107(a)(2) for level designee prior to issuance of the as that section would apply to an of design information, and must contain request. applicant for a nuclear power plant the technical information required by construction permit. In particular, the §§ 52.107(a)(1) (i), (ii), (iv), and (3); Subpart F—[Reserved] applicant shall comply with the § 52.107(b)(2); and, if the design is requirement of 10 CFR 50.33a(b) modular, § 52.107(b)(3). Subpart G—Combined Licenses regarding the submission of antitrust (2) If the application does not § 52.201 Scope of subpart. information. reference a certified design, the application must contain a plant- This subpart sets out the requirements § 52.209 Contents of applications; training specific probabilistic risk assessment and procedures applicable to and qualification of nuclear power plant (PRA). Commission issuance of combined personnel. (3) If a prototype plant is used to licenses for nuclear power facilities. The application must describe the comply with the requirements of § 52.203 Relationship to other subparts. training program required by § 50.120 of § 52.107(b)(2), then the NRC may (a) An application for a combined this chapter. The training program impose additional licensing license under this subpart may, but described in the application must be requirements on siting, safety features, need not, reference a standard design established, implemented and or operational conditions for the certification or standard design approval maintained no later than eighteen (18) prototype plant to protect the public, issued under Subparts D or E of this months prior to the scheduled date for the plant staff, and the plant itself from part, or an early site permit or site report initial loading of fuel, as provided for in the possible consequences of failures issued under subparts A or B of this § 52.231(a). during the testing period. part. In the absence of a demonstration (4) An application referencing a § 52.211 Contents of applications; certified design must include in the that an entity other than the one technical information. originally sponsoring and obtaining a final safety analysis report the (a) Early site permit. design certification is qualified to information approved for incorporation (1) If the application references an supply such design, the Commission by reference in a design certification early site permit, the application need will entertain an application for a rule; describe those portions of the not contain information or analyses combined license that references a design that are not described in the submitted to the Commission in standard design certification issued certified design, such as the service connection with the early site permit, under subpart D of this part only if the water intake structure and the ultimate but must contain, in addition to the entity that sponsored and obtained the heat sink; demonstrate compliance with information and analyses otherwise certification supplies the certified the interface requirements established required: design for the applicant’s use. for the design under § 52.107(a)(1); and (b) The Commission will require, (i) Information sufficient to have available for audit procurement prior to granting a combined license that demonstrate that the design of the specifications and construction and references a standard design facility falls within the site parameters installation specifications in accordance certification, that information normally specified in the early site permit; with §§ 52.107(a)(2) and 52.203(b). contained in certain procurement (ii) Information necessary to resolve (5) An application referencing a specifications and construction and any other significant environmental certified design must include a plant- installation specifications be completed issue with respect to the site not specific PRA that uses the design- and available for audit if such considered in any previous proceeding specific PRA and is updated to account information is necessary for the on the site or the design; and for site-specific design information and Commission to make its safety (iii) A demonstration that all terms any design changes. determinations, including the and conditions of the early site permit (c) The application must include the determination that the application is have been satisfied. proposed inspections, tests and consistent with the certification (2) If the application does not analyses, including those applicable to information. reference an early site permit, the emergency planning, which the licensee applicant must comply with the shall perform and the acceptance § 52.205 Filing of applications. requirements of 10 CFR 50.30(f) by criteria that are necessary and sufficient (a) Any person except one excluded including with the application an to provide reasonable assurance that, if by 10 CFR 50.38 may file an application environmental report prepared in the inspections, tests, and analyses are
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performed and the acceptance criteria (ii) The application must contain any § 52.219 Referral to the ACRS. met, the facility has been constructed certifications that have been obtained. If The Commission shall refer a copy of and will operate in conformity with the these certifications cannot be obtained, the application to the Advisory combined license, the provisions of the the application must contain Committee on Reactor Safeguards Atomic Energy Act, and the NRC’s information, including a utility plan, (ACRS). The ACRS shall report on those regulations. sufficient to show that the proposed portions of the application that concern (1) If the application references a plans nonetheless provide reasonable safety and shall apply the criteria set certified standard design, the assurance that adequate protective forth in § 52.213, in accordance with the inspections, tests, analyses, and measures can and will be taken in the finality provisions of this part. acceptance criteria contained in the event of a radiological emergency at the certified design must apply to those site. § 52.221 Environmental review. portions of the facility design that are If the application references an early covered by the design certification. § 52.213 Standards for review of site permit and/or a design certification applications. (2) The application may include a rule, the environmental review must notification that a required inspection, Applications filed under this subpart focus on whether the design of the test, or analysis in the ITAAC has been will be reviewed according to the facility falls within the site parameters successfully completed and that the standards set out in 10 CFR parts 20, 50, specified in the early site permit and corresponding acceptance criterion has 51, 55, 73, and 100 as they apply to any other significant environmental been met. The Federal Register applications for construction permits issue not considered in any previous notification required by § 52.217 must and operating licenses for nuclear proceeding on the site or the design. If indicate that the application includes power plants, and as those standards are the application does not reference an this notification. technically relevant to the design early site permit, the environmental (d) The application must contain proposed for the facility. review procedures set out in 10 CFR emergency plans that provide part 51 with respect to a construction § 52.215 Applicability of NRC permit must be followed, including the reasonable assurance that adequate requirements. protective measures can and will be issuance of a final environmental taken in the event of a radiological (a) An applicant shall comply with all impact statement, but excluding the emergency at the site. requirements in 10 CFR Chapter I issuance of a supplement under 10 CFR (1) If the application references an applicable to applicants for construction 51.95(a). permits and limited work authorizations early site permit, the application may § 52.223 Authorization to conduct site incorporate by reference emergency under 10 CFR 50.10. activities. plans, or major features of emergency (b) After a combined license is issued (a)(1) If the application references an plans, approved in connection with the but before the Commission has early site permit that contains a site issuance of the permit. If the application authorized operation under § 52.231, the redress plan as described in § 52.17(c) incorporates by reference an emergency licensee shall comply with all the applicant is authorized by § 52.25 to plan or major features of such a plan, requirements in this chapter of Title 10 perform the site preparation activities the application must include applicable to holders of construction described in 10 CFR 50.10(e)(1). information that updates and corrects permits for nuclear power reactors. (2) If the application does not the information previously provided (c) After the Commission has reference an early site permit which under § 52.17(b), and discuss whether authorized operation under § 52.231, the contains a redress plan, the applicant the new information materially changes licensee shall comply with all may not perform the site preparation the bases for compliance with the requirements in 10 CFR Chapter I activities allowed by 10 CFR 50.10(e)(1) applicable requirements. New applicable to holders of operating without first submitting a site redress information that materially changes the licenses for nuclear power reactors. Any plan in accord with § 52.211(a)(3) and bases for the Commission’s limitations contained in 10 CFR part 50 obtaining the separate authorization determination on the matters in regarding applicability of the provisions required by 10 CFR 50.10(e)(1). § 52.17(b) must be subject to litigation to certain classes of facilities continue to Authorization may be granted only after during the combined license proceeding apply. Provisions of 10 CFR part 50 that the presiding officer in the proceeding in the same manner as other issues do not apply to holders of combined on the application has made the material to those proceedings. licenses issued under this subpart findings and determination required by (2)(i) If the application does not include §§ 50.55(a), (b) and (d), and 10 CFR 50.10(e)(2) and has determined reference an early site permit, or if no 50.58(a). that the site redress plan meets the emergency plans were approved in criteria in § 52.17(c). connection with the issuance of the § 52.217 Administrative review of (3) Authorization to conduct the applications. permit, the applicant shall make good activities described in 10 CFR faith efforts to obtain certifications from A proceeding on a combined license 50.10(e)(3)(i) may be granted only after the local and State governmental is subject to all applicable procedural the presiding officer in the combined agencies with emergency planning requirements contained in 10 CFR part license proceeding makes the additional responsibilities that: 2, including the requirements for finding required by 10 CFR (A) The proposed emergency plans docketing (§ 2.101) and issuance of a 50.10(e)(3)(ii). are practicable; notice of hearing (§ 2.104). If an (b) If, after an applicant for a (B) These agencies are committed to applicant requests a Commission combined license has performed the participating in any further finding on certain ITAAC with the activities permitted by paragraph (a) of development of the plans, including any issuance of the combined license, then this section, the application for the required field demonstrations; and those ITAAC will be identified in the license is withdrawn or denied, and the (C) These agencies are committed to notice of hearing. All hearings on early site permit referenced by the executing their responsibilities under combined licenses are governed by the application expires, then the applicant the plans in the event of an emergency. procedures contained in 10 CFR part 2. shall redress the site in accord with the
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terms of the site redress plan. If a use operated in conformity with the license, (b) With respect to activities subject to not envisaged in the redress plan is the provisions of the Act, and the an ITAAC, an applicant for a combined found for the site or parts thereof before Commission’s rules and regulations. license may proceed at its own risk with redress is complete, the applicant shall (2) Any modification to, addition to, design and procurement activities, and carry out the redress plan to the greatest or deletion from the terms of a a licensee may proceed at its own risk extent possible consistent with the combined license, including any with design, procurement, construction, alternate use. modification to, addition to, or deletion and pre-operational activities, even from the inspections, tests, analyses, or though the NRC may not have found § 52.225 Exemptions and variances. related acceptance criteria contained in that any particular ITAAC has been (a) Applicants for a combined license the license is a proposed amendment to satisfied. under this subpart, or any amendment the license. There must be an (c) The licensee shall notify the NRC to a combined license, may include in opportunity for a hearing on these that the inspections, tests, or analyses in the application a request, under 10 CFR amendments. the ITAAC have been successfully 50.12, for an exemption from one or (3) The Commission may issue and completed and that the corresponding more of the Commission’s regulations, make immediately effective any acceptance criteria have been met. including any part of a design amendment to a combined license upon (d) In the event that an activity is certification rule. The Commission may a determination by the Commission that subject to an ITAAC and the licensee grant such a request if it determines that the amendment involves no significant has not demonstrated that the ITAAC the exemption will comply with the hazards consideration, notwithstanding has been satisfied, the licensee may take requirements of 10 CFR 50.12(a) or the pendency before the Commission of corrective actions to successfully 52.127(b)(1) if the exemption includes a request for a hearing from any person. complete that ITAAC, request an any part of the design certification rule. The amendment may be issued and exemption from the ITAAC in (b) An applicant for a combined made immediately effective in advance accordance with the applicable change license, or any amendment to a of the holding and completion of any process in the referenced design combined license, who has filed an required hearing. The amendment will certification rule, or request a license application referencing an early site be processed in accordance with the amendment under § 52.227(b), as permit issued under this subpart may procedures specified in 10 CFR 50.91. applicable. include in the application a request for (c) If the combined license does not a variance from one or more elements of (e) The NRC staff shall ensure that the reference a certified design, then a the permit. In determining whether to required inspections, tests, and analyses licensee may make changes in the grant the variance, the Commission in the ITAAC are performed. At facility as described in the final safety shall apply the same technically appropriate intervals during analysis report (as updated), make relevant criteria as were applicable to construction, the NRC shall publish changes in the procedures as described the application for the original or notices in the Federal Register of the in the final safety analysis report (as renewed site permit. Issuance of the successful completion of inspections, updated), and conduct tests or variance is subject to litigation during tests, and analyses. experiments not described in the final the combined license proceeding in the safety analysis report (as updated) under § 52.231 Operation under a combined same manner as other issues material to the applicable change processes in 10 license. that proceeding. CFR part 50 (e.g., § 50.54, § 50.59, or (a) Not less than one hundred and § 52.227 Issuance of combined licenses. § 50.90). eighty days before the date scheduled (a)(1) The Commission shall issue a (d) If the combined license references for initial loading of fuel into a plant by combined license for a nuclear power a certified design, then— a licensee that has been issued a facility upon finding that the applicable (1) Changes to or departures from combined license under Subpart G of requirements of 10 CFR 50.40, 50.42, information within the scope of the this part, the Commission shall publish 50.43, 50.47, and 50.50 have been met, referenced design certification rule are notice of intended operation in the and that there is reasonable assurance subject to the applicable change Federal Register. That document must that the facility will be constructed and processes in that rule; and provide that any person whose interest will operate in conformity with the (2) Changes that are not within the may be affected by operation of the license, the provisions of the Act, and scope of the referenced design plant may, within 60 days, request that the Commission’s rules and regulations. certification rule are subject to the the Commission hold a hearing on (2) The Commission may also find, at applicable change processes in 10 CFR whether the facility as constructed the time it issues the combined license, part 50 unless they involve changes to complies, or on completion will that certain acceptance criteria in one or or non-compliance with information comply, with the acceptance criteria of more of the inspections, tests, analyses, within the scope of the referenced the ITAAC in the combined license, and acceptance criteria (ITAAC) in the design certification rule, in which case except for those ITAAC that the combined license have been met. Such the applicable provisions of this section Commission found were met under a finding will preclude any required and/or the design certification rule § 52.227(a)(2). finding under § 52.231(g) with respect to apply. (b) A request for hearing under that ITAAC. (e) A combined license is issued for paragraph (a) of this section must show, (b)(1) The Commission shall identify a specified period not to exceed 40 years prima facie, that— within the combined license the from the date on which the Commission (1) One or more of the acceptance inspections, tests, and analyses, makes the finding required under criteria of the ITAAC in the combined including those applicable to emergency § 52.231(g). license have not been, or will not be planning, that the licensee shall met; and perform, and the acceptance criteria § 52.229 Inspection during construction. (2) The specific operational that, if met, are necessary and sufficient (a) Holders of combined licenses shall consequences of nonconformance that to provide reasonable assurance that the comply with the provisions of 10 CFR would be contrary to providing facility has been constructed and will be 50.70 and 50.71. reasonable assurance of adequate
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protection of the public health and Commission action in such proceeding. license issued under this subpart need safety. However, subsequent changes to the not contain the information or analyses (c) After receiving a request for a facility or procedures described in the that have been previously approved by hearing, the Commission expeditiously final safety analysis report (as updated) the Commission in connection with the shall either deny or grant the request. If must comply with the requirements in issuance of the manufacturing license. the request is granted, the Commission § 52.227(c) or (d), as applicable. The application must reference the shall determine, after considering manufacturing license, and provide petitioners’ prima facie showing and Subpart H—Manufacturing Licenses sufficient information to demonstrate any answers thereto, whether during a that the site on which the reactor(s) is § 52.241 Scope of subpart. period of interim operation, there will to be located and operated fits within be reasonable assurance of adequate (a) Section 101 of the Atomic Energy the postulated site parameters specified protection of the public health and Act of 1954, as amended, and § 50.10 of in the manufacturing license. safety. If the Commission determines this chapter require a Commission (b) Amendment of manufacturing that there is such reasonable assurance, license to transfer or receive in license to reflect final reactor design. it shall allow operation during an interstate commerce, manufacture, The holder of a manufacturing license interim period under the combined produce, transfer, acquire, possess, use, issued under this subpart shall submit license. import or export any production or to the Commission the final design of (d) The Commission, in its discretion, utilization facility. The regulations in 10 the nuclear power reactor(s) covered by shall determine appropriate hearing CFR part 50 require the issuance of a the license as soon as such design has procedures, whether informal or formal construction permit by the Commission been completed. The submittal must be adjudicatory, for any hearing under before commencement of construction in the form of an application for paragraph (a) of this section, and shall of a production or utilization facility, amendment of the manufacturing state its reasons therefor. and the issuance of an operating license license. (e) The Commission shall, to the before operation of the facility. The (c) Application for construction maximum possible extent, render a provisions of 10 CFR part 50 relating to permit or combined license referencing decision on issues raised by the hearing the facility licensing process are, in a manufacturing license. An application request within 180 days of the general, predicated on the assumption for a permit to construct a nuclear publication of the notice provided by that the facility will be assembled and power reactor(s) or a combined license paragraph (a) of this section or the constructed on the site at which it is to that is the subject of an application for anticipated date for initial loading of be operated. In those circumstances, a manufacturing license pursuant to this fuel into the reactor, whichever is later. both facility design and site-related subpart need not contain information or (f) A petition to modify the terms and issues can be considered in the initial, analyses that have previously been conditions of the combined license will construction permit stage of the submitted to the Commission in be processed as a request for action in licensing process. connection with the application for a accord with 10 CFR 2.206. The (b) Under the Atomic Energy Act, a manufacturing license. However, the petitioner shall file the petition with the license may be sought and issued application must comply with Secretary of the Commission. Before the authorizing the manufacture of facilities §§ 50.34(a) and 50.34a of this chapter, licensed activity allegedly affected by but not their construction and and provide sufficient information to the petition (fuel loading, low power installation at the sites on which the demonstrate that the site on which the testing, etc.) commences, the facilities are to be operated. Prior to the reactor(s) is to be operated falls within Commission shall determine whether ‘‘commencement of construction,’’ as the postulated site parameters specified any immediate action is required. If the defined in § 50.10(c) of this chapter, of in the relevant manufacturing license petition is granted, then an appropriate a facility (manufactured under such a application. order will be issued. Fuel loading and Commission license) on the site at (d) Approval of construction permit or operation under the combined license which it is to operate—that is combined license referencing a will not be affected by the granting of preparation of the site and installation manufacturing license. The Commission the petition unless the order is made of the facility—a construction permit, may issue a permit to construct a immediately effective. combined license, or duplicate plant nuclear power reactor(s) or a combined (g) Prior to operation of the facility, license that, among other things, reflects license that is the subject of an the Commission shall find that the approval of the site on which the facility application for a manufacturing license acceptance criteria of the ITAAC in the is to be operated, must be issued by the pursuant to this subpart if the combined license are met, except for Commission. This subpart sets out the Commission— those ITAAC that the Commission particular requirements and provisions (1) Finds that the site on which the found were met under § 52.227(a)(2). If applicable to situations where nuclear reactor is to be operated falls within the the combined license is for a modular power reactors to be manufactured postulated site parameters specified in design, each reactor module may require under a Commission license and the relevant application for a a separate finding as construction subsequently installed at the site under manufacturing license; and proceeds. a Commission construction permit, (2) Makes the findings otherwise (h) After the Commission has made combined license, or duplicate plant required by 10 CFR part 50. A the finding in paragraph (g) of this license, are of the type described in construction permit or combined license section, the ITAAC do not, by virtue of § 50.22 of this chapter. may not be issued until the relevant their inclusion in the design manufacturing license has been issued. certification rule or combined license, § 52.243 Relationship to other subparts. (e) Approval of operating license constitute regulatory requirements (a) Referencing a manufacturing referencing a manufacturing license. An either for licensees or for renewal of the license. An application for a operating license for a nuclear power license; except for specific ITAAC, construction permit, operating license reactor(s) that has been manufactured which are the subject of a hearing under or combined license to construct a under a Commission license issued paragraph (a) of this section, their nuclear power plant which is to be under this subpart may be issued by the expiration will occur upon final manufactured under a manufacturing Commission under 10 CFR 50.57 and
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subpart A of part 51 of this chapter within the postulated site parameters. § 52.253 Issuance of manufacturing except that the Commission shall find, The related draft and final license. under 10 CFR 50.57(a)(1), that environmental impact statement (a) The Commission may issue a construction of the reactor(s) has been prepared by the NRC staff will be license to manufacture one or more substantially completed in conformity similarly directed. nuclear power reactors to be operated at with both the manufacturing license and (c) The financial information sites not identified in the license the construction permit and the submitted under § 50.33(f) of this application if the Commission finds applications therefor, as amended, and chapter and Appendix C of part 50 must that: the provisions of the Act, and the rules be directed at a demonstration of the (1) The applicant has described the and regulations of the Commission. financial qualifications of the applicant proposed design of and the site Notwithstanding the other provisions of for the manufacturing license to carry parameters postulated for the reactor(s), this paragraph, no application for an out the manufacturing activity for which including, but not limited to, the operating license for a nuclear power the license is sought. principal architectural and engineering reactor(s) that has been manufactured (d) The fees associated with the filing criteria for the design, and has under a Commission license issued and review of the application are set identified the major features of under this subpart will be docketed forth in 10 CFR part 170. components incorporated therein for the until the application for an amendment protection of the health and safety of the to the relevant manufacturing license § 52.247 Standards for review of public. required by § 52.249 has been docketed. application. (2) Further technical or design (f) Prohibition against transport of information that may be required to nuclear power reactor manufactured Applications filed under this subpart will be reviewed for compliance with complete the design report and which under this subpart. The prohibition in can reasonably be left for later § 50.10(c) of this chapter against the standards set out in 10 CFR part 20, part 50 and its appendices, and parts 73 consideration, will be supplied in a commencement of construction of a supplement to the design report. production or utilization facility prior to and 100 as they apply to applications for construction permits and operating (3) Safety features or components, if issuance of a construction permit any, that require research and applies to the transport of a nuclear licenses for nuclear power plants, except as otherwise specified in this development have been described by power reactor(s) manufactured pursuant the applicant and the applicant has to this subpart from the manufacturing subpart or as the context otherwise indicates. The requirement in § 50.58 of identified, and there will be conducted facility to the site at which the reactor(s) a research and development program will be installed and operated. In this chapter for review of the application by the Advisory Committee reasonably designed to resolve any addition, such nuclear power reactor(s) safety questions associated with the may not be removed from the on Reactor Safeguards and the holding of a public hearing, apply in context, features of components; and manufacturing site until the final design (4) On the basis of the foregoing, there of the reactor(s) has been approved by with respect to matters of radiological health and safety, environmental is reasonable assurance that: the Commission in accordance with (i) Such safety questions will be § 52.249. protection, and the common defense and security, to licenses under this satisfactorily resolved before any of the § 52.245 Filing and contents of subpart to manufacture nuclear power proposed nuclear power reactor(s) are applications. reactors (manufacturing licenses) to be removed from the manufacturing site; (a) An application for a manufacturing operated at sites not identified in the and license under this subpart must be license application. (ii) Taking into consideration the site submitted, as specified in § 50.4 of this criteria contained in part 100 of this chapter and meet all the requirements of § 52.249 Applicability of NRC chapter, the proposed reactor(s) can be requirements. §§ 50.34(a)(1)–(9) and 50.34a(a) and (b) constructed and operated at sites having of this chapter except that the An applicant shall comply with all characteristics that fall within the site preliminary safety analysis report must requirements in this chapter of Title 10 parameters postulated for the design of be designated as a ‘‘design report’’ and applicable to applicants for construction the reactor(s) without undue risk to the any required information or analyses permits and operating licenses under health and safety of the public. relating to site matters must be this chapter of Title 10, except (5) The applicant is technically and predicated on postulated site parameters §§ 50.10(b) and (c), 50.12(b), 50.23, financially qualified to design and which must be specified in the 50.30(d), 50.34(a)(10), 50.34a(c), manufacture the proposed nuclear application. The application must also 50.35(a) and (c), 50.40(a), 50.45, power reactor(s). include information pertaining to design 50.55(d), 50.56 of this chapter and (6) The issuance of a license to the features of the proposed reactor(s) that Appendix J of 10 CFR part 50 do not applicant will not be inimical to the affect plans for coping with emergencies apply to manufacturing licenses. common defense and security or to the in the operation of the reactor(s). Appendices E and H of 10 CFR part 50 health and safety of the public. (b) An applicant for a manufacturing apply to manufacturing licenses only to (7) On the basis of the evaluations and license under this subpart shall submit the extent that the requirements of these analyses of the environmental effects of with the application an environmental appendices involve facility design the proposed action required by subpart report as required of applicants for features. A of part 51 of this chapter and construction permits in accordance with § 52.245(b), the action called for is the subpart A of part 51 of this chapter. § 52.251 Referral to the ACRS. issuance of the license. However, the report must be directed at The Commission shall refer a copy of (b) When an applicant has supplied the manufacture of the reactor(s) at the the application to the Advisory initially all of the technical information manufacturing site; and, in general Committee on Reactor Safeguards required to complete the application, terms, at the construction and operation (ACRS). The ACRS shall report on those including the final design of the of the reactor(s) at a hypothetical site or portions of the application which reactor(s), the findings required for the sites having characteristics that fall concern safety. issuance of the license will be
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appropriately modified to reflect that (c) This subpart sets out the particular include the information required by fact. requirements and provisions applicable §§ 50.33, 50.34(b) and (c), and 50.34a(c) (c) Each manufacturing license issued to situations in which applications are of this chapter. The applicant shall also under this subpart will specify the filed by one or more applicants for submit the information required by number of nuclear power reactors licenses to construct and operate § 51.53 of this chapter. For the technical authorized to be manufactured and the nuclear power reactors of essentially the information required by §§ 50.34(b)(2) latest date of the completion of the same design to be located at different through (5) and 50.34a(c), reference may manufacture of all such reactors. Upon sites. be made to a single final safety analysis good cause shown, the Commission will (d) If the design for the power of the design. extend the completion date for a reactor(s) proposed in a particular (d) The fees associated with the filing reasonable period of time. application is not identical to the others, and review of the application are set that application may not be processed forth in 10 CFR part 170. § 52.255 Duration of design approval. under this subpart and subpart D of part A nuclear plant design that is 2 of this chapter. Subpart J—[Reserved] approved as part of the issuance of a manufacturing license is valid for five § 52.263 Relationship to other subparts. Subpart K—[Reserved] years from the date of issuance of the Except as otherwise specified in this manufacturing license. subpart or as the context otherwise Subpart L—[Reserved] indicates, the provisions of 10 CFR part § 52.257 Finality of the manufacturing 50, applicable to construction permits Subpart M—Enforcement license. and operating licenses, including the In making the findings required by requirement in § 50.58 of this chapter § 52.401 Violations. this part for the issuance of a for review of the application by the (a) The Commission may obtain an construction permit or an operating Advisory Committee on Reactor injunction or other court order to license for a nuclear power reactor(s) Safeguards and the holding of public prevent a violation of the provisions that has been manufactured under a hearings, apply to construction permits of— Commission license issued under this and operating license subject to this (1) The Atomic Energy Act of 1954, as subpart, or an amendment to such a subpart. amended; manufacturing license, construction (2) Title II of the Energy permit, or operating license, the § 52.265 Filing and contents of Reorganization Act of 1974, as Commission will treat as resolved those applications. amended; or matters which have been resolved at an (a) Applications for construction (3) A regulation or order issued under earlier stage of the licensing process, permits submitted under this subpart those Acts. unless there exists significant new must include the information required (b) The Commission may obtain a information that substantially affects the by §§ 50.33, 50.33a, 50.34(a) and 50.34a court order for the payment of a civil conclusion(s) reached at the earlier stage (a) and (b) of this chapter, and be penalty imposed under Section 234 of or other good cause. submitted as specified in § 50.4 of this the Atomic Energy Act: chapter. The applicant shall also submit (1) For violations of— Subpart I—Duplicate Design Licenses the information required by § 51.50 of (i) Section 53, 57, 62, 63, 81, 82, 101, this chapter. 103, 104, 107, or 109 of the Atomic § 52.261 Scope of subpart. (b) For the technical information Energy Act of 1954, as amended; (a) Section 101 of the Atomic Energy required by §§ 50.34(a)(1) through (5) (ii) Section 206 of the Energy Act of 1954, as amended, and § 50.10 of and (8) and 50.34a (a) and (b) of this Reorganization Act; this chapter require a Commission chapter, reference may be made to a (iii) Any rule, regulation, or order license to transfer or receive in single preliminary safety analysis of the issued under the sections specified in interstate commerce, manufacture, design 1 which, for the purposes of 10 paragraph (b)(1)(i) of this section; produce, transfer, acquire, possess, use, CFR 50.34(a)(1) includes one set of site (iv) Any term, condition, or limitation import or export any production or parameters postulated for the design of of any license issued under the sections utilization facility. The regulations in 10 the reactors, and an analysis and specified in paragraph (b)(1)(i) of this CFR part 50 require the issuance of a evaluation of the reactors in terms of section. construction permit by the Commission such postulated site parameters. This (2) For any violation for which a before commencement of construction single preliminary safety analysis must license may be revoked under section of a production or utilization facility, also include information pertaining to 186 of the Atomic Energy Act of 1954, except as provided in § 50.10(e) of this design features of the proposed reactors as amended. chapter, and the issuance of an that affect plans for coping with operating license before the operation of emergencies in the operation of the § 52.403 Criminal penalties. the facility. reactors, and must describe the quality (a) Section 223 of the Atomic Energy (b) The Commission’s regulations in assurance program with respect to Act of 1954, as amended, provides for 10 CFR part 2 specifically provide for aspects of design, fabrication, criminal sanctions for willful violation the holding of hearings on particular procurement and construction that are of, attempted violation of, or conspiracy issues separately from other issues common to all of the reactors. to violate, any regulation issued under involved in hearings in licensing (c) Applications for operating licenses sections 161b, 161i, or 161o of the Act. proceedings (10 CFR 2.761a and 10 CFR submitted pursuant to this subpart must For purposes of section 223, all the part 2, appendix A, section I(c)), and for regulations in this part 52 are issued the consolidation of adjudicatory 1 As used in this subpart, the design of a nuclear under one or more of sections 161b, proceedings and of the presentations of power reactor included in a single referenced safety 161i, or 160o, except for the sections analysis report means the design of those structures, parties in adjudicatory proceedings such systems, and components important to radiological listed in paragraph (b) of this section. as licensing proceedings (10 CFR 2.715a health and safety and the common defense and (b) The regulations in this part 52 that and 2.716). security. are not issued under sections 161b,
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161i, or 161o for the purposes of section specifications and conceptual design the generic DCD, and the ‘‘Technical Support 223 are as follows: §§ 52.1, 52.3, 52.5, information; Document for the ABWR’’ are not part of this 52.8, 52.11, 52.13, 52.15, 52.17, 52.18, 2. Information required for a final safety appendix. Tier 2 references to the 52.19, 52.21, 52.23, 52.24, 52.27, 52.29, analysis report under 10 CFR 50.34; probabilistic risk assessment (PRA) in the 3. Supporting information on the ABWR Standard Safety Analysis Report do 52.31, 52.33, 52.37, 52.39, 52.101, inspections, tests, and analyses that will be not incorporate the PRA into Tier 2. 52.103, 52.105, 52.107, 52.109, 52.111, performed to demonstrate that the acceptance C. If there is a conflict between Tier 1 and 52.113, 52.115, 52.117, 52.119, 52.121, criteria in the ITAAC have been met; and Tier 2 of the DCD, then Tier 1 controls. 52.123, 52.125, 52.201, 52.203, 52.205, 4. Combined license (COL) action items D. If there is a conflict between the generic 52.207, 52.209, 52.211, 52.213, 52.215, (COL license information), which identify DCD and either the application for design 52.217, 52.219, 52.221, 52.225, 52.227, certain matters that shall be addressed in the certification of the U.S. ABWR design or 52.231, 52.401, 52.403. site-specific portion of the final safety NUREG–1503, ‘‘Final Safety Evaluation analysis report (FSAR) by an applicant who Report related to the Certification of the Appendix A—Design Certification Rule references this appendix. These items Advanced Boiling Water Reactor Design,’’ for the U.S. Advanced Boiling Water constitute information requirements but are (FSER) and Supplement No. 1, then the Reactor not the only acceptable set of information in generic DCD controls. the FSAR. An applicant may depart from or E. Design activities for structures, systems, I. Introduction omit these items, provided that the departure and components that are wholly outside the Appendix A constitutes the standard or omission is identified and justified in the scope of this appendix may be performed design certification for the U.S. Advanced FSAR. After issuance of a construction using site-specific design parameters, Boiling Water Reactor (ABWR) design, in permit or COL, these items are not provided the design activities do not affect accordance with 10 CFR part 52, subpart B. requirements for the licensee unless such the DCD or conflict with the interface The applicant for certification of the U.S. items are restated in the FSAR. requirements. ABWR design was GE Nuclear Energy. F. Tier 2* means the portion of the Tier 2 information, designated as such in the IV. Additional Requirements and Restrictions II. Definitions generic DCD, which is subject to the change A. An applicant for a license that wishes A. Generic design control document process in Section VIII.B.6 of this appendix. to reference this appendix shall, in addition (generic DCD) means the document This designation expires for some Tier 2* to complying with the requirements of 10 containing the Tier 1 and Tier 2 information information under Section VIII.B.6. CFR 52.207, 52.209, and 52.211, comply with and generic technical specifications that is G. Departure from a method of evaluation the following requirements: incorporated by reference into this appendix. described in the plant-specific DCD used in 1. Incorporate by reference, as part of its B. Generic technical specifications means establishing the design bases or in the safety application, this appendix; the information, required by 10 CFR 50.36 analyses means: (i) Changing any of the 2. Include, as part of its application: and 50.36a, for the portion of the plant that elements of the method described in the a. A plant-specific DCD containing the is within the scope of this appendix. plant-specific DCD unless the results of the same information and utilizing the same C. Plant-specific DCD means the document, analysis are conservative or essentially the organization and numbering as the generic maintained by an applicant or licensee who same; or (ii) Changing from a method DCD for the U.S. ABWR design, as modified references this appendix, consisting of the described in the plant-specific DCD to and supplemented by the applicant’s information in the generic DCD, as modified another method unless that method has been exemptions and departures; and supplemented by the plant-specific approved by NRC for the intended b. The reports on departures from and departures and exemptions made under application. updates to the plant-specific DCD required by Section VIII of this appendix. H. All other terms in this appendix have Section X.B of this appendix; D. Tier 1 means the portion of the design- the meaning set out in 10 CFR 50.2, 10 CFR c. Plant-specific technical specifications, related information contained in the generic 52.3, or section 11 of the Atomic Energy Act consisting of the generic and site-specific DCD that is approved and certified by this of 1954, as amended, as applicable. technical specifications, that are required by appendix (hereinafter Tier 1 information). 10 CFR 50.36 and 50.36a; The design descriptions, interface III. Scope and Contents d. Information demonstrating compliance requirements, and site parameters are derived A. Tier 1, Tier 2, and the generic technical with the site parameters and interface from Tier 2 information. Tier 1 information specifications in the U.S. ABWR Design requirements; includes: Control Document, GE Nuclear Energy, e. Information that addresses the COL 1. Definitions and general provisions; Revision 4 dated March 1997, are approved action items; and 2. Design descriptions; for incorporation by reference by the Director f. Information required by 10 CFR 52.107(a) 3. Inspections, tests, analyses, and of the Office of the Federal Register in that is not within the scope of this appendix. acceptance criteria (ITAAC); accordance with 5 U.S.C. 552(a) and 1 CFR 3. Physically include, in the plant-specific 4. Significant site parameters; and part 51. Copies of the generic DCD may be DCD, the proprietary information and 5. Significant interface requirements. obtained from the National Technical safeguards information referenced in the U.S. E. Tier 2 means the portion of the design- Information Service, 5285 Port Royal Road, ABWR DCD. related information contained in the generic Springfield, VA 22161. A copy is available B. The Commission reserves the right to DCD that is approved but not certified by this for examination and copying at the NRC determine in what manner this appendix appendix (hereinafter Tier 2 information). Public Document Room located at One White may be referenced by an applicant for a Compliance with Tier 2 is required, but Flint North, 11555 Rockville Pike (first floor), construction permit or operating license generic changes to and plant-specific Rockville, Maryland 20852. Copies are also under 10 CFR part 50. departures from Tier 2 are governed by available for examination at the NRC Library Section VIII of this appendix. Compliance located at Two White Flint North, 11545 V. Applicable Regulations with Tier 2 provides a sufficient, but not the Rockville Pike, Rockville, Maryland 20582 A. Except as indicated in Paragraph B of only acceptable, method for complying with and the Office of the Federal Register, 800 this section, the regulations that apply to the Tier 1. Compliance methods differing from North Capitol Street, NW., Suite 700, U.S. ABWR design are in 10 CFR parts 20, Tier 2 must satisfy the change process in Washington DC. 50, 73, and 100, codified as of May 2, 1997, Section VIII of this appendix. Regardless of B. An applicant or licensee referencing this that are applicable and technically relevant, these differences, an applicant or licensee appendix, in accordance with Section IV of as described in the FSER (NUREG–1503) and must meet the requirement in Section III.B of this appendix, shall incorporate by reference Supplement No. 1. this appendix to reference Tier 2 when and comply with the requirements of this B. The U.S. ABWR design is exempt from referencing Tier 1. Tier 2 information appendix, including Tier 1, Tier 2, and the portions of the following regulations: includes: generic technical specifications except as 1. Paragraph (f)(2)(iv) of 10 CFR 50.34— 1. Information required by 10 CFR 52.107, otherwise provided in this appendix. Separate Plant Safety Parameter Display with the exception of generic technical Conceptual design information, as set forth in Console;
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2. Paragraph (f)(2)(viii) of 10 CFR 50.34— matters resolved within the meaning of 10 VII. Duration of This Appendix Post-Accident Sampling for Boron, Chloride, CFR 52.127(a)(4). The Commission reserves This appendix may be referenced for a and Dissolved Gases; and the right to require operational requirements period of 15 years from June 11, 1997, except 3. Paragraph (f)(3)(iv) of 10 CFR 50.34— for an applicant or licensee who references as provided for in 10 CFR 52.119(b) and Dedicated Containment Penetration. this appendix by rule, regulation, order, or 52.121(b). This appendix remains valid for an VI. Issue Resolution license condition. applicant or licensee who references this D. Except in accordance with the change appendix until the application is withdrawn A. The Commission has determined that processes in Section VIII of this appendix, or the license expires, including any period the structures, systems, components, and the Commission may not require an applicant of extended operation under a renewed design features of the U.S. ABWR design or licensee who references this appendix to: license. comply with the provisions of the Atomic Energy Act of 1954, as amended, and the 1. Modify structures, systems, components, VIII. Processes for Changes and Departures or design features as described in the generic applicable regulations identified in Section V A. Tier 1 Information of this appendix; and therefore, provide DCD; adequate protection to the health and safety 2. Provide additional or alternative 1. Generic changes to Tier 1 information of the public. A conclusion that a matter is structures, systems, components, or design are governed by the requirements in 10 CFR resolved includes the finding that additional features not discussed in the generic DCD; or 52.127(a)(1). or alternative structures, systems, 3. Provide additional or alternative design 2. Generic changes to Tier 1 information components, design features, design criteria, criteria, testing, analyses, acceptance criteria, are applicable to all applicants or licensees testing, analyses, acceptance criteria, or or justification for structures, systems, who reference this appendix, except those for justifications are not necessary for the U.S. components, or design features discussed in which the change has been rendered ABWR design. the generic DCD. technically irrelevant by action taken under paragraphs A.3 or A.4 of this section. B. The Commission considers the E.1. Persons who wish to review 3. Departures from Tier 1 information that following matters resolved within the proprietary and safeguards information or are required by the Commission through meaning of 10 CFR 52.127(a)(4) in other secondary references in the DCD for the plant-specific orders are governed by the subsequent proceedings for issuance of a U.S. ABWR design, in order to request or requirements in 10 CFR 52.127(a)(3). combined license, amendment of a combined participate in the hearing required by 10 CFR 4. Exemptions from Tier 1 information are license, or renewal of a combined license, 52.217 or the hearing provided under 10 CFR governed by the requirements in 10 CFR proceedings held pursuant to 10 CFR 52.231, 52.231, or to request or participate in any 52.127(b)(1) and 52.227(b). The Commission and enforcement proceedings involving other hearing relating to this appendix in will deny a request for an exemption from plants referencing this appendix: which interested persons have adjudicatory Tier 1, if it finds that the design change will 1. All nuclear safety issues, except for the hearing rights, shall first request access to result in a significant decrease in the level of generic technical specifications and other such information from GE Nuclear Energy. safety otherwise provided by the design. operational requirements, associated with the The request must state with particularity: information in the FSER and Supplement No. a. The nature of the proprietary or other B. Tier 2 Information 1, Tier 1, Tier 2 (including referenced information sought; 1. Generic changes to Tier 2 information information which the context indicates is b. The reason why the information are governed by the requirements in 10 CFR intended as requirements), and the currently available to the public at the NRC 52.127(a)(1). rulemaking record for certification of the U.S. Web site, http://www.nrc.gov, and/or at the 2. Generic changes to Tier 2 information ABWR design; NRC Public Document Room, is insufficient; are applicable to all applicants or licensees 2. All nuclear safety and safeguards issues c. The relevance of the requested who reference this appendix, except those for associated with the information in information to the hearing issue(s) which the which the change has been rendered proprietary and safeguards documents, person proposes to raise; and technically irrelevant by action taken under referenced and in context, are intended as d. A showing that the requesting person paragraphs B.3, B.4, B.5, or B.6 of this requirements in the generic DCD for the U.S. has the capability to understand and utilize section. ABWR design; the requested information. 3. The Commission may not require new 3. All generic changes to the DCD pursuant 2. If a person claims that the information requirements on Tier 2 information by plant- to and in compliance with the change is necessary to prepare a request for hearing, specific order while this appendix is in effect processes in Sections VIII.A.1 and VIII.B.1 of the request must be filed no later than 15 under §§ 52.119 or 52.125, unless: a. A modification is necessary to secure this appendix; days after publication in the Federal Register 4. All exemptions from the DCD pursuant compliance with the Commission’s of the notice required either by 10 CFR to and in compliance with the change regulations applicable and in effect at the 52.217 or 10 CFR 52.231. If GE Nuclear processes in Sections VIII.A.4 and VIII.B.4 of time this appendix was approved, as set forth Energy declines to provide the information this appendix, but only for that plant; in Section V of this appendix, or to assure sought, GE Nuclear Energy shall send a 5. All departures from the DCD that are adequate protection of the public health and written response within ten (10) days of approved by license amendment, but only for safety or the common defense and security; that plant; receiving the request to the requesting person and 6. Except as provided in Section VIII.B.5.f setting forth with particularity the reasons for b. Special circumstances as defined in 10 of this appendix, all departures from Tier 2 its refusal. The person may then request the CFR 50.12(a) are present. pursuant to and in compliance with the Commission (or presiding officer, if a 4. An applicant or licensee who references change processes in Section VIII.B.5 of this proceeding has been established) to order this appendix may request an exemption appendix that do not require prior NRC disclosure. The person shall include copies from Tier 2 information. The Commission approval, but only for that plant; of the original request (and any subsequent may grant such a request only if it determines 7. All environmental issues concerning clarifying information provided by the that the exemption will comply with the severe accident mitigation design alternatives requesting party to the applicant) and the requirements of 10 CFR 50.12(a). The associated with the information in the NRC’s applicant’s response. The Commission and Commission will deny a request for an final environmental assessment for the U.S. presiding officer shall base their decisions exemption from Tier 2, if it finds that the ABWR design and Revision 1 of the solely on the person’s original request design change will result in a significant Technical Support Document for the U.S. (including any clarifying information decrease in the level of safety otherwise ABWR, dated December 1994, for plants provided by the requesting person to GE provided by the design. The grant of an referencing this appendix whose site Nuclear Energy), and GE Nuclear Energy’s exemption to an applicant must be subject to parameters are within those specified in the response. The Commission and presiding litigation in the same manner as other issues Technical Support Document. officer may order GE Nuclear Energy to material to the license hearing. The grant of C. The Commission does not consider provide access to some or all of the requested an exemption to a licensee must be subject operational requirements for an applicant or information, subject to an appropriate non- to an opportunity for a hearing in the same licensee who references this appendix to be disclosure agreement. manner as license amendments.
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5.a. An applicant or licensee who appendix when departing from Tier 2 d. Departures from Tier 2* information that references this appendix may depart from information, may petition the NRC to admit are made under paragraph B.6 of this section Tier 2 information, without prior NRC into the proceeding such a contention. In do not require an exemption from this approval, unless the proposed departure addition in compliance with the general appendix. requirements of 10 CFR 2.714(b)(2), the involves a change to or departure from Tier C. Operational Requirements 1 information, Tier 2* information, or the petition must demonstrate that the departure technical specifications, or requires a license does not comply with Section VIII.B.5 of this 1. Generic changes to generic technical amendment pursuant to paragraphs B.5.b or appendix. Further, the petition must specifications and other operational B.5.c of this section. When evaluating the demonstrate that the change bears an asserted requirements that were completely reviewed proposed departure, an applicant or licensee noncompliance with an ITAAC acceptance and approved in the design certification shall consider all matters described in the criterion in the case of a 10 CFR 52.231 rulemaking and do not require a change to a plant-specific DCD. preoperational hearing, or that the change design feature in the generic DCD are b. A proposed departure from Tier 2, other bears directly on the amendment request in governed by the requirements in 10 CFR than one affecting resolution of a severe the case of a hearing on a license 50.109. Generic changes that do require a accident issue identified in the plant-specific amendment. Any other party may file a change to a design feature in the generic DCD DCD, requires a license amendment if it response. If, on the basis of the petition and are governed by the requirements in would: any response, the presiding officer paragraphs A or B of this section. (1) Result in more than a minimal increase determines that a sufficient showing has been 2. Generic changes to generic technical in the frequency of occurrence of an accident made, the presiding officer shall certify the specifications and other operational previously evaluated in the plant-specific matter directly to the Commission for requirements are applicable to all applicants DCD; determination of the admissibility of the or licensees who reference this appendix, (2) Result in more than a minimal increase contention. The Commission may admit such except those for which the change has been in the likelihood of occurrence of a a contention if it determines the petition rendered technically irrelevant by action malfunction of a structure, system, or raises a genuine issue of material fact taken under paragraphs C.3 or C.4 of this component (SSC) important to safety regarding compliance with Section VIII.B.5 of section. previously evaluated in the plant-specific this appendix. 3. The Commission may require plant- DCD; 6.a. An applicant who references this specific departures on generic technical (3) Result in more than a minimal increase appendix may not depart from Tier 2* specifications and other operational in the consequences of an accident information, which is designated with requirements that were completely reviewed previously evaluated in the plant-specific italicized text or brackets and an asterisk in and approved, provided a change to a design DCD; the generic DCD, without NRC approval. The feature in the generic DCD is not required departure will not be considered a resolved (4) Result in more than a minimal increase and special circumstances as defined in 10 issue, within the meaning of Section VI of in the consequences of a malfunction of a CFR 2.758(b) are present. The Commission this appendix and 10 CFR 52.127(a)(4). SSC important to safety previously evaluated may modify or supplement generic technical b. A licensee who references this appendix in the plant-specific DCD; specifications and other operational may not depart from the following Tier 2* (5) Create a possibility for an accident of requirements that were not completely matters without prior NRC approval. A a different type than any evaluated request for a departure will be treated as a reviewed and approved or require additional previously in the plant-specific DCD; request for a license amendment under 10 technical specifications and other operational (6) Create a possibility for a malfunction of CFR 50.90. requirements on a plant-specific basis, an SSC important to safety with a different (1) Fuel burnup limit (4.2). provided a change to a design feature in the result than any evaluated previously in the (2) Fuel design evaluation (4.2.3). generic DCD is not required. plant-specific DCD; (3) Fuel licensing acceptance criteria 4. An applicant who references this (7) Result in a design basis limit for a (Appendix 4B). appendix may request an exemption from the fission product barrier as described in the c. A licensee who references this appendix generic technical specifications or other plant-specific DCD being exceeded or altered; may not, before the plant first achieves full operational requirements. The Commission or power following the finding required by 10 may grant such a request only if it determines (8) Result in a departure from a method of CFR 52.231(g), depart from the following Tier that the exemption will comply with the evaluation described in the plant-specific 2* matters except in accordance with requirements of 10 CFR 50.12(a). The grant DCD used in establishing the design bases or paragraph B.6.b of this section. After the of an exemption must be subject to litigation in the safety analyses. plant first achieves full power, the following in the same manner as other issues material c. A proposed departure from Tier 2 Tier 2* matters revert to Tier 2 status and are to the license hearing. affecting resolution of a severe accident issue thereafter subject to the departure provisions 5. A party to an adjudicatory proceeding identified in the plant-specific DCD, requires in paragraph B.5 of this section. for either the issuance, amendment, or a license amendment if: (1) ASME Boiler & Pressure Vessel Code, renewal of a license or for operation under (1) There is a substantial increase in the Section III. 10 CFR 52.231(a), who believes that an probability of a severe accident such that a (2) ACI 349 and ANSI/AISC N–690. operational requirement approved in the particular severe accident previously (3) Motor-operated valves. DCD or a technical specification derived from reviewed and determined to be not credible (4) Equipment seismic qualification the generic technical specifications must be could become credible; or methods. changed may petition to admit into the (2) There is a substantial increase in the (5) Piping design acceptance criteria. proceeding such a contention. The petition consequences to the public of a particular (6) Fuel system and assembly design (4.2), must comply with the general requirements severe accident previously reviewed. except burnup limit. of 10 CFR 2.714(b)(2) and must demonstrate d. If a departure requires a license (7) Nuclear design (4.3). why special circumstances as defined in 10 amendment pursuant to paragraphs B.5.b or (8) Equilibrium cycle and control rod CFR 2.758(b) are present, or for compliance B.5.c of this section, it is governed by 10 CFR patterns (App. 4A). with the Commission’s regulations in effect 50.90. (9) Control rod licensing acceptance at the time this appendix was approved, as e. A departure from Tier 2 information that criteria (App. 4C). set forth in Section V of this appendix. Any is made under paragraph B.5 of this section (10) Instrument setpoint methodology. other party may file a response thereto. If, on does not require an exemption from this (11) EMS performance specifications and the basis of the petition and any response, appendix. architecture. the presiding officer determines that a f. A party to an adjudicatory proceeding for (12) SSLC hardware and software sufficient showing has been made, the either the issuance, amendment, or renewal qualification. presiding officer shall certify the matter of a license or for operation under 10 CFR (13) Self-test system design testing features directly to the Commission for determination 52.231(a), who believes that an applicant or and commitments. of the admissibility of the contention. All licensee who references this appendix has (14) Human factors engineering design and other issues with respect to the plant-specific not complied with Section VIII.B.5 of this implementation process. technical specifications or other operational
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requirements are subject to a hearing as part X. Records and Reporting Appendix B—Design Certification Rule of the license proceeding. A. Records for the System 80+ Design 6. After issuance of a license, the generic technical specifications have no further effect 1. The applicant for this appendix shall I. Introduction on the plant-specific technical specifications maintain a copy of the generic DCD that Appendix B constitutes design certification and changes to the plant-specific technical includes all generic changes to Tier 1 and for the System 80+2 standard plant design, in specifications will be treated as license Tier 2. The applicant shall maintain the accordance with 10 CFR Part 52, Subpart B. amendments under 10 CFR 50.90. proprietary and safeguards information The applicant for certification of the System referenced in the generic DCD for the period 80+ design was Combustion Engineering, Inc. IX. Inspections, Tests, Analyses, and that this appendix may be referenced, as (ABB–CE), which is now Westinghouse Acceptance Criteria (ITAAC) specified in Section VII of this appendix. Electric Company LLC. 2. An applicant or licensee who references A.1 An applicant or licensee who II. Definitions references this appendix shall perform and this appendix shall maintain the plant- demonstrate conformance with the ITAAC specific DCD to accurately reflect both A. Generic design control document before fuel load. With respect to activities generic changes to the generic DCD and (generic DCD) means the document containing the Tier 1 and Tier 2 information subject to an ITAAC, an applicant for a plant-specific departures made pursuant to and generic technical specifications that is license may proceed at its own risk with Section VIII of this appendix throughout the incorporated by reference into this appendix. design and procurement activities, and a period of application and for the term of the license (including any period of renewal). B. Generic technical specifications means licensee may proceed at its own risk with the information, required by 10 CFR 50.36 design, procurement, construction, and 3. An applicant or licensee who references this appendix shall prepare and maintain and 50.36a, for the portion of the plant that preoperational activities, even though the is within the scope of this appendix. NRC may not have found that any particular written evaluations which provide the bases for the determinations required by Section C. Plant-specific DCD means the document, ITAAC has been satisfied. maintained by an applicant or licensee who 2. The licensee who references this VIII of this appendix. These evaluations must be retained throughout the period of references this appendix, consisting of the appendix shall notify the NRC that the application and for the term of the license information in the generic DCD, as modified required inspections, tests, and analyses in and supplemented by the plant-specific (including any period of renewal). the ITAAC have been successfully completed departures and exemptions made under and that the corresponding acceptance B. Reporting Section VIII of this appendix. criteria have been met. 1. An applicant or licensee who references D. Tier 1 means the portion of the design- 3. In the event that an activity is subject this appendix shall submit a report to the related information contained in the generic to an ITAAC, and the applicant or licensee NRC containing a brief description of any DCD that is approved and certified by this who references this appendix has not departures from the plant-specific DCD, appendix (hereinafter Tier 1 information). demonstrated that the ITAAC has been including a summary of the evaluation of The design descriptions, interface satisfied, the applicant or licensee may either each. This report must be filed in accordance requirements, and site parameters are derived take corrective actions to successfully with the filing requirements applicable to from Tier 2 information. Tier 1 information complete that ITAAC, request an exemption reports in 10 CFR 50.4. includes: from the ITAAC in accordance with Section 2. An applicant or licensee who references 1. Definitions and general provisions; VIII of this appendix and 10 CFR 52.227(b), this appendix shall submit updates to its 2. Design descriptions; or petition for rulemaking to amend this plant-specific DCD, which reflect the generic 3. Inspections, tests, analyses, and acceptance criteria (ITAAC); appendix by changing the requirements of changes to the generic DCD and the plant- 4. Significant site parameters; and the ITAAC, under 10 CFR 2.802 and specific departures made pursuant to Section 5. Significant interface requirements. 52.227(b). Such rulemaking changes to the VIII of this appendix. These updates must be E. Tier 2 means the portion of the design- ITAAC must meet the requirements of filed in accordance with the filing related information contained in the generic paragraph VIII.A.1 of this appendix. requirements applicable to final safety DCD that is approved but not certified by this B.1 The NRC shall ensure that the required analysis report updates in 10 CFR 50.4 and appendix (hereinafter Tier 2 information). inspections, tests, and analyses in the ITAAC 50.71(e). Compliance with Tier 2 is required, but are performed. The NRC shall verify that the 3. The reports and updates required by generic changes to and plant-specific inspections, tests, and analyses referenced by paragraphs B.1 and B.2 of this section must departures from Tier 2 are governed by the licensee have been successfully be submitted as follows: Section VIII of this appendix. Compliance completed and, based solely thereon, find the a. On the date that an application for a with Tier 2 provides a sufficient, but not the prescribed acceptance criteria have been met. license referencing this appendix is only acceptable, method for complying with At appropriate intervals during construction, submitted, the application must include the Tier 1. Compliance methods differing from the NRC shall publish notices of the report and any updates to the plant-specific Tier 2 must satisfy the change process in successful completion of ITAAC in the DCD. Section VIII of this appendix. Regardless of Federal Register. b. During the interval from the date of these differences, an applicant or licensee 2. In accordance with 10 CFR 52.231(g), the application to the date of issuance of a must meet the requirement in Section III.B of Commission shall find that the acceptance license, the report and any updates to the this appendix to reference Tier 2 when criteria in the ITAAC for the license are met plant-specific DCD must be submitted referencing Tier 1. Tier 2 information before fuel load. annually and may be submitted along with includes: 3. After the Commission has made the amendments to the application. 1. Information required by 10 CFR 52.107, finding required by 10 CFR 52.231(g), the c. During the interval from the date of with the exception of generic technical ITAAC do not, by virtue of their inclusion issuance of a license to the date the specifications and conceptual design within the DCD, constitute regulatory Commission makes its findings under 10 CFR information; requirements either for licensees or for 52.231(g), the report must be submitted 2. Information required for a final safety renewal of the license; except for specific quarterly. Updates to the plant-specific DCD analysis report under 10 CFR 50.34; ITAAC, which are the subject of a § 52.231(a) must be submitted annually. 3. Supporting information on the hearing, their expiration will occur upon d. After the Commission has made its inspections, tests, and analyses that will be final Commission action in such proceeding. finding under 10 CFR 52.231(g), reports and performed to demonstrate that the acceptance However, subsequent modifications must updates to the plant-specific DCD may be criteria in the ITAAC have been met; and comply with the Tier 1 and Tier 2 design submitted annually or along with updates to 4. Combined license (COL) action items descriptions in the plant-specific DCD unless the site-specific portion of the final safety (COL license information), which identify the licensee has complied with the analysis report for the facility at the intervals applicable requirements of 10 CFR 52.227 required by 10 CFR 50.71(e), or at shorter 2 ‘‘System 80+’’ is a trademark of Westinghouse and Section VIII of this appendix. intervals as specified in the license. Electric Company LLC.
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certain matters that shall be addressed in the Report related to the Certification of the design features of the System 80+ design site-specific portion of the final safety System 80+ Design,’’ (FSER) and Supplement comply with the provisions of the Atomic analysis report (FSAR) by an applicant who No. 1, then the generic DCD controls. Energy Act of 1954, as amended, and the references this appendix. These items E. Design activities for structures, systems, applicable regulations identified in Section V constitute information requirements but are and components that are wholly outside the of this appendix; and therefore, provide not the only acceptable set of information in scope of this appendix may be performed adequate protection to the health and safety the FSAR. An applicant may depart from or using site-specific design parameters, of the public. A conclusion that a matter is omit these items, provided that the departure provided the design activities do not affect resolved includes the finding that additional or omission is identified and justified in the the DCD or conflict with the interface or alternative structures, systems, FSAR. After issuance of a construction requirements. components, design features, design criteria, permit or COL, these items are not testing, analyses, acceptance criteria, or IV. Additional Requirements and Restrictions requirements for the licensee unless such justifications are not necessary for the System items are restated in the FSAR. A. An applicant for a license that wishes 80+ design. F. Tier 2* means the portion of the Tier 2 to reference this appendix shall, in addition B. The Commission considers the information, designated as such in the to complying with the requirements of 10 following matters resolved within the generic DCD, which is subject to the change CFR 52.207, 52.209, and 52.211, comply with meaning of 10 CFR 52.127(a)(4) in process in Section VIII.B.6 of this appendix. the following requirements: subsequent proceedings for issuance of a This designation expires for some Tier 2* 1. Incorporate by reference, as part of its combined license, amendment of a combined information under Section VIII.B.6 of this application, this appendix; license, or renewal of a combined license, appendix. 2. Include, as part of its application: proceedings held pursuant to 10 CFR 52.231, G. Departure from a method of evaluation a. A plant-specific DCD containing the and enforcement proceedings involving described in the plant-specific DCD used in same information and utilizing the same plants referencing this appendix: establishing the design bases or in the safety organization and numbering as the generic 1. All nuclear safety issues, except for the analyses means: DCD for the System 80+ design, as modified generic technical specifications and other (1) Changing any of the elements of the and supplemented by the applicant’s operational requirements, associated with the information in the FSER and Supplement No. method described in the plant-specific DCD exemptions and departures; 1, Tier 1, Tier 2 (including referenced unless the results of the analysis are b. The reports on departures from and information which the context indicates is conservative or essentially the same; or updates to the plant-specific DCD required by intended as requirements), and the (2) Changing from a method described in Section X.B of this appendix; rulemaking record for certification of the the plant-specific DCD to another method c. Plant-specific technical specifications, consisting of the generic and site-specific System 80+ design; unless that method has been approved by 2. All nuclear safety and safeguards issues NRC for the intended application. technical specifications, that are required by 10 CFR 50.36 and 50.36a; associated with the information in H. All other terms in this appendix have proprietary and safeguards documents, the meaning set out in 10 CFR 50.2, 10 CFR d. Information demonstrating compliance with the site parameters and interface referenced and in context, are intended as 52.3, or Section 11 of the Atomic Energy Act requirements; requirements in the generic DCD for the of 1954, as amended, as applicable. e. Information that addresses the COL System 80+ design; III. Scope and Contents action items; and 3. All generic changes to the DCD pursuant f. Information required by 10 CFR 52.107(a) to and in compliance with the change A. Tier 1, Tier 2, and the generic technical processes in Sections VIII.A.1 and VIII.B.1 of specifications in the System 80+ Design that is not within the scope of this appendix. 3. Physically include, in the plant-specific this appendix; Control Document, ABB–CE, with revisions 4. All exemptions from the DCD pursuant dated January 1997, are approved for DCD, the proprietary information referenced in the System 80+ DCD. to and in compliance with the change incorporation by reference by the Director of processes in Sections VIII.A.4 and VIII.B.4 of the Office of the Federal Register in B. The Commission reserves the right to determine in what manner this appendix this appendix, but only for that plant; accordance with 5 U.S.C. 552(a) and 1 CFR may be referenced by an applicant for a 5. All departures from the DCD that are part 51. Copies of the generic DCD may be construction permit or operating license approved by license amendment, but only for obtained from the National Technical under 10 CFR part 50. that plant; Information Service, 5285 Port Royal Road, 6. Except as provided in Section VIII.B.5.f Springfield, VA 22161. A copy is available V. Applicable Regulations of this appendix, all departures from Tier 2 for examination and copying at the NRC A. Except as indicated in paragraph B of pursuant to and in compliance with the Public Document Room located at One White this section, the regulations that apply to the change processes in Section VIII.B.5 of this Flint North 11555 Rockville Pike (first floor) System 80+ design are in 10 CFR parts 20, appendix that do not require prior NRC Rockville, Maryland 20852. Copies are also 50, 73, and 100, codified as of May 9, 1997, approval, but only for that plant; available for examination at the NRC Library that are applicable and technically relevant, 7. All environmental issues concerning located at Two White Flint North, 11545 as described in the FSER (NUREG–1462) and severe accident mitigation design alternatives Rockville Pike, Rockville, Maryland 20582 Supplement No. 1. associated with the information in the NRC’s and the Office of the Federal Register, 800 B. The System 80+ design is exempt from final environmental assessment for the North Capitol Street, NW., Suite 700, portions of the following regulations: System 80+ design and the Technical Washington, DC. 1. Paragraph (f)(2)(iv) of 10 CFR 50.34— Support Document for the System 80+ B. An applicant or licensee referencing this Separate Plant Safety Parameter Display design, dated January 1995, for plants appendix, in accordance with Section IV of Console; referencing this appendix whose site this appendix, shall incorporate by reference 2. Paragraphs (f)(2) (vii), (viii), (xxvi), and parameters are within those specified in the and comply with the requirements of this (xxviii) of 10 CFR 50.34—Accident Source Technical Support Document. appendix, including Tier 1, Tier 2, and the Terms; C. The Commission does not consider generic technical specifications except as 3. Paragraph (f)(2)(viii) of 10 CFR 50.34— operational requirements for an applicant or otherwise provided in this appendix. Post-Accident Sampling for Hydrogen, licensee who references this appendix to be Conceptual design information, as set forth in Boron, Chloride, and Dissolved Gases; matters resolved within the meaning of 10 the generic DCD, and the Technical Support 4. Paragraph (f)(3)(iv) of 10 CFR 50.34— CFR 52.127(a)(4). The Commission reserves Document for the System 80+ design are not Dedicated Containment Penetration; and the right to require operational requirements part of this appendix. 5. Paragraphs III.A.1(a) and III.C.3(b) of for an applicant or licensee who references C. If there is a conflict between Tier 1 and Appendix J to 10 CFR part 50—Containment this appendix by rule, regulation, order, or Tier 2 of the DCD, then Tier 1 controls. Leakage Testing. license condition. D. If there is a conflict between the generic D. Except in accordance with the change DCD and either the application for design VI. Issue Resolution processes in Section VIII of this appendix, certification of the System 80+ design or A. The Commission has determined that the Commission may not require an applicant NUREG–1462, ‘‘Final Safety Evaluation the structures, systems, components, and or licensee who references this appendix to:
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1. Modify structures, systems, components, VIII. Processes for Changes and Departures shall consider all matters described in the or design features as described in the generic A. Tier 1 Information plant-specific DCD. DCD; b. A proposed departure from Tier 2, other 1. Generic changes to Tier 1 information 2. Provide additional or alternative than one affecting resolution of a severe are governed by the requirements in 10 CFR structures, systems, components, or design accident issue identified in the plant-specific 52.127(a)(1). features not discussed in the generic DCD; or DCD, requires a license amendment if it 2. Generic changes to Tier 1 information would— 3. Provide additional or alternative design are applicable to all applicants or licensees criteria, testing, analyses, acceptance criteria, (1) Result in more than a minimal increase who reference this appendix, except those for in the frequency of occurrence of an accident or justification for structures, systems, which the change has been rendered components, or design features discussed in previously evaluated in the plant-specific technically irrelevant by action taken under DCD; the generic DCD. paragraphs A.3 or A.4 of this section. (2) Result in more than a minimal increase E.1. Persons who wish to review 3. Departures from Tier 1 information that in the likelihood of occurrence of a proprietary information or other secondary are required by the Commission through malfunction of a structure, system, or references in the DCD for the System 80+ plant-specific orders are governed by the component (SSC) important to safety design, in order to request or participate in requirements in 10 CFR 52.127(a)(3). previously evaluated in the plant-specific the hearing required by 10 CFR 52.217 or the 4. Exemptions from Tier 1 information are DCD; hearing provided under 10 CFR 52.231, or to governed by the requirements in 10 CFR (3) Result in more than a minimal increase request or participate in any other hearing 52.127(b)(1) and § 52.227(b). The in the consequences of an accident relating to this appendix in which interested Commission will deny a request for an previously evaluated in the plant-specific persons have adjudicatory hearing rights, exemption from Tier 1, if it finds that the DCD; shall first request access to such information design change will result in a significant (4) Result in more than a minimal increase from Westinghouse. The request must state decrease in the level of safety otherwise in the consequences of a malfunction of a with particularity: provided by the design. SSC important to safety previously evaluated a. The nature of the proprietary or other B. Tier 2 Information in the plant-specific DCD; information sought; 1. Generic changes to Tier 2 information (5) Create a possibility for an accident of b. The reason why the information are governed by the requirements in 10 CFR a different type than any evaluated currently available to the public at the NRC 52.127(a)(1). previously in the plant-specific DCD; Web site, http://www.nrc.gov, and/or at the 2. Generic changes to Tier 2 information (6) Create a possibility for a malfunction of NRC Public Document Room, is insufficient; are applicable to all applicants or licensees an SSC important to safety with a different c. The relevance of the requested who reference this appendix, except those for result than any evaluated previously in the information to the hearing issue(s) which the which the change has been rendered plant-specific DCD; person proposes to raise; and technically irrelevant by action taken under (7) Result in a design basis limit for a d. A showing that the requesting person paragraphs B.3, B.4, B.5, or B.6 of this fission product barrier as described in the has the capability to understand and utilize section. plant-specific DCD being exceeded or altered; the requested information. 3. The Commission may not require new or 2. If a person claims that the information requirements on Tier 2 information by plant- (8) Result in a departure from a method of is necessary to prepare a request for hearing, specific order while this appendix is in effect evaluation described in the plant-specific the request must be filed no later than 15 under §§ 52.119 or 52.125, unless: DCD used in establishing the design bases or days after publication in the Federal Register a. A modification is necessary to secure in the safety analyses. of the notice required either by 10 CFR compliance with the Commission’s c. A proposed departure from Tier 2 52.217 or 10 CFR 52.231. If Westinghouse regulations applicable and in effect at the affecting resolution of a severe accident issue declines to provide the information sought, time this appendix was approved, as set forth identified in the plant-specific DCD, requires a license amendment if— Westinghouse shall send a written response in Section V of this appendix, or to assure (1) There is a substantial increase in the within ten (10) days of receiving the request adequate protection of the public health and probability of a severe accident such that a to the requesting person setting forth with safety or the common defense and security; and particular severe accident previously particularity the reasons for its refusal. The b. Special circumstances as defined in 10 reviewed and determined to be not credible person may then request the Commission (or CFR 50.12(a) are present. could become credible; or presiding officer, if a proceeding has been 4. An applicant or licensee who references (2) There is a substantial increase in the established) to order disclosure. The person this appendix may request an exemption consequences to the public of a particular shall include copies of the original request from Tier 2 information. The Commission severe accident previously reviewed. (and any subsequent clarifying information may grant such a request only if it determines d. If a departure requires a license provided by the requesting party to the that the exemption will comply with the amendment pursuant to paragraphs B.5.b or applicant) and the applicant’s response. The requirements of 10 CFR 50.12(a). The B.5.c of this section, it is governed by 10 CFR Commission and presiding officer shall base Commission will deny a request for an 50.90. their decisions solely on the person’s original exemption from Tier 2 if it finds that the e. A departure from Tier 2 information that request (including any clarifying information design change will result in a significant is made under paragraph B.5 of this section provided by the requesting person to decrease in the level of safety otherwise does not require an exemption from this Westinghouse), and Westinghouse’s provided by the design. The grant of an appendix. response. The Commission and presiding exemption to an applicant must be subject to f. A party to an adjudicatory proceeding for officer may order Westinghouse to provide litigation in the same manner as other issues either the issuance, amendment, or renewal access to some or all of the requested material to the license hearing. The grant of of a license or for operation under 10 CFR information, subject to an appropriate non- an exemption to a licensee must be subject 52.231(a), who believes that an applicant or disclosure agreement. to an opportunity for a hearing in the same licensee who references this appendix has manner as license amendments. not complied with Section VIII.B.5 of this VII. Duration of This Appendix 5.a. An applicant or licensee who appendix when departing from Tier 2 This appendix may be referenced for a references this appendix may depart from information, may petition to admit into the period of 15 years from June 20, 1997 except Tier 2 information, without prior NRC proceeding such a contention. In addition to as provided for in 10 CFR 52.119(b) and approval, unless the proposed departure compliance with the general requirements of 52.121(b). This appendix remains valid for an involves a change to or departure from Tier 10 CFR 2.714(b)(2), the petition must applicant or licensee who references this 1 information, Tier 2* information, or the demonstrate that the departure does not appendix until the application is withdrawn technical specifications, or requires a license comply with Section VIII.B.5 of this or the license expires, including any period amendment pursuant to paragraphs B.5.b or appendix. Further, the petition must of extended operation under a renewed B.5.c of this section. When evaluating the demonstrate that the change bears on an license. proposed departure, an applicant or licensee asserted noncompliance with an ITAAC
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acceptance criterion in the case of a 10 CFR 2. Generic changes to generic technical design and procurement activities, and a 52.231 preoperational hearing, or that the specifications and other operational licensee may proceed at its own risk with change bears directly on the amendment requirements are applicable to all applicants design, procurement, construction, and request in the case of a hearing on a license or licensees who reference this appendix, preoperational activities, even though the amendment. Any other party may file a except those for which the change has been NRC may not have found that any particular response. If, on the basis of the petition and rendered technically irrelevant by action ITAAC has been satisfied. any response, the presiding officer taken under paragraphs C.3 or C.4 of this 2. The licensee who references this determines that a sufficient showing has been section. appendix shall notify the NRC that the made, the presiding officer shall certify the 3. The Commission may require plant- required inspections, tests, and analyses in matter directly to the Commission for specific departures on generic technical the ITAAC have been successfully completed determination of the admissibility of the specifications and other operational and that the corresponding acceptance contention. The Commission may admit such requirements that were completely reviewed criteria have been met. a contention if it determines the petition and approved, provided a change to a design 3. In the event that an activity is subject raises a genuine issue of material fact feature in the generic DCD is not required to an ITAAC, and the applicant or licensee regarding compliance with Section VIII.B.5 of and special circumstances as defined in 10 who references this appendix has not this appendix. CFR 2.758(b) are present. The Commission demonstrated that the ITAAC has been 6.a. An applicant who references this may modify or supplement generic technical satisfied, the applicant or licensee may either appendix may not depart from Tier 2* specifications and other operational take corrective actions to successfully information, which is designated with requirements that were not completely complete that ITAAC, request an exemption italicized text or brackets and an asterisk in reviewed and approved or require additional from the ITAAC in accordance with Section the generic DCD, without NRC approval. The technical specifications and other operational VIII of this appendix and 10 CFR 52.227(b), departure will not be considered a resolved requirements on a plant-specific basis, or petition for rulemaking to amend this issue, within the meaning of Section VI of provided a change to a design feature in the appendix by changing the requirements of this appendix and 10 CFR 52.127(a)(4). generic DCD is not required. the ITAAC, under 10 CFR 2.802 and b. A licensee who references this appendix 4. An applicant who references this 52.227(b). Such rulemaking changes to the may not depart from the following Tier 2* appendix may request an exemption from the ITAAC must meet the requirements of matters without prior NRC approval. A generic technical specifications or other Section VIII.A.1 of this appendix. request for a departure will be treated as a operational requirements. The Commission B.1 The NRC shall ensure that the required request for a license amendment under 10 may grant such a request only if it determines inspections, tests, and analyses in the ITAAC CFR 50.90. that the exemption will comply with the are performed. The NRC shall verify that the (1) Maximum fuel rod average burnup. requirements of 10 CFR 50.12(a). The grant inspections, tests, and analyses referenced by (2) Control room human factors of an exemption must be subject to litigation the licensee have been successfully engineering. in the same manner as other issues material completed and, based solely thereon, find the c. A licensee who references this appendix to the license hearing. prescribed acceptance criteria have been met. may not, before the plant first achieves full 5. A party to an adjudicatory proceeding At appropriate intervals during construction, power following the finding required by 10 for either the issuance, amendment, or the NRC shall publish notices of the CFR 52.231(g), depart from the following Tier renewal of a license or for operation under successful completion of ITAAC in the 2* matters except in accordance with 10 CFR 52.231(a), who believes that an Federal Register. paragraph B.6.b of this section. After the operational requirement approved in the 2. In accordance with 10 CFR 52.231(g), the plant first achieves full power, the following DCD or a technical specification derived from Commission shall find that the acceptance Tier 2* matters revert to Tier 2 status and are the generic technical specifications must be criteria in the ITAAC for the license are met thereafter subject to the departure provisions changed may petition to admit into the before fuel load. in paragraph B.5 of this section. proceeding such a contention. Such petition 3. After the Commission has made the (1) ASME Boiler & Pressure Vessel Code, must comply with the general requirements finding required by 10 CFR 52.231(g), the Section III. of 10 CFR 2.714(b)(2) and must demonstrate ITAAC do not, by virtue of their inclusion (2) ACI 349 and ANSI/AISC N–690. why special circumstances as defined in 10 within the DCD, constitute regulatory (3) Motor-operated valves. CFR 2.758(b) are present, or for compliance requirements either for licensees or for (4) Equipment seismic qualification with the Commission’s regulations in effect renewal of the license; except for specific methods. at the time this appendix was approved, as ITAAC, which are the subject of a § 52.231(a) (5) Piping design acceptance criteria. set forth in Section V of this appendix. Any hearing, their expiration will occur upon (6) Fuel and control rod design, except other party may file a response thereto. If, on final Commission action in such proceeding. burnup limit. the basis of the petition and any response, However, subsequent modifications must (7) Instrumentation & controls setpoint the presiding officer determines that a comply with the Tier 1 and Tier 2 design methodology. sufficient showing has been made, the descriptions in the plant-specific DCD unless (8) Instrumentation & controls hardware presiding officer shall certify the matter the licensee has complied with the and software changes. directly to the Commission for determination applicable requirements of 10 CFR 52.227 (9) Instrumentation & controls and Section VIII of this appendix. environmental qualification. of the admissibility of the contention. All (10) Seismic design criteria for non-seismic other issues with respect to the plant-specific X. Records and Reporting technical specifications or other operational category I structures. A. Records d. Departures from Tier 2* information that requirements are subject to a hearing as part 1. The applicant for this appendix shall are made under paragraph B.6 of this section of the license proceeding. maintain a copy of the generic DCD that do not require an exemption from this 6. After issuance of a license, the generic includes all generic changes to Tier 1 and appendix. technical specifications have no further effect on the plant-specific technical specifications Tier 2. The applicant shall maintain the C. Operational Requirements and changes to the plant-specific technical proprietary and safeguards information 1. Generic changes to generic technical specifications will be treated as license referenced in the generic DCD for the period specifications and other operational amendments under 10 CFR 50.90. that this appendix may be referenced, as requirements that were completely reviewed specified in Section VII of this appendix. and approved in the design certification IX. Inspections, Tests, Analyses, and 2. An applicant or licensee who references rulemaking and do not require a change to a Acceptance Criteria (ITAAC) this appendix shall maintain the plant- design feature in the generic DCD are A.1 An applicant or licensee who specific DCD to accurately reflect both governed by the requirements in 10 CFR references this appendix shall perform and generic changes to the generic DCD and 50.109. Generic changes that do require a demonstrate conformance with the ITAAC plant-specific departures made pursuant to change to a design feature in the generic DCD before fuel load. With respect to activities Section VIII of this appendix throughout the are governed by the requirements in subject to an ITAAC, an applicant for a period of application and for the term of the paragraphs A or B of this section. license may proceed at its own risk with license (including any period of renewal).
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3. An applicant or licensee who references B. Generic technical specifications means This designation expires for some Tier 2* this appendix shall prepare and maintain the information, required by 10 CFR 50.36 information under Section VIII.B.6. written evaluations which provide the bases and 50.36a, for the portion of the plant that G. Departure from a method of evaluation for the determinations required by Section is within the scope of this appendix. described in the plant-specific DCD used in VIII of this appendix. These evaluations must C. Plant-specific DCD means the document, establishing the design bases or in the safety be retained throughout the period of maintained by an applicant or licensee who analyses means: application and for the term of the license references this appendix, consisting of the (1) Changing any of the elements of the (including any period of renewal). information in the generic DCD, as modified method described in the plant-specific DCD B. Reporting and supplemented by the plant-specific unless the results of the analysis are departures and exemptions made under conservative or essentially the same; or 1. An applicant or licensee who references Section VIII of this appendix. (2) Changing from a method described in this appendix shall submit a report to the D. Tier 1 means the portion of the design- the plant-specific DCD to another method NRC containing a brief description of any related information contained in the generic unless that method has been approved by departures from the plant-specific DCD, DCD that is approved and certified by this NRC for the intended application. including a summary of the evaluation of appendix (hereinafter Tier 1 information). H. All other terms in this appendix have each. This report must be filed in accordance The design descriptions, interface the meaning set out in 10 CFR 50.2, 10 CFR with the filing requirements applicable to requirements, and site parameters are derived 52.3, or section 11 of the Atomic Energy Act reports in 10 CFR 50.4. from Tier 2 information. Tier 1 information of 1954, as amended, as applicable. 2. An applicant or licensee who references includes: this appendix shall submit updates to its III. Scope and Contents 1. Definitions and general provisions; plant-specific DCD, which reflect the generic 2. Design descriptions; A. Tier 1, Tier 2 (including the investment changes to the generic DCD and the plant- protection short-term availability controls in specific departures made pursuant to Section 3. Inspections, tests, analyses, and acceptance criteria (ITAAC); section 16.3), and the generic technical VIII of this appendix. These updates must be specifications in the AP600 DCD (12/99 filed in accordance with the filing 4. Significant site parameters; and 5. Significant interface requirements. revision) are approved for incorporation by requirements applicable to final safety reference by the Director of the Office of the analysis report updates in 10 CFR 50.4 and E. Tier 2 means the portion of the design- related information contained in the generic Federal Register on January 24, 2000, in 50.71(e). accordance with 5 U.S.C. 552(a) and 1 CFR 3. The reports and updates required by DCD that is approved but not certified by this appendix (hereinafter Tier 2 information). part 51. Copies of the generic DCD may be paragraphs B.1 and B.2 of this section must obtained from Mr. Michael Corletti, be submitted as follows: Compliance with Tier 2 is required, but generic changes to and plant-specific Westinghouse Electric Company, P.O. Box a. On the date that an application for a 355, Pittsburgh, PA 15230–0355. A copy of license referencing this appendix is departures from Tier 2 are governed by Section VIII of this appendix. Compliance the generic DCD is available for examination submitted, the application must include the and copying at the NRC Public Document report and any updates to the plant-specific with Tier 2 provides a sufficient, but not the only acceptable, method for complying with Room located at One White Flint North, DCD. 11555 Rockville Pike (first floor), Rockville, Tier 1. Compliance methods differing from b. During the interval from the date of Maryland 20852. Copies are also available for Tier 2 must satisfy the change process in application to the date of issuance of a examination at the NRC Library located at license, the report and any updates to the Section VIII of this appendix. Regardless of Two White Flint North, 11545 Rockville plant-specific DCD must be submitted these differences, an applicant or licensee Pike, Rockville, Maryland 20582; and the annually and may be submitted along with must meet the requirement in Section III.B of Office of the Federal Register, 800 North amendments to the application. this appendix to reference Tier 2 when Capitol Street, NW., Suite 700, Washington, c. During the interval from the date of referencing Tier 1. Tier 2 information DC. issuance of a license to the date the includes: B. An applicant or licensee referencing this Commission makes its findings under 10 CFR 1. Information required by 10 CFR 52.107, appendix, in accordance with section IV of 52.231(g), the report must be submitted with the exception of generic technical this appendix, shall incorporate by reference quarterly. Updates to the plant-specific DCD specifications and conceptual design must be submitted annually. and comply with the requirements of this information; appendix, including Tier 1, Tier 2 (including d. After the Commission has made its 2. Information required for a final safety finding under 10 CFR 52.231(g), reports and the investment protection short-term analysis report under 10 CFR 50.34; availability controls in section 16.3), and the updates to the plant-specific DCD may be 3. Supporting information on the submitted annually or along with updates to generic technical specifications except as inspections, tests, and analyses that will be otherwise provided in this appendix. the site-specific portion of the final safety performed to demonstrate that the acceptance analysis report for the facility at the intervals Conceptual design information in the generic criteria in the ITAAC have been met; and DCD and the evaluation of severe accident required by 10 CFR 50.71(e), or at shorter 4. Combined license (COL) action items intervals as specified in the license. mitigation design alternatives in Appendix (combined license information), which 1B of the generic DCD are not part of this identify certain matters that must be Appendix C—Design Certification Rule appendix. addressed in the site-specific portion of the C. If there is a conflict between Tier 1 and for the AP600 Design final safety analysis report (FSAR) by an Tier 2 of the DCD, then Tier 1 controls. applicant who references this appendix. D. If there is a conflict between the generic I. Introduction These items constitute information DCD and either the application for design Appendix C constitutes the standard requirements but are not the only acceptable certification of the AP600 design or NUREG– design certification for the AP6003 design, in set of information in the FSAR. An applicant 1512, ‘‘Final Safety Evaluation Report accordance with 10 CFR Part 52, Subpart B. may depart from or omit these items, Related to Certification of the AP600 The applicant for certification of the AP600 provided that the departure or omission is Standard Design,’’ (FSER), then the generic design is Westinghouse Electric Company identified and justified in the FSAR. After DCD controls. LLC. issuance of a construction permit or COL, E. Design activities for structures, systems, these items are not requirements for the and components that are wholly outside the II. Definitions licensee unless such items are restated in the scope of this appendix may be performed A. Generic design control document FSAR. using site-specific design parameters, (generic DCD) means the document 5. The investment protection short-term provided the design activities do not affect containing the Tier 1 and Tier 2 information availability controls in Section 16.3 of the the DCD or conflict with the interface and generic technical specifications that is DCD. requirements. incorporated by reference into this appendix. F. Tier 2* means the portion of the Tier 2 information, designated as such in the IV. Additional Requirements and Restrictions 3 AP600 is a trademark of Westinghouse Electric generic DCD, which is subject to the change A. An applicant for a license that wishes Company LLC. process in Section VIII.B.6 of this appendix. to reference this appendix shall, in addition
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to complying with the requirements of 10 analyses, acceptance criteria, or justifications E.1. Persons who wish to review CFR 52.207, 52.209, and 52.211, comply with are not necessary for the AP600 design. proprietary and safeguards information or the following requirements: B. The Commission considers the other secondary references in the AP600 1. Incorporate by reference, as part of its following matters resolved within the DCD, in order to request or participate in the application, this appendix; meaning of 10 CFR 52.127(a)(4) in hearing required by 10 CFR 52.217 or the 2. Include, as part of its application: subsequent proceedings for issuance of a hearing provided under 10 CFR 52.231, or to a. A plant-specific DCD containing the combined license, amendment of a combined request or participate in any other hearing same information and utilizing the same license, or renewal of a combined license, relating to this appendix in which interested organization and numbering as the generic proceedings held pursuant to 10 CFR 52.231, persons have adjudicatory hearing rights, DCD for the AP600 design, as modified and and enforcement proceedings involving shall first request access to such information supplemented by the applicant’s exemptions plants referencing this appendix: from Westinghouse. The request must state and departures; 1. All nuclear safety issues, except for the with particularity: b. The reports on departures from and generic technical specifications and other a. The nature of the proprietary or other updates to the plant-specific DCD required by operational requirements, associated with the information sought; Section X.B of this appendix; information in the FSER and Supplement No. b. The reason why the information c. Plant-specific technical specifications, 1, Tier 1, Tier 2 (including referenced currently available to the public at the NRC consisting of the generic and site-specific information which the context indicates is Web site, http://www.nrc.gov, and/or at the technical specifications, that are required by intended as requirements and the investment NRC Public Document Room, is insufficient; 10 CFR 50.36 and 50.36a; protection short-term availability controls in c. The relevance of the requested d. Information demonstrating compliance section 16.3), and the rulemaking record for information to the hearing issue(s) which the person proposes to raise; and with the site parameters and interface certification of the AP600 design; d. A showing that the requesting person requirements; 2. All nuclear safety and safeguards issues has the capability to understand and utilize e. Information that addresses the COL associated with the information in the requested information. action items; and proprietary and safeguards documents, referenced and in context, are intended as 2. If a person claims that the information f. Information required by 10 CFR 52.107(a) is necessary to prepare a request for hearing, that is not within the scope of this appendix. requirements in the generic DCD for the AP600 design; the request must be filed no later than 15 3. Physically include, in the plant-specific days after publication in the Federal Register DCD, the proprietary information and 3. All generic changes to the DCD pursuant to and in compliance with the change of the notice required either by 10 CFR safeguards information referenced in the 52.217 or 10 CFR 52.231. If Westinghouse AP600 DCD. processes in Sections VIII.A.1 and VIII.B.1 of this appendix; declines to provide the information sought, B. The Commission reserves the right to Westinghouse shall send a written response 4. All exemptions from the DCD pursuant determine in what manner this appendix within ten (10) days of receiving the request to and in compliance with the change may be referenced by an applicant for a to the requesting person setting forth with processes in Sections VIII.A.4 and VIII.B.4 of construction permit or operating license particularity the reasons for its refusal. The this appendix, but only for that plant; under 10 CFR part 50. person may then request the Commission (or 5. All departures from the DCD that are V. Applicable Regulations presiding officer, if a proceeding has been approved by license amendment, but only for established) to order disclosure. The person A. Except as indicated in paragraph B of that plant; shall include copies of the original request this section, the regulations that apply to the 6. Except as provided in Section VIII.B.5.f (and any subsequent clarifying information AP600 design are in 10 CFR parts 20, 50, 73, of this appendix, all departures from Tier 2 provided by the requesting party to the and 100, codified as of December 16, 1999, pursuant to and in compliance with the applicant) and the applicant’s response. The that are applicable and technically relevant, change processes in Section VIII.B.5 of this Commission and presiding officer shall base as described in the FSER (NUREG–1512) and appendix that do not require prior NRC their decisions solely on the person’s original the supplementary information for this approval, but only for that plant; request (including any clarifying information section. 7. All environmental issues concerning provided by the requesting person to B. The AP600 design is exempt from severe accident mitigation design alternatives Westinghouse), and Westinghouse’s portions of the following regulations: (SAMDAs) associated with the information in response. The Commission and presiding 1. Paragraph (a)(1) of 10 CFR 50.34—whole the NRC’s environmental assessment for the officer may order Westinghouse to provide body dose criterion; AP600 design and Appendix 1B of the access to some or all of the requested 2. Paragraph (f)(2)(iv) of 10 CFR 50.34— generic DCD, for plants referencing this information, subject to an appropriate non- Plant Safety Parameter Display Console; appendix whose site parameters are within disclosure agreement. 3. Paragraphs (f)(2)(vii), (viii), (xxvi), and those specified in the SAMDA evaluation. (xxviii) of 10 CFR 50.34—Accident Source C. The Commission does not consider VII. Duration of This Appendix Term in TID 14844; operational requirements for an applicant or This appendix may be referenced for a 4. Paragraph (a)(2) of 10 CFR 50.55a— licensee who references this appendix to be period of 15 years from January 24, 2000, ASME Boiler and Pressure Vessel Code; matters resolved within the meaning of 10 except as provided for in 10 CFR 52.119(b) 5. Paragraph (c)(1) of 10 CFR 50.62— CFR 52.127(a)(4). The Commission reserves and 52.121(b). This appendix remains valid Auxiliary (or emergency) feedwater system; the right to require operational requirements for an applicant or licensee who references 6. Appendix A to 10 CFR part 50, GDC for an applicant or licensee who references this appendix until the application is 17—Offsite Power Sources; and this appendix by rule, regulation, order, or withdrawn or the license expires, including 7. Appendix A to 10 CFR part 50, GDC license condition. any period of extended operation under a 19—whole body dose criterion. D. Except in accordance with the change renewed license. processes in Section VIII of this appendix, VIII. Processes for Changes and Departures VI. Issue Resolution the Commission may not require an applicant A. The Commission has determined that or licensee who references this appendix to: A. Tier 1 Information the structures, systems, components, and 1. Modify structures, systems, components, 1. Generic changes to Tier 1 information design features of the AP600 design comply or design features as described in the generic are governed by the requirements in 10 CFR with the provisions of the Atomic Energy Act DCD; 52.127(a)(1). of 1954, as amended, and the applicable 2. Provide additional or alternative 2. Generic changes to Tier 1 information regulations identified in section V of this structures, systems, components, or design are applicable to all applicants or licensees appendix; and therefore, provide adequate features not discussed in the generic DCD; or who reference this appendix, except those for protection to the health and safety of the 3. Provide additional or alternative design which the change has been rendered public. A conclusion that a matter is resolved criteria, testing, analyses, acceptance criteria, technically irrelevant by action taken under includes the finding that additional or or justification for structures, systems, paragraphs A.3 or A.4 of this section. alternative structures, systems, components, components, or design features discussed in 3. Departures from Tier 1 information that design features, design criteria, testing, the generic DCD. are required by the Commission through
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plant-specific orders are governed by the previously evaluated in the plant-specific 6.a. An applicant who references this requirements in 10 CFR 52.127(a)(3). DCD; appendix may not depart from Tier 2* 4. Exemptions from Tier 1 information are (3) Result in more than a minimal increase information, which is designated with governed by the requirements in 10 CFR in the consequences of an accident italicized text or brackets and an asterisk in 52.127(b)(1) and 52.227(b). The Commission previously evaluated in the plant-specific the generic DCD, without NRC approval. The will deny a request for an exemption from DCD; departure will not be considered a resolved Tier 1, if it finds that the design change will (4) Result in more than a minimal increase issue, within the meaning of Section VI of result in a significant decrease in the level of in the consequences of a malfunction of a this appendix and 10 CFR 52.127(a)(4). safety otherwise provided by the design. SSC important to safety previously evaluated b. A licensee who references this appendix B. Tier 2 Information in the plant-specific DCD; may not depart from the following Tier 2* (5) Create a possibility for an accident of matters without prior NRC approval. A 1. Generic changes to Tier 2 information a different type than any evaluated request for a departure will be treated as a are governed by the requirements in 10 CFR previously in the plant-specific DCD; request for a license amendment under 10 52.127(a)(1). (6) Create a possibility for a malfunction of 2. Generic changes to Tier 2 information an SSC important to safety with a different CFR 50.90. are applicable to all applicants or licensees result than any evaluated previously in the (1) Maximum fuel rod average burn-up. who reference this appendix, except those for plant-specific DCD; (2) Fuel principal design requirements. which the change has been rendered (7) Result in a design basis limit for a (3) Fuel criteria evaluation process. technically irrelevant by action taken under fission product barrier as described in the (4) Fire areas. paragraphs B.3, B.4, B.5, or B.6 of this plant-specific DCD being exceeded or altered; (5) Human factors engineering. section. or c. A licensee who references this appendix 3. The Commission may not require new (8) Result in a departure from a method of may not, before the plant first achieves full requirements on Tier 2 information by plant- evaluation described in the plant-specific power following the finding required by 10 specific order while this appendix is in effect DCD used in establishing the design bases or CFR 52.231(g), depart from the following Tier under §§ 52.119 or 52.125, unless: in the safety analyses. 2* matters except in accordance with a. A modification is necessary to secure c. A proposed departure from Tier 2 paragraph B.6.b of this section. After the compliance with the Commission’s affecting resolution of a severe accident issue plant first achieves full power, the following regulations applicable and in effect at the identified in the plant-specific DCD, requires Tier 2* matters revert to Tier 2 status and are time this appendix was approved, as set forth a license amendment if: thereafter subject to the departure provisions in Section V of this appendix, or to assure (1) There is a substantial increase in the in paragraph B.5 of this section. adequate protection of the public health and probability of a severe accident such that a (1) Nuclear Island structural dimensions. safety or the common defense and security; particular severe accident previously (2) ASME Boiler and Pressure Vessel Code, and reviewed and determined to be not credible Section III, and Code Case N–284. b. Special circumstances as defined in 10 could become credible; or (3) Design Summary of Critical Sections. CFR 50.12(a) are present. (2) There is a substantial increase in the (4) ACI 318, ACI 349, and ANSI/AISC–690. 4. An applicant or licensee who references consequences to the public of a particular (5) Definition of critical locations and this appendix may request an exemption severe accident previously reviewed. thicknesses. from Tier 2 information. The Commission d. If a departure requires a license (6) Seismic qualification methods and may grant such a request only if it determines amendment pursuant to paragraphs B.5.b or standards. that the exemption will comply with the B.5.c of this section, it is governed by 10 CFR (7) Nuclear design of fuel and reactivity requirements of 10 CFR 50.12(a). The 50.90. Commission will deny a request for an e. A departure from Tier 2 information that control system, except burn-up limit. exemption from Tier 2, if it finds that the is made under paragraph B.5 of this section (8) Motor-operated and power-operated design change will result in a significant does not require an exemption from this valves. decrease in the level of safety otherwise appendix. (9) Instrumentation and control system provided by the design. The grant of an f. A party to an adjudicatory proceeding for design processes, methods, and standards. exemption to an applicant must be subject to either the issuance, amendment, or renewal (10) PRHR natural circulation test (first litigation in the same manner as other issues of a license or for operation under 10 CFR plant only). material to the license hearing. The grant of 52.231(a), who believes that an applicant or (11) ADS and CMT verification tests (first an exemption to a licensee must be subject licensee who references this appendix has three plants only). to an opportunity for a hearing in the same not complied with Section VIII.B.5 of this d. Departures from Tier 2* information that manner as license amendments. appendix when departing from Tier 2 are made under paragraph B.6 of this section 5.a. An applicant or licensee who information, may petition to admit into the do not require an exemption from this references this appendix may depart from proceeding such a contention. In addition, to appendix. Tier 2 information, without prior NRC comply with the general requirements of 10 C. Operational Requirements approval, unless the proposed departure CFR 2.714(b)(2), the petition must 1. Generic changes to generic technical involves a change to or departure from Tier demonstrate that the departure does not 1 information, Tier 2* information, or the comply with Section VIII.B.5 of this specifications and other operational technical specifications, or requires a license appendix. Further, the petition must requirements that were completely reviewed amendment pursuant to paragraphs B.5.b or demonstrate that the change bears on an and approved in the design certification B.5.c of this section. When evaluating the asserted noncompliance with an ITAAC rulemaking and do not require a change to a proposed departure, an applicant or licensee acceptance criterion in the case of a 10 CFR design feature in the generic DCD are shall consider all matters described in the 52.231 preoperational hearing, or that the governed by the requirements in 10 CFR plant-specific DCD. change bears directly on the amendment 50.109. Generic changes that do require a b. A proposed departure from Tier 2, other request in the case of a hearing on a license change to a design feature in the generic DCD than one affecting resolution of a severe amendment. Any other party may file a are governed by the requirements in accident issue identified in the plant-specific response. If, on the basis of the petition and paragraphs A or B of this section. DCD, requires a license amendment if it any response, the presiding officer 2. Generic changes to generic technical would: determines that a sufficient showing has been specifications and other operational (1) Result in more than a minimal increase made, the presiding officer shall certify the requirements are applicable to all applicants in the frequency of occurrence of an accident matter directly to the Commission for or licensees who reference this appendix, previously evaluated in the plant-specific determination of the admissibility of the except those for which the change has been DCD; contention. The Commission may admit such rendered technically irrelevant by action (2) Result in more than a minimal increase a contention if it determines the petition taken under paragraphs C.3 or C.4 of this in the likelihood of occurrence of a raises a genuine issue of material fact section. malfunction of a structure, system, or regarding compliance with Section VIII.B.5 of 3. The Commission may require plant- component (SSC) important to safety this appendix. specific departures on generic technical
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specifications and other operational and that the corresponding acceptance B. Reporting requirements that were completely reviewed criteria have been met. 1. An applicant or licensee who references and approved, provided a change to a design 3. In the event that an activity is subject this appendix shall submit a report to the feature in the generic DCD is not required to an ITAAC, and the applicant or licensee NRC containing a brief description of any and special circumstances as defined in 10 who references this appendix has not departures from the plant-specific DCD, CFR 2.758(b) are present. The Commission demonstrated that the ITAAC has been including a summary of the evaluation of may modify or supplement generic technical satisfied, the applicant or licensee may either each. This report must be filed in accordance specifications and other operational take corrective actions to successfully with the filing requirements applicable to requirements that were not completely complete that ITAAC, request an exemption reports in 10 CFR 50.4. reviewed and approved or require additional from the ITAAC in accordance with Section 2. An applicant or licensee who references technical specifications and other operational VIII of this appendix and 10 CFR 52.227(b), this appendix shall submit updates to its requirements on a plant-specific basis, or petition for rulemaking to amend this plant-specific DCD, which reflect the generic provided a change to a design feature in the appendix by changing the requirements of changes to the generic DCD and the plant- generic DCD is not required. the ITAAC, under 10 CFR 2.802 and specific departures made pursuant to Section 4. An applicant who references this 52.227(b). Such rulemaking changes to the VIII of this appendix. These updates must be appendix may request an exemption from the ITAAC must meet the requirements of filed in accordance with the filing generic technical specifications or other paragraph VIII.A.1 of this appendix. requirements applicable to final safety operational requirements. The Commission B.1 The NRC shall ensure that the required analysis report updates in 10 CFR 50.4 and may grant such a request only if it determines inspections, tests, and analyses in the ITAAC 50.71(e). that the exemption will comply with the are performed. The NRC shall verify that the 3. The reports and updates required by requirements of 10 CFR 50.12(a). The grant inspections, tests, and analyses referenced by paragraphs B.1 and B.2 of this section must of an exemption must be subject to litigation the licensee have been successfully be submitted as follows: in the same manner as other issues material a. On the date that an application for a to the license hearing. completed and, based solely thereon, find the prescribed acceptance criteria have been met. license referencing this appendix is 5. A party to an adjudicatory proceeding submitted, the application must include the At appropriate intervals during construction, for either the issuance, amendment, or report and any updates to the plant-specific the NRC shall publish notices of the renewal of a license or for operation under DCD. successful completion of ITAAC in the 10 CFR 52.231(a), who believes that an b. During the interval from the date of Federal Register. operational requirement approved in the application to the date of issuance of a 2. In accordance with 10 CFR 52.231(g), the DCD or a technical specification derived from license, the report and any updates to the the generic technical specifications must be Commission shall find that the acceptance plant-specific DCD must be submitted changed may petition to admit into the criteria in the ITAAC for the license are met annually and may be submitted along with proceeding such a contention. Such petition before fuel load. amendments to the application. must comply with the general requirements 3. After the Commission has made the c. During the interval from the date of of 10 CFR 2.714(b)(2) and must demonstrate finding required by 10 CFR 52.231(g), the issuance of a license to the date the why special circumstances as defined in 10 ITAAC do not, by virtue of their inclusion Commission makes its findings under 10 CFR CFR 2.758(b) are present, or for compliance within the DCD, constitute regulatory 52.231(g), the report must be submitted with the Commission’s regulations in effect requirements either for licensees or for quarterly. Updates to the plant-specific DCD at the time this appendix was approved, as renewal of the license; except for specific must be submitted annually. set forth in Section V of this appendix. Any ITAAC, which are the subject of a § 52.231(a) d. After the Commission has made its other party may file a response thereto. If, on hearing, their expiration will occur upon finding under 10 CFR 52.231(g), reports and the basis of the petition and any response, final Commission action in such proceeding. updates to the plant-specific DCD may be the presiding officer determines that a However, subsequent modifications must submitted annually or along with updates to sufficient showing has been made, the comply with the Tier 1 and Tier 2 design the site-specific portion of the final safety presiding officer shall certify the matter descriptions in the plant-specific DCD unless analysis report for the facility at the intervals directly to the Commission for determination the licensee has complied with the required by 10 CFR 50.71(e), or at shorter of the admissibility of the contention. All applicable requirements of 10 CFR 52.227 intervals as specified in the license. other issues with respect to the plant-specific and Section VIII of this appendix. technical specifications or other operational PART 72—LICENSING X. Records and Reporting requirements are subject to a hearing as part REQUIREMENTS FOR THE of the license proceeding. A. Records INDEPENDENT STORAGE OF SPENT 6. After issuance of a license, the generic 1. The applicant for this appendix shall NUCLEAR FUEL AND HIGH-LEVEL technical specifications have no further effect maintain a copy of the generic DCD that on the plant-specific technical specifications RADIOACTIVE WASTE includes all generic changes to Tier 1 and and changes to the plant-specific technical Tier 2. The applicant shall maintain the 28. The authority citation for Part 72 specifications will be treated as license proprietary and safeguards information continues to read as follows: amendments under 10 CFR 50.90. referenced in the generic DCD for the period Authority: Secs. 51, 53, 57, 62, 63, 65, 69, IX. Inspections, Tests, Analyses, and that this appendix may be referenced, as 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. Acceptance Criteria (ITAAC) specified in Section VII of this appendix. 929, 930, 932, 933, 934, 935, 948, 953, 954, A.1 An applicant or licensee who 2. An applicant or licensee who references 955, as amended, sec. 234, 83 Stat. 444, as references this appendix shall perform and this appendix shall maintain the plant- amended (42 U.S.C. 2071, 2073, 2077, 2092, demonstrate conformance with the ITAAC specific DCD to accurately reflect both 2093, 2095, 2099, 2111, 2201, 2232, 2233, before fuel load. With respect to activities generic changes to the generic DCD and 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. subject to an ITAAC, an applicant for a plant-specific departures made pursuant to L. 86–373, 73 Stat. 688, as amended (42 license may proceed at its own risk with Section VIII of this appendix throughout the U.S.C. 2021); sec. 201, as amended, 202, 206, design and procurement activities, and a period of application and for the term of the 88 Stat. 1242, as amended, 1244, 1246 (42 licensee may proceed at its own risk with license (including any period of renewal). U.S.C. 5841, 5842, 5846); Pub. L. 95–601, sec. design, procurement, construction, and 3. An applicant or licensee who references 10, 92 Stat. 2951 as amended by Pub. L. 102– preoperational activities, even though the this appendix shall prepare and maintain 486, sec. 7902, 106 Stat. 3123 (42 U.S.C. NRC may not have found that any particular written evaluations which provide the bases 5851); sec. 102, Pub. L. 91–190, 83 Stat. 853 ITAAC has been satisfied. for the determinations required by Section (42 U.S.C. 4332); secs. 131, 132, 133, 135, 2. The licensee who references this VIII of this appendix. These evaluations must 137, 141, Pub. L. 97–425, 96 Stat. 2229, 2230, appendix shall notify the NRC that the be retained throughout the period of 2232, 2241, sec. 148, Pub. L. 100–203, 101 required inspections, tests, and analyses in application and for the term of the license Stat. 1330–235 (42 U.S.C. 10151, 10152, the ITAAC have been successfully completed (including any period of renewal). 10153, 10155, 10157, 10161, 10168).
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Section 72.44(g) also issued under secs. licensed pursuant to 10 CFR parts 50 or § 140.13 Amount of financial protection 142(b) and 148(c), (d), Pub. L. 100–203, 101 52. required of certain holders of construction Stat. 1330–232, 1330–236 (42 U.S.C. permits and combined licenses. * * * * * 10162(b), 10168(c), (d)). Section 72.46 also (a) Each holder of a construction issued under sec. 189, 68 Stat. 955 (42 U.S.C. PART 140—FINANCIAL PROTECTION permit under part 50 of this chapter 2239); sec. 134, Pub. L. 97–425, 96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also REQUIREMENTS AND INDEMNITY authorizing construction of a nuclear issued under sec. 145(g), Pub. L. 100–203, REQUIREMENTS reactor who is also the holder of a 101 Stat. 1330–235 (42 U.S.C. 10165(g)). license under part 70 of this chapter Subpart J also issued under secs. 2(2), 2(15), 33. The authority citation for Part 140 authorizing ownership, possession, and 2(19), 117(a), 141(h), Pub. L. 97–425, 96 Stat. continues to read as follows: storage only of special nuclear material 2202, 2203, 2204, 2222, 2224 (42 U.S.C. Authority: Secs. 161, 170, 68 Stat. 948, 71 at the site of the nuclear reactor for use 10101, 10137(a), 10161(h)). Subparts K and L Stat. 576, as amended (42 U.S.C. 2201, 2210); as fuel in operation of the nuclear are also issued under sec. 133, 98 Stat. 2230 secs. 201, as amended, 202, 88 Stat. 1242, as reactor after issuance of an operating (42 U.S.C. 10153) and sec. 218(a), 96 Stat. amended, 1244 (42 U.S.C. 5841, 5842). license under part 50 of this chapter, 2252 (42 U.S.C. 10198). 34. In § 140.2, paragraph (a)(1) is shall (during the period prior to 29. Section 72.210 is revised to read revised to read as follows: issuance of the license authorizing as follows: operation of the reactor) have and § 140.2 Scope. maintain financial protection in the § 72.210 General license issued. (a) * * * amount of $1,000,000. Proof of financial A general license is hereby issued for protection shall be filed with the the storage of spent fuel in an (1) To each person who is an Commission in the manner specified in independent spent fuel storage applicant for or holder of a license § 140.15 prior to issuance of the license installation at power reactor sites to issued pursuant to 10 CFR parts 50, 52, under part 70 of this chapter. persons authorized to possess or operate or 54 to operate a nuclear reactor, and (b) Each holder of a combined license nuclear power reactors under 10 CFR * * * * * for a nuclear power reactor under part part 50 or under a combined license or 35. Section 140.10 is revised to read 52 of this chapter, who is also the duplicate design license under 10 CFR as follows: holder of a license under part 70 of this part 52. chapter authorizing ownership, § 140.10 Scope. 30. In § 72.218, paragraph (b) is possession, and storage only of special revised to read as follows: This subpart applies to applicants for nuclear material at the site of the and holders of licenses issued pursuant nuclear reactor for use as fuel in § 72.218 Termination of licenses. to 10 CFR parts 50, 52, or 54 authorizing operation of the nuclear reactor after * * * * * operation of nuclear reactors, except authorization to operate under part 52 of (b) An application for termination of licenses for the conduct of educational this chapter, shall (during the period the reactor operating, combined, or activities issued to, or applied for, by prior to Commission authorization to duplicate design license submitted persons found by the Commission to be operate the reactor under § 52.231 of under § 50.82 of this chapter must nonprofit educational institutions and this chapter) have and maintain contain a description of how the spent except persons found by the financial protection in the amount of fuel stored under this general license Commission to be Federal agencies. $1,000,000. Proof of financial protection will be removed from the reactor site. This subpart also applies to persons shall be filed with the Commission in * * * * * licensed to possess and use plutonium the manner specified in § 140.15 prior to in a plutonium processing and fuel issuance of the license under part 70 of PART 73—PHYSICAL PROTECTION OF fabrication plant. this chapter. PLANTS AND MATERIALS 36. Section 140.11 is amended by revising paragraph (b) and adding PART 170—FEES FOR FACILITIES, 31. The authority citation for Part 73 paragraph (c) to read as follows: MATERIALS, IMPORT AND EXPORT continues to read as follows: LICENSES, AND OTHER Authority: Secs. 53, 161, 68 Stat. 930, 948, § 140.11 Amounts of financial protection REGULATORY SERVICES UNDER THE as amended, sec. 147, 94 Stat. 780 (402 for certain reactors. ATOMIC ENERGY ACT OF 1954, AS U.S.C. 2073, 2167, 2201); sec. 201, as * * * * * AMENDED amended, 204, 88 Stat. 1242, as amended, (b) In any case where a person is 38. The authority citation for part 170 1245, sec. 1701, 106 Stat. 2951, 2952, 2953 authorized pursuant to parts 50 or 52 of (42 U.S.C. 5841, 5844, 2297f). continues to read as follows: Section 73.1 also issued under secs. 135, this chapter to operate two or more nuclear reactors at the same location, Authority: Sec. 9701, Pub. L. 97–258, 96 141, Pub. L. 97–425, 96 Stat. 2232, 2241 (42 Stat. 1051 (31 U.S.C. 9701); sec. 301, Pub. L. U.S.C. 10155, 10161). Section 73.37(f) also the total primary financial protection required of the licensee for all such 92–314, 86 Stat. 227 (42 U.S.C. 2201w); sec. issued under sec. 301, Pub. L. 96–295, 94 201, Pub. L. 93–438, 88 Stat. 1242, as Stat. 789 (42 U.S.C. 5841 note). Section 73.57 reactors is the highest amount which amended (42 U.S.C. 5841); sec. 205a, Pub. L. is issued under sec. 606, Pub. L. 99–399, 100 would otherwise be required for any one 101–576, 104 Stat. 2842, as amended (31 Stat. 876 (42 U.S.C. 2169). of those reactors: Provided, That such U.S.C. 901, 902). primary financial protection covers all 32. In § 73.1, paragraph (b)(1)(i) is 39. In § 170.2, paragraphs (g) and (k) reactors at the location. revised to read as follows: are revised to read as follows: (c) A holder of a combined license § 73.1 Purpose and scope. issued under part 52 of this chapter § 170.2 Scope. * * * * * must comply with paragraphs (a) and (b) * * * * * (b) * * * of this section when the Commission (g) An applicant for or holder of a (1) * * * authorizes operation under § 52.231(g). production or utilization facility (i) The physical protection of 37. Section 140.13 is revised to read construction permit or operating license production and utilization facilities as follows: issued under 10 CFR part 50, or an
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approval, certification, permit, or submission of an application for a For the Nuclear Regulatory Commission. license issued under 10 CFR part 52; construction permit; Annette L. Vietti-Cook, * * * * * * * * * * Secretary of the Commission. (k) Applying for or already has [FR Doc. 03–16413 Filed 7–2–03; 8:45 am] applied for review, under 10 CFR part Dated at Rockville, Maryland, this 24th day of June, 2003. BILLING CODE 7590–01–P 52, of a facility site prior to the
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Part III
Department of the Interior Fish and Wildlife Service
50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Notice of Remanded Determination of Status for the Contiguous United States Distinct Population Segment of the Canada Lynx; Clarification of Findings; Final Rule
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DEPARTMENT OF THE INTERIOR threatened on March 24, 2000 (65 FR As noted above, plaintiffs contend 16052). After listing the lynx as that our determination that Fish and Wildlife Service threatened, plaintiffs in the case of ‘‘[c]ollectively, the Northeast, Great Defenders of Wildlife v. Norton (Civil Lakes, and Southern Rockies do not 50 CFR Part 17 Action No. 00–2996 (GK)) initiated constitute a significant portion of the RIN 1018–AF03 action in Federal District Court, range of the DPS,’’ was critical to our challenging the listing of the lynx as decision not to list the lynx as Endangered and Threatened Wildlife threatened and alleging violations of the endangered. Plaintiffs maintain that, if and Plants; Notice of Remanded Act and the Administrative Procedure those three regions are considered Determination of Status for the Act (5 U.S.C. 551 et seq.). Plaintiffs collectively to be a significant portion of Contiguous United States Distinct argued that the Service acted arbitrarily the DPS, ‘‘then the Lynx’s highly Population Segment of the Canada and capriciously when it (1) did not imperilled status in those three areas Lynx treat the four lynx regions as separate would necessitate listing of the entire DPSs, (2) determined that the lack of DPS as endangered.’’ Pls. Mot. for AGENCY: Fish and Wildlife Service, guidance for conservation of lynx in Summ. J. at 30 (emphasis in original). Interior. National Forest Land and Resource However, the Service would need to ACTION: Clarification of findings. Management Plans and Bureau of Land find that the lynx is endangered in these Management (BLM) Resource Area areas and that they were significant in SUMMARY: The Fish and Wildlife Service Management Plans is the single factor order to list the entire DPS. Therefore, (Service), in response to the December threatening the contiguous United we first reviewed all of the threats to the 26, 2002, memorandum opinion and States DPS of lynx, (3) did not designate lynx in these areas to determine order of the United States District Court critical habitat for the lynx, and (4) whether it is in danger of extinction in for the District of Columbia, in the case determined that ‘‘[c]ollectively, the each area. We identified two areas or of Defenders of Wildlife v. Norton (Civil Northeast, Great Lakes and Southern parts of areas in which the lynx might Action No. 00–2996 (GK)) and pursuant Rockies do not constitute a significant be in danger of extinction. We then to the Endangered Species Act of 1973, portion of the range of the DPS.’’ determined whether either of those as amended (ESA or Act), provides a On December 26, 2002, the Court areas (or parts of areas) constitutes a clarification to the findings we made in significant portion of the range of the support of the final rule that listed issued its memorandum opinion and order, deciding that the Service’s lynx. Canada lynx (Lynx canadensis) (lynx) as The remainder of this section determination that ‘‘[c]ollectively, the threatened. The lynx is currently listed describes some important concepts used Northeast, Great Lakes and Southern as threatened in the contiguous United throughout the following analysis. Later Rockies do not constitute a significant States as a Distinct Population Segment sections include background portion of the range of the DPS’’ must (DPS) that includes the States of information on the natural history and be set aside and remanded to the Colorado, Idaho, Maine, Michigan, range of the lynx, responses to public Service for further consideration of the Minnesota, Montana, New Hampshire, comments, an analysis of the quantity lynx’s status under the ESA consistent New York, Oregon, Utah, Vermont, and quality of habitat throughout the with the Court’s memorandum opinion. Washington, Wisconsin, and Wyoming. range of the DPS, an analysis of the As a result of our reanalysis of the basis The Court explained that the Service’s threats facing the species in the areas for that final rule, which was directed determination about the four regions addressed by the remand, a finding as by the Court, we find that the lynx is not was counterintuitive and contrary to the to the areas in which the lynx currently endangered throughout a significant plain meaning of the ESA phrase are in danger of extirpation, and a portion of its range. This finding does ‘‘significant portion of its range.’’ The finding that those areas do not not affect the status of the lynx as Court did not address the issues constitute a significant portion of the currently set forth in 50 CFR 17.11; the concerning the threats and the DPSs. range of the lynx. lynx continues to be listed as threatened The Court also ordered the Service to As a preliminary matter, we note that in the States listed above. This finding ‘‘undertake prompt rulemaking’’ in the Court suggested, but did not decide, also does not affect the special rule order to designate critical habitat for that ‘‘significant’’ is appropriately pursuant to section 4(d) of the Act for lynx, and ordered injunctive relief defined in this context as ‘‘a noticeably the Canada lynx set forth in 50 CFR directed at section 7 consultation. or measurably large amount,’’ citing a 17.40(k). The Court ordered the determination dictionary definition. However, there concerning a ‘‘significant portion of its are other definitions of significance that ADDRESSES: The complete file for this range’’ be remanded to the Service and pertain to importance. Moreover, we rule is available for inspection, by completed within 180 days of the date believe this is more consistent with the appointment, during normal business of the order consistent with the Court’s intent of the Act in the context of the hours at the Montana Field Office, U.S. memorandum opinion. With this provision at issue. Otherwise, a severe Fish and Wildlife Service, 100 N. Park document, the Service is providing its threat to a small area within the range Avenue, Suite 320, Helena, Montana consideration of this issue. This of a species would always require the 59601. document does not address critical species to be listed as endangered, no FOR FURTHER INFORMATION CONTACT: habitat for the lynx, since our listing matter how inconsequential that area Mark Wilson, Field Supervisor, budget is currently insufficient to begin might be given the biology of the Montana Field Office (see ADDRESSES), work on a rule for critical habitat. The species. For example, building a large telephone 406–449–5225; facsimile Service will seek public comment in the dam may make the area covered by the 406–449–5339. future when it proposes critical habitat. resulting artificial lake unsuitable for an SUPPLEMENTARY INFORMATION: This document also does not address aquatic species currently resident in the the special rule for Canada lynx river to be dammed. The area covered Background established in the March 24, 2000, final by the lake would be a ‘‘measurably The Service listed the Canada lynx, listing rule. That rule, which is found in large’’ area, and therefore a measurably hereafter referred to as lynx, as 50 CFR 17.40(k), remains in effect. large portion of the range of the species.
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However, if the species is sufficiently unoccupied habitats, augment existing contribute to the persistence of the widespread and healthy, the area resident populations, or disperse to metapopulation (as described in the subject to the threat would not be habitats where they cannot survive. next paragraph). Unsuccessful dispersal biologically important, and we believe it As a result of the factors described is a natural phenomenon that occurs was not the intent of Congress that all above, the range of the lynx in the when lynx move to habitats that are such circumstances lead to the listing of contiguous United States is comprised unable to sustain lynx. These all affected species. of areas supporting resident, breeding individuals are unable to survive and Understanding ‘‘significant’’ to mean populations and areas supporting are lost from the metapopulation. ‘‘important,’’ the following analysis occasional dispersers: Unsuccessful dispersal is demonstrated concentrates on applying our (1) Resident population—Resident, by records of lynx in areas such as understanding of the ecology of the lynx breeding populations exist in areas of North Dakota, Nebraska, and Iowa, to the geography of its habitat. This abundant, higher-quality habitat. These which cannot support lynx populations allows us to determine whether a given areas are ‘‘core’’ areas essential to in the long term (Adams 1963; area is a significant portion of the range maintaining lynx in the contiguous Gunderson 1978; W. Jobman, U.S. Fish of lynx. United States. During cyclic population and Wildlife Service, in litt. 1997). With the help of new information lows, resident lynx populations are Another word we use is available as a result of ongoing research, naturally reduced to extremely low ‘‘metapopulation.’’ According to we continue to improve our numbers of individuals. Throughout McKelvey et al. (2000a), a understanding of lynx ecology in the this document, we use the term metapopulation is a number of discrete contiguous United States. In delineating ‘‘resident population’’ to refer to a group subpopulations within habitat patches, the range of the lynx in the contiguous of lynx that has exhibited long-term connected by dispersal. Through time, United States, we must take into persistence in an area as determined by subpopulations may go extinct (no account lynx life history requirements, a variety of factors, such as evidence of longer existing or living) and be population dynamics, and the natural reproduction, successful recruitment recolonized, but the larger features of the vegetation communities into the breeding cohort, and metapopulation persists. We believe that make up lynx habitat. The maintenance of home ranges. lynx in the contiguous United States are following list summarizes fundamental (2) Dispersers—Lynx records in many part of a larger metapopulation with elements that determine the range of the parts of the contiguous United States are lynx populations in Canada. lynx in the contiguous United States. of dispersing animals. Lynx occur as The range of the lynx must be We describe these elements in further dispersers where boreal forest is considered differently from the range of detail later in this notice. isolated, patchy, or of marginal quality other species that are less mobile and (1) Lynx in the contiguous United such that it cannot sustain a resident, have more stable population dynamics. States are at the southern margins of a breeding lynx population. We include Because the lynx is highly mobile and widely-distributed lynx population areas of the contiguous United States has cyclic population dynamics that are whose center is in north-central Canada that contain boreal forest as potential tied to its primary prey, the snowshoe and Alaska. Lynx populations in the lynx range. Although dispersing lynx hare, numbers of lynx naturally contiguous United States are sustained may periodically occupy some of this fluctuate and become extremely low at by cyclic influx from lynx populations range, there is a low probability that times during a cycle. Additionally, in Canada. habitat quality and quantity are where snowshoe hare populations are (2) Lynx are specialized predators of sufficient to support a breeding not adequate, resident lynx populations snowshoe hare (Lepus americanus). population. It is possible that some of cannot be sustained. Because of this, Lynx populations track hare cycles. the large outlying patches of boreal resident lynx populations never Abundant hares are necessary to forest may periodically support some occurred everywhere boreal forest support survival of lynx kittens and breeding lynx; however, evidence of this existed in the contiguous United States. recruitment into and maintenance of the is minimal and our best information Where the boreal forest was naturally lynx population. As a result, depending indicates that these areas are likely to more patchy and marginal the habitat on habitat quality, local lynx contribute little to the persistence of the was incapable of supporting an populations naturally may not be able to species in the contiguous United States. adequate snowshoe hare population that survive through a cyclic low in the hare Some dispersing lynx are found in in turn was able to support a resident cycle. completely unsuitable habitats, such as lynx population over time. As a result, (3) Lynx and snowshoe hare habitat is prairie or deciduous forest, where they only a few areas in the contiguous boreal forest where there are cold are unable to survive in the long term. United States historically supported winters with deep snow. We do not include such areas within the adequate quantity and quality of habitat (4) In the contiguous United States, range of lynx because such occurrences to support resident lynx populations the boreal forest is at its southernmost are unpredictable and because, to the over time. Many historical lynx extent, transitions into other vegetation best of our knowledge, such areas have occurrences across a large area of the communities, and is naturally patchy. not contained conditions capable of contiguous United States were likely These natural patches may not be big supporting lynx since at least the time dispersers. The occurrence of dispersing enough or of high enough quality to of European settlement. lynx is unpredictable, and dispersing support a resident lynx population. We use the word ‘‘dispersers’’ to refer lynx will continue to periodically move (5) The habitat within these patches to lynx that have left the area they into areas that are not lynx habitat. This changes over time and location, originally occupied for various reasons, historic, natural condition continues to naturally becoming suitable or most often when snowshoe hare exist today, as will be discussed in this unsuitable for lynx with forest populations decline. To successfully document. succession or changes in local climate disperse, lynx must find suitable habitat conditions. and a mate and must successfully Natural History (6) Lynx disperse long distances when reproduce (McKelvey et al. 2000a). In the following section we describe hare populations decline. As a result, Successful dispersals can result in the in more detail than we did in the final they can colonize suitable but colonization of unoccupied habitats and rule the natural history, population
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dynamics, and habitat of lynx in the al. 1994; O’Donoghue et al. 1997, ecological factors. Snowshoe hare contiguous United States, information 1998a). In Maine, snowshoe hare provide the quality prey necessary to necessary to delineate lynx range. The abundance and lynx occurrence are support high-density lynx populations lynx is a medium-sized cat with long positively associated with late (Brand and Keith 1979). Lynx also prey legs; large, well-furred paws; long tufts regeneration forests (forest stands that opportunistically on other small on the ears; and a short, black-tipped are growing back 12 to 30 years after mammals and birds, particularly when tail (McCord and Cardoza 1982). The being clear-cut and have greater than 50 hare populations decline (Nellis et al. lynx’s long legs and large feet make it percent canopy closure), evidence that 1972; Brand et al. 1976; McCord and highly adapted for hunting in deep lynx are selecting habitat primarily on Cardoza 1982; O’Donoghue et al. 1997, snow. the abundance of primary prey (Hoving 1998a). Red squirrels (Tamiasciurus Lynx are highly specialized predators 2001). hudsonicus) are an important alternate of snowshoe hare. The North American Lynx numbers and snowshoe hare prey (O’Donoghue et al. 1997; 1998a; distribution of the lynx is nearly the densities in the contiguous United Apps 2000; Aubry et al. 2000). same as that of the snowshoe hare, both States generally do not get as high as in However, a shift to alternate food of which are strongly associated with the center of their range in Canada, and sources may not sufficiently compensate boreal forest (Bittner and Rongstad there is no evidence they ever did so in for the decrease in hares consumed to be 1982; McCord and Cardoza 1982; Quinn the past (Hodges 2000a, 2000b; adequate for lynx reproduction and and Parker 1987; Agee 2000; Aubry et McKelvey et al. 2000b). It appears that kitten survival (Brand and Keith 1979, al. 2000; McKelvey et al. 2000b). Boreal northern and southern hare populations Koehler 1990, Koehler and Aubry 1994). forests are cold and moist with conifer have similar cyclic dynamics but that in When snowshoe hare densities decline, trees, the predominant type of trees southern areas both peak and low the lower quality diet causes sudden being species of spruce and fir (Elliot- densities are lower than in the north decreases in the productivity of adult Fisk 1988). Lynx habitat can be (Hodges 2000b). However, it is unclear female lynx and decreased survival of generally described as boreal forests that whether hare populations cycle kittens, if any are born during this time; have cold winters with deep snow and everywhere in the contiguous United as a result, recruitment of young into the that provide a snowshoe hare prey base States. Relatively low snowshoe hare population nearly ceases during cyclic (Quinn and Parker 1987, McKelvey et densities at southern latitudes are likely lows of snowshoe hare populations al. 2000b, Mowat et al. 2000). For a result of the naturally patchy, (Nellis et al. 1972; Brand et al. 1976; example, in the Northeast, lynx were transitional boreal habitat at southern Brand and Keith 1979; Poole 1994; most likely to occur in areas with latitudes that prevents hare populations Slough and Mowat 1996; O’Donoghue et greater than 268 centimeters (cm) (105 from achieving densities similar to those al. 1997, Mowat et al. 2000). inches (in)) of annual snowfall (Hoving of the expansive northern boreal forest Lynx den sites are found where coarse 2001). Boreal forests are naturally (Wolff 1980; Buehler and Keith 1982; woody debris, such as downed logs and dynamic and, therefore, are known as Koehler 1990; Koehler and Aubry 1994). windfalls, provides denning sites with ‘‘disturbance forests’’ (Elliot-Fisk 1988, Additionally, the presence of more security and thermal cover for lynx Agee 2000). The landscape changes over predators and competitors of hares at kittens (McCord and Cardoza 1982; time and location as the forest southern latitudes may inhibit the Koehler 1990; Koehler and Brittell 1990; undergoes natural succession following potential for high-density hare Slough 1999; Squires and Laurion 2000; natural or human-caused disturbances populations with extreme cyclic J. Organ, U.S. Fish and Wildlife Service, such as fire, insect epidemics, wind, ice, fluctuations (Wolff 1980). As a result of in litt. 1999). The integral component disease, and logging. Large-scale naturally lower snowshoe hare for all lynx den sites appears to be the disturbance is necessary to create the densities, lynx densities at the southern amount of downed, woody debris mosaic of different successional forest part of the range rarely achieve the high present, not the age of the forest stand stages that provide suitable foraging and densities that occur in the northern (Mowat et al. 2000). In Maine, 17 den denning habitat for lynx. Lynx in the boreal forest (Aubry et al. 2000). sites have been located in a variety of contiguous United States are at the The association between lynx and stand types, including 10- to 20-year-old southern margins of a widely snowshoe hare is considered a classic clear-cut and adjacent residual stands (J. distributed lynx population that is most predator-prey relationship (Saunders Organ, U.S. Fish and Wildlife Service, abundant in northern Canada and 1963; van Zyll de Jong 1966; Quinn and in litt. 1999; G. Matula, Maine Alaska. Parker 1987, Krebs et al. 2001). In Department Inland Fisheries and To understand habitat relationships of northern Canada and Alaska, lynx Wildlife in litt. 2003). Maine den sites lynx one must first understand the populations fluctuate on approximately are characterized by regenerating habitat relationships of snowshoe hares, 10-year cycles that follow the cycles of hardwoods and softwoods, dense their primary prey. Snowshoe hares use hare populations (Elton and Nicholson understory, and abundant coarse woody spruce and fir forests with dense 1942; Hodges 2000a, 2000b; McKelvey debris (J. Organ, in litt. 1999, 2003). In understories that provide forage, cover et al. 2000b). Generally, researchers Washington, lynx denned in lodgepole to escape from predators, and protection believe that when hare populations are pine (Pinus contorta), spruce (Picea during extreme weather (Wolfe et al. at their cyclic high, the interaction of spp.), and subalpine fir (Abies 1982; Monthey 1986; Hodges 2000a, predation and food supply causes hare lasiocarpa) forests older than 200 years 2000b). Generally, earlier successional populations to decline drastically with an abundance of downed woody (younger) forest stages have greater (Buehler and Keith 1982; Krebs et al. debris (Koehler 1990). A den site in understory structure than do mature 1995; O’Donoghue et al. 1997, Krebs et Wyoming was located in a mature forests and, therefore, support higher al. 2001). There is little evidence of subalpine fir/lodgepole pine forest with hare densities (Fuller 1999, Hodges regular snowshoe hare cycles in the abundant downed logs and dense 2000a, 2000b). Lynx generally Northeast and southern Quebec (Hoving understory (Squires and Laurion 2000). concentrate their hunting activities in 2001), but hare populations do fluctuate Lynx require very large areas areas where hare populations are high widely in this region. Hare fluctuations containing boreal forest habitat. In the (Koehler et al. 1979; Parker 1981; Ward in this region may be more influenced Northeast, lynx were most likely to and Krebs 1985; Major 1989; Murray et by forest practices, weather, and other occur in areas containing suitable
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habitat that were greater than 100 square to disperse long distances, crossing 2000b). It appears hare populations and, kilometers (km 2) (40 square miles unsuitable habitats, indicates they are as a result, lynx populations in the (mi 2)) (Hoving 2001). The requirement capable of colonizing suitable habitats southern part of the range are cyclic, for large areas also is demonstrated by and finding potential mates in areas that although the amplitude of the home ranges that encompass many are isolated from source lynx fluctuations in this portion of the range square miles. The size of lynx home populations. is not as extreme as in the center of the range (Aubry et al. 2000; Hodges 2000a, ranges varies by the animal’s gender and Range of Lynx in the Contiguous United 2000b; Malloy 2000; McKelvey 2000b). age, abundance of prey, season, and the States density of lynx populations (Hatler When there is a high in the lynx 1988; Koehler 1990; Poole 1994; Slough Within the contiguous United States, population in central Canada, it acts like and Mowat 1996; Aubry et al. 2000; the lynx’s range coincides with that of a wave radiating out to the margins of Mowat et al. 2000). Based on a limited the southern margins of the boreal forest the lynx range (McKelvey et al. 2000a, number of studies in southern boreal along the Appalachian Mountains in the 2000b). We know from historic data that forest, the average home range for males Northeast, the western Great Lakes and the magnitude of the lynx population is 151 km 2 (58 mi 2), for females it is 72 the Rocky Mountains and Cascade high emanating from the central km 2 (28 mi 2) (Aubry et al. 2000). Mountains in the West. In these areas, Canadian boreal forest varies for each Recent home range estimates from the boreal forest is at its southern limits, cycle (McKelvey et al. 2000a, 2000b). Maine are 70 km 2 (27 mi 2) for males becoming naturally fragmented into This wave can be produced by local and 52 km 2 (20 mi 2) for females (G. patches of varying size as it transitions populations reacting to environmental Matula, in litt. 2003). However, into subalpine forest in the West and conditions, dispersers, or a combination documented home ranges in both the deciduous temperate forest in the east of these (McKelvey et al. 2000b). southern and northern boreal forest vary (Agee 2000, Wisconsin Department Schwartz et al. (2002) concluded this widely from 8 to 800 km 2 (3 to 300 mi 2) Natural Resources, in litt. 2003). wave is driven by dispersers, based on (Saunders 1963; Brand et al. 1976; Mech Because the boreal forest transitions into findings of a high level of gene flow 1980; Parker et al. 1983; Koehler and other forest types to the south, scientists between lynx in Alaska, Canada, and Aubry 1994; Apps 2000; Mowat et al. have difficulty mapping its exact the western United States. 2000; Squires and Laurion 2000; Squires boundaries (Elliot-Fisk 1988). Therefore, Lynx populations in the northeastern et al. 2001; G. Matula, in litt. 2003). precisely identifying and describing the United States and southeastern Canada distribution of lynx habitat also is Generally, it is believed that larger home are separated from those in north- difficult because there are several ranges, such as have been documented central Canada by the St. Lawrence vegetation and landform classifications in some areas in the southern extent of River. There is little evidence of regular and descriptions that have been the species’ range in the West, are a hare or lynx population cycles in this published for various parts of North response to lower-density snowshoe area (Hoving 2001), but wide America (U.S. Forest Service and hare populations (Koehler and Aubry fluctuations in lynx and snowshoe hare Bureau of Land Management 1999). 1994; Apps 2000; Squires and Laurion populations do occur. On a smaller However, the term ‘‘boreal forest’’ 2000). scale, fluctuating populations in the broadly encompasses most of the core of this area (Quebec’s Gaspe´ Lynx are highly mobile and have a vegetative descriptions of this Peninsula, western New Brunswick, and propensity to disperse. Long-distance transitional forest type that makes up northern Maine) can potentially movements (greater than 100 kilometers lynx habitat in the contiguous U.S. influence lynx distribution up to several (km) (60 miles (mi))) are characteristic (Agee 2000). hundred miles distant. (Mowat et al. 2000). Lynx disperse In addition to appropriate vegetation We believe lynx dispersing during primarily when snowshoe hare type, delineation of the range of the lynx periods of population highs will occupy populations decline (Ward and Krebs within the contiguous United States many patches of boreal habitat at the 1985; Koehler and Aubry 1994; must consider snow conditions. Lynx periphery of their range. Some patches O’Donoghue et al. 1997; Poole 1997). are at a competitive advantage over will be suitable to maintain a long-term Subadult lynx also disperse even when other carnivores (e.g., bobcats (Lynx population and some will not. Where prey is abundant (Poole 1997), rufus) or coyotes (Canis latrans)) in the boreal forest habitat patches within presumably as an innate response to areas that have cold winters with deep the contiguous United States are large, establish home ranges. Lynx also make snow because of the lynx’s with suitable habitat, prey, and snow exploratory movements outside their morphological adaptations for hunting conditions, resident populations of lynx home ranges (Squires et al. 2001). Lynx and surviving in such environments. are able to survive throughout the low are capable of moving extremely long Therefore, lynx populations may not be period of the approximately 10-year distances (greater than 500 km (300 mi)) able to successfully compete and persist cycle. Most likely the influx of lynx (Mech 1977; Brainerd 1985; Washington in areas with insufficient snow even if from populations in Canada at the high Department of Wildlife 1993; Poole suitable forest conditions otherwise point of the cycle augments these 1997; Mowat et al. 2000; Squires et al. appear to be present (Ruediger et al. resident populations. It is likely that 2001); for example, a male was 2000; Ruggiero et al. 2000b; Hoving some of these habitat patches within the documented traveling 620 km (380 mi) 2001; S. Hassett, Wisconsin Department contiguous United States are able to act (Brainerd 1985). A male lynx in Natural Resources, in litt. 2003). A as sources of lynx (where recruitment is Wyoming made an exploratory consistent winter presence of bobcats greater than mortality) that are able to movement of 730 km (450 mi) round indicates such areas are not of high disperse and potentially colonize other trip from its home range (Squires et al. quality for lynx. patches (McKelvey et al. 2000a). 2001). While it is assumed lynx would Lynx in the contiguous United States In other areas, the lynx that remain in prefer to travel where there is forested are part of a larger metapopulation an area after a cyclic population high cover, the literature contains many whose center is located in the northern may be so few or in naturally marginal examples of lynx crossing large, boreal forest of central Canada; lynx habitat that they are not able to persist unforested openings (Roe et al. 2000). populations emanate from this area or establish local populations, although The ability of both male and female lynx (Buskirk et al. 2000b; McKelvey 2000a, some reproduction may occur. Such
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areas naturally act as ‘‘sinks,’’ where 1980s and early 1990s were not unusual we reopened the comment period for 30 lynx mortality is greater than nor appreciably lower than those days to acquire information to assist us recruitment and lynx are lost from the recorded prior to the 1960s. during our reconsideration (March 17, overall population (McKelvey et al. Some maps (e.g., Hall and Kelson 2003, 68 FR 12611). This comment 2000a). Sink habitats are most likely 1959, Tanimoto and Garton 1993) period closed on April 16, 2003. those places on the periphery of the incorrectly portray the range of the lynx southern boreal forest where habitat by encompassing peripheral records Summary of Comments and naturally becomes more patchy and from areas that are not within boreal Recommendations more distant from larger lynx forest or do not have cold winters with As a result of the reopened comment populations. We consider lynx found in deep snow, such as prairie or deciduous period in March and April 2003, the these sink habitats to be dispersers but forest. Such maps have led to a Service received 118 comments and we include these areas within the range misperception that the historic range of recommendations. Of these comments, 2 of the lynx. Changes in the habitat the lynx in the contiguous United States were from Congressional or Legislative conditions or cyclic fluctuations in the was once much more extensive than officials, 6 were from Federal agencies; prey populations may cause some ecologically possible. Records of lynx 6 from States; 2 from County habitat patches to change from being outside of southern boreal forest in Commissioners, 17 from environmental sinks to sources and vice versa. Through peripheral habitats that are unable to organizations, 3 from businesses, 9 from this natural process, local lynx support lynx represent long-distance Industry Trade Associations, 1 from a populations in the contiguous United dispersers that are lost from the University, and 70 from individuals. States may ‘‘blink’’ in and out as the metapopulation unless they return to Some commenters provided information metapopulation goes through the 10- boreal forest and contribute to the relevant to our determination regarding year cycle. We conclude that where persistence of a population. These the significant portion of the range of habitat is of high enough quality and unpredictable and temporary lynx. Comments of a similar nature are quantity, resident lynx populations are occurrences are not included within grouped into general issues. These able to become established or existing either the historic or current range of issues and our responses are discussed populations are augmented, aiding in lynx because they are well outside of below. their long-term persistence. lynx habitat. This includes records from We received numerous comments We include areas that contain boreal Connecticut, Indiana, Iowa, covering a broad spectrum of lynx- forest but that support only dispersers Massachusetts, Nebraska, Nevada, North within the range of the lynx because of Dakota, Ohio, Pennsylvania, South related issues that are not the subject of the possibility lynx could establish a Dakota, and Virginia (Hall and Kelson this notice or are beyond the scope of small, local population and contribute 1959; Burt 1954 in Brocke 1982; the court’s remand. We are not to the persistence of the Gunderson 1978; McKelvey et al. 2000b; addressing these comments in this metapopulation. However, evidence of J. Belfonti, The Nature Conservancy, in document. These comments covered this is minimal. litt. 1994; S. Johnson, Indiana such subjects as: designation of critical An example of the cyclic population Department of Natural Resources, in litt. habitat for lynx; the existence of various ‘‘wave’’ occurred in the 1960s and 1994; P. Jones, Ohio Department of DPSs of lynx; general support for or 1970s, when numerous lynx were Natural Resources, in litt. 1994; South opposition to protection of lynx under reported in the contiguous United States Dakota Natural Heritage Program, in litt. the Act; support for or opposition to far from source lynx populations. These 1994; W. Jobman, U.S. Fish and Wildlife lynx re-introduction efforts; classifying records of dispersing lynx correlate to Service, in litt. 1997; Smithsonian the lynx re-introduction in the Southern unprecedented cyclic lynx highs in Institute, in litt. 1998). In the proposed Rocky Mountains as an experimental, Canada (Adams 1963; Harger 1965; rule to list the lynx, we included non-essential population; concern that Mech 1973; Gunderson 1978; Thiel Massachusetts and Pennsylvania in the the Service was prioritizing the listing 1987; McKelvey et al. 2000b; Mowat et historic range of the lynx but removed and protection of charismatic mega- al. 2000). These dispersers frequently those areas from the range in the final fauna ahead of other flora and fauna; the were documented in areas such as rule because of better information that competency and intent of the Service; Wisconsin, that are close to source historically habitat in these States was an internet retail vendor of lynx pelts; populations of lynx in Canada or not capable of supporting lynx. We recovery planning; and streamlining possibly northeastern Minnesota and consider both the historic and current section 7 consultations. In particular, that contain some boreal forest. But range to consist of Colorado, Idaho, we received a number of comments as there also have been a number of Maine, Michigan, Minnesota, Montana, to the status of the lynx throughout the occurrences of dispersers in unsuitable New Hampshire, New York, Oregon, U.S. DPS (i.e., endangered, threatened, habitats far from source populations, Utah, Vermont, Washington, Wisconsin, or neither). However, the only portion of such as North Dakota prairie (Adams and Wyoming because these States our March 24, 2000 final listing 1963; Gunderson 1978; Thiel 1987; support some boreal forest and have determination that the court remanded McKelvey et al. 2000b; Verts and more frequent records of lynx. for further consideration was our Carraway 2001). determination that ‘‘[c]ollectively, the Rather than recognizing that the Previous Federal Action Northeast, Great Lakes and Southern cyclic peaks of the early 1960s and The final rule that listed lynx as Rockies do not constitute a significant 1970s were anomalous highs for the threatened in the contiguous United portion of the range of the DPS.’’ Our 20th century, as explained in the final States described the history of the finding on this limited remand is rule, some wildlife managers expected Service’s actions concerning the listing discussed below. To the extent that the subsequent cycles to be equally high. of the lynx. That discussion is information we received since the final Managers became concerned when incorporated herein by reference. Since listing determination, or that we receive harvest returns in the 1980s and 1990s publication of the final rule and as a in the future, causes us to reevaluate the indicated comparatively low cycles. result of the litigation that requires us to listing of the lynx, we will issue an However, as thoroughly described in the reconsider our determination about the appropriate proposed rule when final rule, lynx harvest returns in the significant portion of the range of lynx, resources allow.
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We conducted peer review of the in northern Washington, which lynx can contiguous United States the lynx proposed rule to list the contiguous cross, although we believe most occurs in four regions—the Northeast, United States population of lynx during movement of lynx to be north-south Great Lakes, Southern Rocky the open public comment period in within contiguous habitat with Canada Mountains, and Northern Rocky 1998. For this court-ordered reanalysis and less likely that lynx would move Mountains/Cascades. As described of the 2000 final rule listing the lynx, between habitat patches within elsewhere in this document, we we did not have time to conduct Washington. Furthermore, the Cascades combine the Northern Rocky Mountains additional peer review. alone supports the smallest amount of and Cascades in our analysis because Issue 1: Technical information was lynx habitat of any region within the the two regions are only separated by provided based on recent research on contiguous United States. The relative the Okanogan River valley, which lynx lynx and snowshoe hares in Maine and size and close proximity of the lynx can cross, and forest types and land Montana. Additional technical habitat in the Cascades to that in the ownership are similar. Furthermore, the information on lynx populations and Northern Rocky Mountains further Cascades alone support the least amount lynx habitat quality and quantity was supports considering both areas as one. of lynx habitat of any region in the provided by the State of Maine, the Combining these two regions has not in contiguous United States. In evaluating State of Vermont, the State of Colorado, any way diminished or obscured our whether a region qualified as a separate the State of Wisconsin, the State of analysis of the status of lynx or the DPS, we analyzed whether lynx in each Wyoming, the State of Minnesota, threats to the species. research by the University of Maine and Issue 4: Several commenters region were both discrete and the University of Montana, the U.S. suggested the Cascades, the Cascades/ significant, as required by our DPS Forest Service, the BLM, the National Northern Rocky Mountains, the policy. We concluded that within the Park Service, a number of Southern Rockies, the Great Lakes, and contiguous United States these regions environmental and industry groups, and the Northeast Lynx populations should are geographically isolated from each individuals. each be designated as individual DPSs. other and, therefore, are discrete. Since Response: We incorporated this Other commenters believed the the final rule, we are less certain that information into this document. contiguous United States as a whole the Southern Rocky Mountains regions Issue 2: Several commenters does not fulfill the criteria to be a DPS were historically as isolated as expressed support or concern for the for lynx. described by some authors. We believe Service’s determination considering the Response: Reevaluation of DPS issues it is likely that lynx in the Southern significant portion of the range of the is outside of the scope of the remand in Rocky Mountains region may have been lynx. Specifically, commenters this case. However, because the dispersers that arrived during extremely explained their concerns about whether plaintiffs’ claims regarding application high population cycles, as indicated by or not the Northeast, Great Lakes, or the of the Service’s authority to list DPSs the fact that the last verified record of Southern Rockies constitute a have not yet been addressed by the lynx in the region is from 1973, which significant portion of the range of the court, we are responding to these correlates to an extreme cyclic lynx. comments to update and elaborate on population high documented Response: The Act defines our analysis in the final rule. The Act throughout the contiguous United States ‘‘endangered species’’ as any species gives us the authority to list fish, and in Canada. As a result, our original which is in danger of extinction wildlife and plants by species, conclusion that the Southern Rocky throughout all or a significant portion of subspecies, or by DPS of any species of Mountains supported an isolated its range. A ‘‘threatened species’’ is any vertebrate fish or wildlife which resident lynx population may not be species which is likely to become an interbreeds when mature. However, correct, and the region should perhaps endangered species within the Congress directed that we use our be considered connected to the foreseeable future throughout all or a authority to list by DPS sparingly (see Northern Rocky Mountains/Cascades significant portion of its range. The Senate Report 151, 96th Congress, 1st region. District Court found our determination Session). The Service and National that the Northeast, Great Lakes, and the Marine Fisheries Service DPS policy (61 When evaluating the status of a Southern Rockies do not constitute a FR 4721) identifies criteria that must be potential DPS, the DPS policy requires significant portion of the range of the met for a vertebrate group to qualify as that we evaluate the significance of the lynx was arbitrary and capricious, and a DPS, but it does not require that we population segment in relation to the as a result of that finding, directed us to designate a DPS in all cases where a taxon. A taxon is the taxonomic group reevaluate it. Based on our reanalysis, vertebrate group meets the DPS criteria. of animals to which the population we have determined that lynx is not in The Service lists, reclassifies, or delists belongs—in this case the species Lynx danger of extinction throughout a at the level we believe to be most canadensis. The DPS policy identifies significant portion of its range in the appropriate to carry out the elements that may be considered in contiguous United States DPS. conservation provisions of the Act. determining the discrete population Issue 3: Several commenters opposed In this document we reaffirm our segment’s importance to the taxon to combining the Cascades in general, or determination in the final rule to list the which it belongs. These include: (1) specific locations within Washington, lynx in the contiguous United States as Persistence of the discrete population with the Northern Rocky Mountain a single DPS. There has been no new segment in an ecological setting unusual region for our analysis. information since the final rule was or unique for the taxon, (2) evidence Response: We combine the Cascades published in 2000 that compels us to that loss of the discrete population with the Northern Rocky Mountain change our original determination. segment would result in a significant region for our analysis and for Subsequent to issuing the proposal to gap in the range of a taxon, (3) evidence convenience only because the issues in list the lynx in 1998, we evaluated that the discrete population segment both regions are similar and frequently whether any of the four regions represents the only surviving natural the best information available addressed individually fulfilled the criteria to be occurrence of a taxon, and (4) evidence both regions. The two areas are listed as a DPS. As described in the final that the discrete population segment separated by the Okanogan River valley rule, we recognize that within the differs markedly from other populations
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of the species in its genetic classic boreal forest of northern use of the LCAS in assessing the characteristics. latitudes in Canada and Alaska, which impacts of Federal actions has been Lynx canadensis has an extensive is the center of lynx range. Within this effective in removing most threats to the distribution in North America, existing transitional boreal forest within the species on these Federal lands. in the boreal forest from Alaska contiguous United States there are core However, amendment or revision of throughout Canada from the Yukon and areas in Maine, Minnesota, Montana, National Forest and BLM land Northwest Territories south across the Washington and likely Idaho that management plans to conserve lynx is United States border and east to the support resident, breeding lynx still the strongest mechanism needed to Maritime Provinces and the Island of populations, the loss of which would ensure lynx and lynx habitat are Newfoundland. Of the entire North result in a significant gap in the range conserved on National Forest and BLM American range of the lynx, only a small of lynx. Therefore, we once again lands for the long term (see Factor D). portion extends into the contiguous conclude the listable entity is the Issue 7: Several commenters United States. Individually, the contiguous United States DPS of the suggested that habitat features (such as Northeast, Great Lakes, Southern Rocky lynx, consisting of the Northeast, Great snow depth, forest composition, prey Mountains, and Northern Rocky Lakes, Southern Rocky Mountains, and abundance, elevation, connectivity with Mountains/Cascades account for an Northern Rocky Mountains/Cascades. lynx populations in Canada) that vary extremely small fraction of the entire Issue 5: Several commenters raised among regions and affect habitat quality range of the taxon, the loss of which concerns about threats that were beyond may not exist in peripheral areas. Other the control of Federal land management commenters suggested that would not result in a significant gap in practices, particularly in the Northeast generalizations about western lynx the range of the taxon. Within all four where much of the forested lynx habitat populations cannot be applied to the regions of the contiguous United States is primarily in private ownership. East. Other commenters made the distribution of lynx is associated Response: We recognize that lynx recommendations as to how lynx habitat with the southern extensions of the habitat occurs on non-Federal lands, should or should not be defined boreal forest, where the predominant particularly in the Northeast. We do not according to certain vegetation types or vegetation in each region is spruce and have specific information on the amount descriptions. fir types, although the individual of lynx habitat on non-Federal lands nor Response: Our understanding of lynx species of vegetation varies. As is true precise information on the type of habitat requirements is continually throughout the range of Lynx activities that occur on such lands. Non- refined with ongoing research. We have canadensis, within these boreal forests Federal landowners are under no a better understanding of the habitat in each region within the contiguous obligation to identify lynx habitat on conditions based on information from United States, the important element for their lands nor do they have to supply areas where there have been numerous lynx is forest structure that provides any information to the Service regarding records of lynx over many years and, food and cover for snowshoe hares. these lands. We solicited information especially, where resident, breeding Lynx cannot sustain breeding about non-Federal lands during the populations of lynx have existed over populations without an adequate reopened comment period. To the time. Based on the best available snowshoe hare population. extent possible, we attempted to better information, the key to the presence of Additionally, the forest must provide understand and assess the activities on lynx populations is adequate snowshoe cover for lynx dens. Such habitat non-Federal lands that could affect lynx. hare populations. Therefore, habitat conditions occur in each of the four Our analysis is described in the conditions and vegetation types that regions. As a result, we determined that ‘‘Summary of Factors Affecting the support adequate densities and none of the regions individually Species’’ section. distribution of snowshoe hares and deep constitute significantly unique or Issue 6: Several other comments noted snows are what we consider to be lynx unusual ecological settings. The only the reduced threat on Federal lands, habitat. In general, lynx and snowshoe genetic analysis of lynx populations particularly National Forest lands, hare habitats are described as moist shows that there is a high level of gene resulting from lynx habitat management boreal forest types that receive deep flow between lynx populations in plans. snow and cold winters (Bittner and Alaska, western Canada and the western Response: We agree that threats to Rongstad 1982; McCord and Cardoza contiguous United States (Schwartz et lynx as a result of a lack of Federal land 1982; Quinn and Parker 1987; Elliot- al. 2002). Genetic analysis comparing management plan guidance to conserve Fisk 1988; Agee 2000; Aubry et al. 2000; lynx populations within the contiguous lynx, as identified in the final rule, have McKelvey et al. 2000b; Ruediger et al. United States has not been done. been somewhat alleviated. As described 2000). It is well established that lynx are Finally, lynx in the different regions of in ‘‘Factor D,’’ Conservation Agreements highly mobile and are frequently found the contiguous United States clearly are the U.S. Forest Service and BLM have in marginal forest types or completely not the only surviving natural with the Service, and the biological unsuitable habitats that cannot sustain occurrence of lynx. Therefore, the opinion on National Forest and BLM lynx. The fact that individual lynx have individual regions do not fulfill the land management plans committed the been found in such areas does not mean significance criteria under our DPS U.S. Forest Service and BLM to use the that those areas can support a lynx policy and, as a result, do not constitute Lynx Conservation Assessment and population or should be considered or separate DPSs. The DPS policy allows Strategy (LCAS) in determining the managed as ‘‘lynx habitat’’ (J. Claar et us to use the international boundary effects of actions on lynx. The U.S. al., in litt. 2001). To be considered lynx with Canada to delineate a discrete DPS Forest Service further committed to habitat, an area must have the potential in the contiguous United States. As deferring any actions that both would to sustain a lynx population over a described in the final rule, lynx in the adversely affect lynx and do not involve period of time, which includes contiguous United States may be third parties until such time as the supporting the appropriate vegetation considered ecologically significant Forest Plans are amended to adequately composition and structure to support because lynx habitat in the contiguous conserve lynx. The ongoing adherence adequate snowshoe hare densities and United States is a transitional type of to the Conservation Agreements and deep snow where lynx are at a southern boreal forest rather than the programmatic biological opinion and competitive advantage. We recognize
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that the specific vegetation composition Response: In this reanalysis of the were not specifically addressed because of the boreal forest type varies among basis for our final rule, we did not use we have no information to indicate they the regions. Additionally, we recognize any information from that particular pose threats to lynx. that boreal forest types on the periphery survey, the results of which have been In considering threats to lynx, one of the boreal forest range are found in rescinded by the author because of the must consider that lynx have evolved to smaller patches and are only marginally contamination of samples. The majority adapt to an ever-changing boreal forest able to support adequate snowshoe hare of the evidence of lynx in the and require a mosaic within the boreal populations. We conclude records of contiguous United States is from forest of appropriate species lynx in these marginal areas or in other trapping records, research, and sightings composition, varying stand ages, and areas without lynx habitat are of or track surveys by qualified structure to support abundant snowshoe dispersers. Although there is no individuals. Results of positive hares and lynx denning habitat. evidence that such habitats are able to identification of lynx by DNA acquired Additionally, one must consider scale. sustain a resident lynx population, we during the National Lynx Survey (K. Lynx are highly mobile, moving long include all areas with lynx occurrences McKelvey, Rocky Mountain Research distances to find abundant prey, and use and lynx habitat, however marginal, Station, in litt. 2003) provide additional a large area on a landscape as within the range of lynx. evidence of lynx. The integrity of the demonstrated by the large size of an Issue 8: One comment suggested lynx National Lynx Survey has been average lynx home range. To historically inhabited the Black Hills of maintained because of the survey significantly impact a local lynx South Dakota as a permanent resident. method, DNA analyses, and measures population, an activity would likely Another comment suggested northern used to ensure quality and reliability. have to occur across a very large area mountain ranges in New Mexico should Issue 11: We received a number of (presumably at least the size of several be included within the range of lynx. comments suggesting that certain land home ranges), create a homogeneous Response: The scientific literature use activities, particularly timber forest that does not provide the various definitively demonstrates that lynx are management practices, adversely impact stand ages, species composition, and specialist predators of snowshoe hares lynx habitat and are incompatible with structure that are good snowshoe hare and do not successfully reproduce lynx survival. Alternatively, one and lynx habitat, or result in a barrier without an adequate diet of snowshoe comment suggested that pre-commercial that effectively precludes dispersal (see hares (Brand and Keith 1979). thinning can be compatible with Summary of Factors Affecting the Snowshoe hares are not indigenous to objectives for high-quality lynx habitat. Species section). Response: Timber harvesting can be Issue 13: One comment suggested that South Dakota (American Society of beneficial, benign, or detrimental to climate change posed a threat to Mammalogists Web site). Therefore, we lynx depending on harvest methods, southern lynx populations. conclude South Dakota naturally could spatial and temporal specifications, and Response: This comment is based on not support a lynx population. We the inherent vegetation potential of the a model that predicted that if average recognize that dispersing lynx have site. Forest practices in lynx habitat that annual snow depths decrease for a long occurred in unsuitable habitats such as result in or retain a dense understory period of time in the Northeast, in South Dakota; however, we do not provide good snowshoe hare habitat that appropriate lynx habitat would be include areas of unsuitable habitat in turn provides good foraging habitat diminished and could be completely within the range of lynx. We do not for lynx. In Maine, extensive clear eliminated if appropriate climate include New Mexico within the range of cutting over the past 25 years has conditions did not return, as the author lynx because we have no reliable resulted in a large amount of the forest theorized could happen as a result of records of native lynx occurring in New currently in a stage of regeneration that global warming (Hoving 2001). We Mexico. Lynx are not included on the is optimal for snowshoe hares and lynx. conclude the potential for long-term list of Mammals of New Mexico However, research in Maine has shown reductions in snow depth because of (American Society of Mammalogists that snowshoe hare densities are low in climate change is speculative at this Web site). We do not consider lynx forest stands that have been partially time and is not a threat to lynx within recently released into Colorado that harvested such that there is little the foreseeable future (see Factor E). strayed into New Mexico as sufficient understory to provide snowshoe hare Issue 14: One comment suggested a reason to include New Mexico within habitat. The effects of forest practices on State-sanctioned coyote snaring program the range of native lynx because there is lynx are described and analyzed under threatens the lynx population in Maine. no evidence habitat in New Mexico Factor A. Response: As addressed under Factor historically supported lynx. Issue 12: Several comments raised D, we recognize that legal trapping, Issue 9: A number of comments concerns about the impacts of various snaring, and hunting for bobcat, coyote, reported lynx sightings or lynx tracks in activities on lynx habitat. Activities wolverine, and other furbearers create a New York, New Hampshire, identified by commenters include roads potential for incidental capture or Washington, and Wyoming. and trails; agricultural and urban shooting of lynx. We acknowledge that Response: Because lynx are difficult development; off-road-vehicle and no reliable recordkeeping exists to to identify and are often confused with snowmobile use; ski resort expansion; determine how frequently such take bobcats, we must consider the majority mining; fire suppression; and grazing. occurs. Mortality of captured of these reports anecdotal. Nonetheless, Response: We address the potential individuals likely has differing impacts because of the existence of reliable lynx threats to lynx under the ‘‘Summary of on the ability of local populations to records from these States, in addition to Factors Affecting the Species’’ section. persist, depending on the size of the the presence of lynx habitat, we include As a result of our analysis, we found the local population and when the take all these States within the range of lynx. threat to lynx by some of these occurs in the population cycle. Lynx Issue 10: Some comments voiced activities, such as fire suppression, is still persist throughout their range concern that evidence of lynx in some low. We found no evidence that some despite the fact that incidental catch areas was a result of a survey that was activities, such as forest roads, pose a occurred historically, in all likelihood at subsequently found to have been threat to lynx. Some of the activities higher levels than presently occur. contaminated. suggested, such as mining and grazing, Although we are concerned about the
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mortality of lynx that are incidentally mosaic within the boreal forest of occurrence data are too incomplete to captured, we have no information to appropriate species composition, infer much beyond simple occurrence, indicate that the loss of these varying stand ages, and structure to for the purposes of this reevaluation, we individuals negatively affects the overall support abundant snowshoe hares and feel it necessary to make conclusions ability of lynx populations to persist. lynx denning habitat. Additionally, one about the condition of lynx using our professional assessment of the best Introduction to Remand Analysis must consider scale. Lynx are naturally highly mobile, moving long distances to scientific and commercial data In the final rule, we found that find abundant prey, and use a large area available. We partially base our ‘‘[c]ollectively, the Northeast, Great on a landscape; the average home range conclusions regarding whether lynx in a Lakes and Southern Rockies do not for a male lynx is 151 km2 (58 mi2) particular area are resident or dispersers constitute a significant portion of the (Aubry et al. 2000). In order to affect the on the record of reliable reports of lynx. range of the DPS.’’ The following suitability of lynx habitat and, in We discuss the reliability of records reanalysis of that finding is based on the particular, a local lynx population to the below. administrative record, information extent of putting the population at risk Historic lynx data in the contiguous obtained by the Service during the of extinction, an activity would likely United States are scarce and exist comment period opened to address the have to occur across a very large area (at primarily in the form of trapping issues on remand, and the Court’s a minimum the size of several home records. Many States did not opinion in the litigation. As discussed ranges) and (1) cumulatively result in differentiate between bobcats and lynx above, we address first whether there the conversion of lynx habitat into non- in trapping records. Therefore, long- were any areas in the range of the lynx lynx habitat, (2) result in a term lynx trapping data are not available outside of the Northern Rockies in homogeneous forest that does not for most States. Long-term trapping data which the lynx is in danger of provide the various stand ages, species have been used to understand extirpation. Our analysis of whether composition, and structure that are good population trends for various species; extirpation will occur is based on the snowshoe hare and lynx habitat, or (3) however, because trapper effort can five factors listed in section 4(a)(1) of effectively preclude dispersal. change across years, trapping returns the Act. For any such areas, we then may not accurately reflect population determine whether they constitute a Factor A. The Present or Threatened trends. Data showing few lynx trapped significant portion of the range of the Destruction, Modification, or may be the result of low pelt prices or lynx, based largely on the quantity and Curtailment of Its Habitat or Range reduced trapper effort, not necessarily a quality of the habitat in the portion of Habitat Quantity and Quality decreased population. However, despite the range in question. these difficulties, trapping data are the In assessing habitat quality for lynx, best information available on historic Summary of Factors Affecting the we examine a variety of elements, such Species lynx presence throughout much of its as primary prey (snowshoe hare) range in the contiguous United States. Section 4 of the Act and regulations abundance, forest type, forest structure, In the past, surveys designed (50 CFR part 424) promulgated to snow conditions, denning habitat, specifically for lynx were rarely implement the listing provisions of the inherent habitat patchiness, and conducted, and many reports (e.g., Act set forth the procedures for adding connectivity with larger lynx visual observations, snow tracks) of lynx species to the Federal lists. A species populations and habitat in Canada. We were collected incidental to other may be determined to be an endangered use lynx reproduction and recruitment activities. The reliability of many of or threatened species due to one or more into the population as additional these records is unknown. Trapping of the five factors described in section indicators of habitat quality. records may have errors, track 4(a)(1). These factors and their In the following discussions, we identification is extremely difficult, and application to the Canada lynx (Lynx describe available information on lynx observations may be wrong because canadensis) were discussed in the final occurrence, habitat quantity, habitat lynx look very similar to bobcat. Data rule. Highlighted below are the key quality, and other elements that frame from recent research in Maine and points raised in the final rule and the our understanding of lynx in the Montana (Hoving 2001; Squires and conclusions we made about whether contiguous United States. The Ruggiero 2001; Squires et al. 2001; certain activities or conditions threaten complexities of lynx population Squires et al. 2002; Homyack 2003; Canada lynx to the extent that those dynamics and our incomplete Maine Department of Inland Fisheries points are relevant to the three areas at understanding of the limited lynx and Wildlife 2003; G. Matula, in litt. issue in this remand. If new information occurrence data, combined with a 2003; L.S. Mills and P. Griffin, in litt. changes a statement or conclusion made naturally dynamic and transitional 2003); recent confirmed records of lynx in the final rule, this point will be made habitat, make it difficult to precisely in Minnesota (Minnesota Department in this analysis. Also discussed below is delineate the historic or current extent Natural Resources, in litt. 2003); results any new information we received about of the range of lynx in the contiguous from the National Lynx Survey (K. the five listing factors and their United States. While recognizing these McKelvey, Rocky Mountain Research application to lynx during the reopened limitations, we use our best professional Station, in litt. 2003); and mapping of comment period initiated as a result of judgement of the best scientific and lynx habitat on Federal lands (E. the remanded decision. Finally, in this commercial data available to make Johnston, U.S. Forest Service, in litt. document, we assess the magnitude of conclusions about the range of the lynx 2003; J. Whitney, Bureau of Land the threats to lynx to assist us in for the purposes of this remand. Management, in litt. 2003) provide some determining the status of the species in Important to understanding the range of the best current information for our the areas at issue. of lynx in the contiguous United States analysis. In considering threats to lynx and is the status of the lynx in any given Numerous reliable lynx records over a whether those threats are low, medium, area as a member of a resident, breeding period of years (particularly across a or high, one must consider that lynx population or as a disperser. While we cyclic population low) and reliable have evolved to adapt to an ever- recognize and agree with McKelvey et evidence of reproduction are considered changing boreal forest and require a al.’s (2000b) caution that lynx strong evidence of a resident
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population. For example, Washington types that do not support lynx (e.g., In the western United States, boreal has had numerous verified lynx records prairie, deciduous forest). With the forests are located at higher elevations since the 1800s (McKelvey et al. 2000b). exception of the Southern Rocky and are predominantly under Federal These records exist in the form of Mountain region, each of the regions ownership (U.S. Geological Survey museum specimens (78 specimens), where lynx are found in the contiguous 1998). As a consequence, in the west snow tracks, radio-collared study United States are directly connected to (Northern Rocky Mountains/Cascades animals, harvest records, remote-camera lynx populations in Canada. and Southern Rocky Mountains) lynx photographs, and DNA samples. During As described above, maps that habitat occurs primarily on a Federally- the period that lynx harvest data were accurately display the distribution of owned land base. The proportion of kept (1961–1990) the annual harvest boreal forest (and therefore lynx habitat) Federal land base decreases as one ranged from highs of 39 and 31 animals are not readily available across the progresses eastward. However, in the to lows of 0 in some years. Finally, lynx contiguous United States The only Great Lakes region most of the lynx reproduction has been and continues to attempt to portray the range of lynx records are from northeast Minnesota be documented numerous times in across the contiguous United States where the majority of the boreal forest Washington. As a result of this with some degree of precision is that of is federally-owned (Minnesota information, we conclude that McKelvey et al. (2000b). McKelvey et al. Department Natural Resources in litt. Washington has a resident lynx (2000b) overlayed lynx occurrence 2003). In the Northeast, nearly all the population. records across the contiguous United lynx habitat is privately-owned, most of Few and sporadic records, many of States with broad vegetation which is commercial forest in Maine. which correlate to timeframes when classifications and topography to Unfortunately, accurate estimates of there were cyclic population highs, and determine which vegetative cover types the amount of lynx habitat on all land no evidence of reproduction are and elevations contain most of the lynx ownerships are not available for all considered evidence of dispersers, occurrences. In the East (Northeast and regions. In most cases, private rather than resident populations. For Great Lakes), Bailey’s (1998) ecoregion landowners have not mapped lynx example, in Wisconsin only 11 verified classification was used to describe habitat on their lands, and private records exist from 1870–1961 vegetation at the broader scale and in landowners have not shared information (McKelvey et al. 2000b). There are 16 the West (Northern Rocky Mountains/ about their lands with the Service. In verified records of lynx from the early Cascades and Southern Rocky the final rule, we cited estimates of the 1960s and 1970s that correspond to the Mountains) Ku¨ chler’s (1964) amount of lynx habitat on all extreme cyclic population highs of that classification was used (McKelvey et al. period, exceeding the number known ownerships based on coarse maps of 2000b). Broad-scale vegetative mapping vegetation types provided in a biological for the previous century. Two records at a continental scale, such as Bailey from 1992 are the only verified records assessment (U.S. Forest Service and (1998) or Ku¨ chler (1964), results in in the State since the early 1970s, and Bureau of Land Management 1999). We generalized descriptions that are also correspond to the time period for a recognized that these calculations expected to have some inconsistencies cyclic population high. Lynx overestimated the amount of lynx with vegetation maps at a finer scale reproduction has never been habitat in many areas and possibly (T.B. Wigley, National Council on Air documented in Wisconsin. We conclude underestimated it in other areas, but and Stream Improvement, Inc., in litt. that Wisconsin has never had a resident they provided a perspective on the 2003). However, these broad-scale maps lynx population but rather occasional amount of lynx habitat overall and in are useful in generally delimiting and dispersers. We still consider Wisconsin the individual regions (T.B. Wigley, in describing vegetation types. McKelvey to be in the range of lynx, as discussed litt. 2003). The biological assessment in more detail below. et al. (2000b) put some outer bounds on estimates the following area of lynx The range of the lynx in the what can reasonably be delineated as habitat: Northeast—65,337 km2 (25,227 contiguous United States is broadly the range of lynx. In this analysis, we mi2); Great Lakes—96,247 km2 (37,161 delineated by the distribution of the rely on McKelvey et al. (2000b) as our mi2); Southern Rockies—26,673 km2 southern extensions of boreal forest, starting point in more precisely defining (10,298 mi2); Northern Rockies— which occur in: (1) The Northeast the range of the lynx. 138,929 km2 (53,641 mi2); Cascades— (portions of Maine, New Hampshire, In the following we summarize key 16,964 km2 (6,550 mi2) (U.S. Forest Vermont, New York); (2) the western information from the final rule, new Service and Bureau of Land Great Lakes (portions of Minnesota, information available since the final Management 1999). (These calculations Wisconsin, Michigan); (3) the Northern rule, and the best scientific information were cited in the final rule but were Rocky Mountains/Cascades (portions of provided during the recent comment presented as acres, which we have Washington, Oregon, Idaho, Montana, period to arrive at our analysis of the converted into square kilometers and northwestern Wyoming, Utah); and (4) range of the lynx. square miles for this rule.) During the the Southern Rocky Mountains The amount of boreal forest habitat in most recent public comment period we (portions of Colorado, southeastern the contiguous United States has not were provided approximate estimates of Wyoming) (Agee 2000, Aubry 2000, changed substantially in the past 100 the amount of lynx habitat currently McKelvey et al. 2000). Differences in years. In some local areas there has been mapped on U.S. Forest Service, BLM, local climate, primarily precipitation, encroachment by human development and some National Park Service lands and effects of elevation have resulted in but for the most part these habitats are (S. Gniadek, National Park Service, in boreal forest vegetation that differs in predominantly still forested. In these litt. 2003; E. Johnston, USDA Forest the western regions compared to the forests the changes primarily have been Service, in litt. 2003; J. Whitney, BLM, east (Buskirk et al. 2000b); however, the natural and human-caused in litt. 2003). This information also is spruce and fir are the predominant tree disturbance processes (fire, insect included in Table 1. These estimates for species in both the east and west. infestations, wind, ice, timber Federal lands will continue to be Within the borders of the contiguous harvesting) that alter the successional refined to reflect data obtained through United States, these regions are patterns and, sometimes dominant tree site-specific analysis, field verification, separated from each other by vegetation species, within a forest. and new information from research that
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allows a better understanding and the amount of lynx habitat on all occurrence also are included in Table 1 description of lynx habitat (E. Johnston, ownerships in the Northeast based on (Hoving 2001, Hoving, University of in litt. 2003). Finally, rough estimates of models of the probability of lynx Maine, pers. comm. 2003).
TABLE 1.—ESTIMATES OF LYNX HABITAT 1 WITHIN THE CONTIGUOUS UNITED STATES USED BY THE FISH AND WILDLIFE SERVICE IN THIS ANALYSIS
Land ownership Northeast Great Lakes Southern Rockies Northern Rockies/Cascades
Federal Lands
U.S. Forest Service 2 2,104 km 2 (813 mi 2) ...... 17,685 km 2 (6,828 30,311 km 2 (11,703 N. Rockies: 89,841 km 2 (34,688 mi 2). mi 2). mi 2) Cascades: 5,949 km 2 (2,297 mi 2). Bureau of Land Man- No BLM lands ...... No BLM lands ...... 716 km 2 (277 mi 2) .... 1,236 km 2 (477 mi 2). agement 3. National Park Serv- No NPS lands ...... Not available ...... Not available ...... Yellowstone: 2,784 km 2 (1,075 ice 4. mi 2) Glacier: 1,103 km 2 (426 mi 2).
Non-Federal Lands
Not available ...... Not available ...... Not available ...... Not available.
All Ownerships Combined
Hoving, pers. comm. 13,511 km 2 (5,217 mi 2) ...... Not included in study Not included in study Not included in study. 2003 5. Maine: 12,300 km 2 (4,700 mi 2) New Hampshire: 1,000 km 2 (400 mi 2) Vermont: 12 km 2 (4 mi 2) New York: 190 km 2 (73 mi 2) 1 Each of these estimates is qualified (e.g., Yellowstone is likely an overestimate because vegetation mapping has not been refined; therefore, this estimate broadly includes all areas of potential habitat). 2 E. Johnston (in litt. 2003). 3 BLM acreages provided by management unit (J. Whitney, BLM, in litt. 2003); therefore, Northern Rocky Mountains and Cascades are not in- dividually identified. BLM acreages not available for Wyoming. 4 Not all NPS units provided lynx habitat estimates. Acreages from Murphy et al. (2003) and S. Gniadek (in litt. 2003). 5 Fifty percent or greater probability of lynx occurrence in this area based on Hoving (2001).
Northeast described ‘‘Mixed Forest-Coniferous there is little lynx habitat in the Northeastern United States lynx and Forest-Tundra’’ cover type. This habitat northeastern United States outside of snowshoe hare habitat and populations type occurs along the northern Maine (Hoving 2001). In the United are directly contiguous with those of Appalachian Mountain range from States, the amount of potential lynx Canada, south of the St. Lawrence River, southeastern Quebec, western New habitat where there is a 50 percent or in southeastern Quebec and western Brunswick, and western Maine, south greater probability of lynx occurrence in 2 New Brunswick. Movement of lynx through northern New Hampshire. This this region is roughly 13,501 km (5,177 2 across the St. Lawrence River between habitat type becomes naturally mi ) (Table 1) (C. Hoving, University of populations in northern Quebec and fragmented and begins to diminish to Maine, pers. comm. 2003). Maine has 2 2 those south of the St. Lawrence is the south and west, with a disjunct approximately 12,300 km (4,700 mi ) believed to occur infrequently (R. segment running north-south through of potential lynx habitat, New 2 2 Lafond, Quebec Ministry of the Vermont, and a patch of habitat in the Hampshire has 1,000 km (400 mi ), 2 2 Environment, pers. comm. 1999). Adirondacks of northern New York Vermont has 11 km (4 mi ), and New 2 2 However, a substantial lynx population (McKelvey et al. 2000b). York has 190 km (73 mi ) (C. Hoving, resides south of the St. Lawrence River Hoving (2001) modeled lynx habitat pers. comm. 2003). on Quebec’s Gaspe´ Peninsula, where across all ownerships for the Northeast Maine-Lynx have been documented in lynx densities are estimated to be 10 region, including Canada south of the Maine since the 1800s, although lynx per 100 km2 (26 per 100 mi2) St. Lawrence River. Hoving (2001) accounts are irregular and anecdotal for during periods of high hare populations found that lynx are most likely to occur some time periods (Hoving 2001; R. (C. Fortin, unpubl. data, in Ray et al. in areas with deep snow (greater than Joseph, U.S. Fish and Wildlife Service, 2002). Lynx probably encounter little 268 cm (105 in) mean annual snowfall) in litt. 1999). Lynx occurrences have difficulty moving between southeastern and relatively little deciduous cover. been fairly consistent since the 1950s Quebec and northern Maine because Based on this model, potential lynx (Hoving 2001; R. Joseph, in litt. 1999). habitat is continuous. habitat is concentrated on Quebec’s Historical accounts provide evidence of Based on an analysis of cover types Gaspe´ Peninsula and northwestern New the reproduction and persistence of lynx containing most of the lynx occurrences, Brunswick extending into northern in several northern and western McKelvey et al. (2000b) determined Maine. The majority of lynx habitat in townships (Hoving 2001; R. Joseph, in that, at the broad scale, most lynx this region is found in Canada; only litt. 1999). Since 1999, intensive lynx occurrence records in the Northeast sixteen percent of this area is in the research in northern Maine has resulted were found within the broadly United States. Based on this analysis, in 30 different lynx radio-collared, and
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17 litters with 37 kittens, documented reports exist from the 1990s (M. Amaral, York (C. Hoving, pers. comm. 2003), an in the 300-km2 (100-mi2) study area U.S. Fish and Wildlife Service, in litt. area only slightly larger than the average (Maine Department of Inland Fisheries 1999). Although there are no records of home range of a single male lynx. The and Wildlife 2003; G. Matula, in litt. lynx breeding in New Hampshire, based boreal forest in New York is protected 2003), demonstrating the current on regular harvest reports from the past as Adirondack State Park and much of existence of a resident population. and connectivity with habitats in Maine the forest is mature without the Lynx habitat in Maine is considered where resident lynx occur, we believe understory necessary to support a to be of high quality at this time. The that a small resident lynx population snowshoe hare population capable of quantity of boreal forest that can historically occurred in New Hampshire sustaining lynx (G. Batcheller, New potentially support lynx in Maine has but no longer exists. However, York State Division of Fish, Wildlife not changed substantially in the past dispersers likely still occur in New and Marine Resources, pers. comm. 100 years (G. Matula, in litt. 2003). Hampshire because of its connectivity 2003). It appears habitat quality is Extensive clear cutting to salvage with Maine; lynx have recently been marginal. We conclude that a resident diseased trees in the 1970s and 1980s documented in Maine near the New population may have existed in New resulted in large amounts of the forest Hampshire border (M. McCollough, York prior to 1900; however, records of presently in a stage of regeneration that pers. comm. 2003). lynx since 1900 are of dispersers. is optimal for snowshoe hares (Hoving Vermont—Little boreal forest exists Northeast Summary—As it did 2001; Homyack 2003, Krohn 2003; G. currently or historically in Vermont and historically, the boreal forest of the Matula, in litt. 2003). Snowshoe hare what habitat exists is isolated from that Northeast continues to exist primarily in densities are high (1.6–2.4 hares per in New Hampshire (W. Laroche, Maine where habitat is currently hectare (ha) (4.0–5.9 per acre (ac))) in Vermont Department of Fish and optimal and a resident, breeding these regenerating stands (Homyack Wildlife, in litt. 2003). Only four population of lynx continues to exist. 2003; G. Matula, in litt. 2003). As a verified records of lynx exist for Maine’s lynx population is currently result, lynx numbers have increased in Vermont (McKelvey et al. 2000b; W. much larger than we knew at the time response to improved habitat conditions Laroche, in litt. 2003). There is no of the final rule in 2000 and habitat is and increased snowshoe hare evidence lynx reproduction ever directly connected to substantive lynx populations. In a 300-km2 (100-mi2) occurred in Vermont. In the Green populations and habitat in southeastern study area in northern Maine, the Mountain National Forest, all potential Quebec and New Brunswick. The preliminary estimate of lynx density in lynx habitat occurs in small patches that potential exists for lynx to occur in New fall 2002 was 4.4 lynx per 100 km2 (11.4 are not large enough to support a lynx; Hampshire because of its direct per 100 mi2) (G. Matula, in litt. 2003). bobcats are present throughout these connectivity with Maine and we Based on preliminary analyses, lynx areas (P. Brewster, Green Mountain and presume they currently occur there. home ranges in this study area average Finger Lakes National Forests, in litt. Lynx in Vermont have always existed 52 km2 (20 mi2) for females and 70 km2 2000), evidence that these areas are not solely as dispersers. Lynx occurring in (27 mi2) for males (G. Matula, in litt. suitable for lynx. Hoving’s (2001) model New York since 1900 have been 2003); these relatively small home predicts only approximately 11 km2 (4 dispersers. ranges are likely an indication of high mi2) of potential lynx habitat in Great Lakes habitat quality with abundant snowshoe Vermont (C. Hoving, pers. comm. 2003). hares. Coincidentally, these optimal Based upon the limited amount and At the time of the final listing rule for habitat conditions occur during a period dispersed nature of suitable habitat, we lynx, the coarse-scale vegetation when hares and lynx should be at a conclude lynx have occurred in description, ‘‘mixed deciduous- cyclic high, although evidence of hare Vermont as dispersers that have never coniferous forest’’ was used to population cycles are less clear in this established resident populations. It is characterize potential lynx habitat in the region. Maine’s lynx numbers are still possible for lynx to disperse to Great Lakes Region because it expected to fluctuate in concert with Vermont. encompassed 88 percent of lynx hare population fluctuations. New York—An ‘‘island’’ of boreal occurrence records in this region New Hampshire—Although habitat in forest exists both historically and (McKelvey et al. 2000b). As mapped New Hampshire is contiguous with that currently in the Adirondack Mountains (Bailey 1998, McKelvey et al. 2000b), in Maine, the amount of current or of New York. A resident lynx the mixed deciduous-coniferous forest historical lynx habitat in New population reportedly occurred in the covers an extensive area in the western Hampshire is much less than in Maine. northern region of New York, Great Lakes region, primarily in Recent modeling predicted particularly in the Adirondack northeastern Minnesota, northern approximately 1,000 km2 (400 mi2) Mountains, but it was considered Wisconsin, and the western portion of (Hoving 2001; C. Hoving, pers. comm. extirpated by 1900 (Brocke 1982, Michigan’s upper peninsula, giving the 2003). Most of the lynx records are from McKelvey et al. 2000b). However, there appearance of a large expanse of harvest that occurred in the 1930s, are 23 verified lynx occurrences since continuous boreal forest and creating ranging from 1 to 20 per year (Brocke et 1900, primarily from the Adirondack the expectation of resident lynx al. 1993, McKelvey et al. 2000b). Mountains (McKelvey et al. 2000b). The populations throughout this large area. Between 1940 and 1964, lynx harvests most recent verified record was from However, this broad vegetation were lower, ranging from 0 to 3 lynx 1973 (McKelvey et al. 2000b), which description encompasses large areas that trapped per year. For 11 of these 24 correlates to an extreme cyclic are not lynx habitat, particularly in years, the harvest was zero (McKelvey et population high. Habitat and prey Wisconsin (Wisconsin Department al. 2000b). The trapping season was conditions were deemed suitable for a Natural Resources, in litt. 2003). As can closed in 1964 in response to apparent lynx reintroduction in 1989–1991 be seen in maps of Early Settlement declines in lynx abundance reflected in (Brocke 1982). The reintroduction was Vegetation, historically spruce and fir harvest returns (Siegler 1971; Silver unsuccessful in establishing a (the predominant type of trees in the 1974; Litvaitis et al. 1991). Since the population. Hoving’s 2001 model boreal forest) were most abundant in 1960s, reports of lynx in New predicted approximately 190 km2 (73 northeastern Minnesota, which is Hampshire have been rare; only two mi2) of potential lynx habitat in New contiguous with boreal forest in Ontario,
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Canada, whereas in Michigan and apparent in the data, with highs in the artificially splitting the lynx range in especially Wisconsin, spruce and fir lynx cycle in 1940, 1952, 1962, and this area into two pieces of a whole that were limited to scattered patches (Great 1973 (Henderson 1978; McKelvey et al. exists primarily in adjacent Ontario, Lakes Ecological Assessment no date, 2000b). During a 47-year period (1930– highlighting a phenomenon that occurs Mladenoff no date, Wisconsin 1976), the Minnesota lynx harvest was with differing magnitude all along the Department Natural Resources, in litt. substantial, ranging from 0 to 400 per international border where lynx habitat 2003). Therefore, within the Great Lakes year (Henderson 1978). These harvest occurs on both sides of the border. It region, potential lynx habitat has always returns for Minnesota are believed to be appears the Ontario lynx population been most abundant in northeastern driven by immigration from Canada sometimes expands and occupies Minnesota. (Henderson 1978; Mech 1980; McKelvey northeastern Minnesota and sometimes An accurate estimate of the amount of et al. 2000b; M. DonCarlos, Minnesota it contracts and lynx recede from potential lynx habitat for all ownerships Department of Natural Resources in litt. Minnesota. As a result, northeastern in the Great Lakes region was not 1994). Outside of harvest data, 76 Minnesota may not always support available to us. The majority of potential additional verified lynx records exist for lynx. However, we conclude that lynx habitat in this region is in Minnesota before 2001 (McKelvey et al. northeastern Minnesota often supports a northeastern Minnesota under Federal 2000b). resident lynx population because there ownership, although we cannot say Reproduction and maintenance of is ample boreal forest habitat directly precisely how much because we do not home ranges by lynx were documented connected with that in Ontario, there is have acreages of lynx habitat on non- in the early 1970s (Mech 1973, 1980), a high number of historic lynx records, Federal lands. In the Great Lakes region, potential evidence of the presence of a evidence of lynx reproduction and as currently mapped there are resident population. But this may have cyclically abundant snowshoe hares. approximately 18,000 km 2 (7,000 mi 2) been an artifact of the early 1970s being Wisconsin—The mapping of of potential lynx habitat on National a period of an extreme peak in the Wisconsin shows the discrepancy that Forest lands (Table 1). This estimate population cycle in Canada. Records of can occur between broad-scale includes National Forest lands in lynx in Minnesota have been rare in the vegetation mapping and more precise Minnesota and Michigan’s Upper past 2 decades; there were only 3 vegetation maps. Maps of the early Peninsula. There is no potential lynx verified records of lynx in Minnesota in vegetation of Wisconsin delineate only habitat on National Forest lands in the 1990s (M. DonCarlos, in litt. 1994). small patches of boreal forest primarily Wisconsin (Weiland 2002). Individuals knowledgeable about lynx along the shore of Lake Superior in Minnesota—As was true historically, and snowshoe hares suggest that fires extreme northern Wisconsin (Mladenoff northeastern Minnesota continues to and logging created early successional no date; Wisconsin Department Natural support a substantial amount of forests that were conducive to abundant Resources, in litt. 2003; S. Hassett, in transitional boreal forest (roughly hare populations in northern Minnesota litt. 2003) compared to one third of the estimated at 12,500 km 2 (4,800 mi 2)) in in the first half of the 20th century (S. State being mapped as mixed a more evenly distributed pattern rather Loch, in litt. 2003), resulting in the high deciduous-coniferous forest as broadly than in small patches (Great Lakes numbers of lynx recorded during that classified by Bailey (1998) (McKelvey et Ecological Assessment no date, time. In contrast, snowshoe hare al. 2000b). Therefore, it is clear that Wisconsin Department Natural numbers were exceptionally low in the historically in Wisconsin there actually Resources, in litt. 2003). In Minnesota, 1980s through the 1990s (S. Loch, in litt. was very little boreal forest and, as a the deepest snows occur in the 2003), likely explaining the scarcity of result, little potential lynx habitat northeast corner of the State (Minnesota lynx. Based on surveys in northern (Mladenoff no date; S. Hassett, in litt. Department Natural Resources in litt. Minnesota, snowshoe hare numbers are 2003; Wisconsin Department Natural 1998). Most of northeastern Minnesota currently high (J. Erb, Minnesota Resources, in litt. 2003). Where is under Federal ownership, primarily Department of Natural Resources, in litt. appropriate lynx forest types do occur in the Superior National Forest 2003). in Wisconsin, historic snow conditions (Minnesota Department Natural In the past 3 years there have been 62 have not been optimal for lynx (Weiland Resources, in litt. 2003). verified reports of lynx in northeastern 2002). This habitat is more appropriate Minnesota provides a good example Minnesota, 6 of which provided for bobcats, which are common and of the problems in assessing the status evidence of reproduction (usually visual well-distributed in northern Wisconsin of lynx because of the complexity of observations of kittens accompanying an (S. Hassett, in litt. 2003). As a result, no lynx cycles and the difficulty in adult) (Minnesota Department of lynx habitat was mapped on U.S. Forest interpreting historical lynx occurrence Natural Resources, in litt. 2003; S. Loch, Service lands in Wisconsin because of a data. As a result, scientists have debated in litt. 2003); it is assumed some of lack of appropriate habitat and snow whether lynx in Minnesota are members these reports are of the same animal or depth to support lynx (Weiland 2002). of a long-term resident population or family group so the actual number of Verified reports of lynx in Wisconsin dispersers from Canada that do not animals is likely lower. This dramatic are limited (29 records from 1870 to establish a resident population in the increase in reports corresponds with a 1992) (McKelvey et al. 2000b); 16 of State (McKelvey et al. 2000b; R. Sando, cyclic population high directly adjacent these reports are associated with Minnesota Department of Natural in Ontario (S. Loch, in litt. 2003). unprecedented cyclic highs that Resources, in litt. 1998). Minnesota has Research has been initiated that will occurred throughout Canada in the early a substantial number of historic lynx help determine whether these animals 1960s and 1970s. In 1992, two lynx reports, primarily trapping records are members of an established resident mortalities were reported (Wydeven (McKelvey et al. 2000b), as expected population in Minnesota or if these 1993; C. Pils, in litt. 1994). No sign of because of the direct connectivity of the animals fail to persist when the cyclic lynx has been found during extensive boreal forest in northeastern Minnesota population high recedes (University of snow track surveys in potential lynx with that of Ontario, Canada, where Minnesota, in litt. 2002). habitat in northern Wisconsin over the lynx occur. Harvest and bounty records Lynx presence in Minnesota is an past 4 years (S. Hassett, in litt. 2003). for Minnesota are available since 1930. artifact of the international border There are no records of lynx breeding in Approximate 10-year cycles are between Canada and the United States Wisconsin.
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Because Wisconsin always has had a Great Lakes Summary—We conclude current mapping there are nearly 96,000 limited amount of boreal forest habitat, that northeastern Minnesota has km2 (37,000 mi2) of lynx habitat just on marginal snow conditions for lynx, and historically supported and currently National Forest lands in the Northern no evidence of reproduction, we concur supports a resident lynx population, Rocky Mountains (Table 1). The with Thiel (1987) that, historically, based on the number of lynx records, relatively small size and close proximity Wisconsin has not supported a evidence of reproduction, and the of the lynx habitat in the Cascades to permanent, self-sustaining lynx presence of boreal forest contiguous that in the Northern Rocky Mountains population; rather, lynx presence is with occupied habitat in Ontario. further supports considering both areas associated with cyclic lynx population Currently, there are many more lynx in as one. fluctuations in Canada. We conclude northeastern Minnesota than we knew The majority of lands within the that any lynx found in Wisconsin are of at the time of the final rule in 2000. mountain ranges in this region are dispersers, not residents. We conclude records of lynx in under Federal ownership, Michigan—Michigan’s Upper Wisconsin and Michigan constitute predominantly as National Forest lands. Peninsula supports boreal forest, and dispersing animals, rather than As a result, within this region a large lynx habitat has been mapped on U.S. individuals from resident populations, amount of lynx habitat is found on Forest Service lands in the Upper based on the lack of evidence of Federal lands; as currently mapped, 2 Peninsula (Great Lakes Ecological reproduction, lack of connectivity with there are approximately 89,841 km 2 Assessment no date; J. Trick, U.S. Fish suitable habitat, and limited amount of (34,688 mi ) of lynx habitat on National and Wildlife Service, pers. comm. habitat. Forest land in the Northern Rockies and 5,949 km2 (2,297 mi2) of lynx habitat on 2003). Beyer et al. (2001) suggested Northern Rocky Mountains/Cascades habitat in the Upper Peninsula is National Forest lands in the Cascades; In this region, the majority of lynx 2 2 limited. Additionally, Lake Superior approximately 1,300 km (490 mi ) on occurrences are associated with the 2 nearly isolates the Upper Peninsula BLM lands; approximately 2,900 km ‘‘Rocky Mountain Conifer Forest’’ in the 2 from source lynx populations in (1,100 mi ) in Yellowstone National Rocky Mountains of Montana, Idaho, 2 Canada, limiting the number of animals Park; and approximately 1,100 km (430 eastern Washington, and Utah, and the 2 available to successfully establish a mi ) in Glacier National Park (Table 1). Cascade Mountains in Washington and population. The majority of occurrences Estimates of the quantity of lynx habitat Oregon. The boreal forest of northern were not available for all National Park are on the eastern part of the Upper Washington, northern Montana, and Peninsula where the largest patch of Service units in this region. northern Idaho is directly contiguous Washington—Washington has a long boreal forest historically occurs (Great with that in adjacent British Columbia record of verified lynx occurrences over Lakes Ecological Assessment no date) and Alberta, Canada. In this the past century. Resident lynx and which is the shortest distance (lynx mountainous area, lynx habitat occurs at populations were historically found in can cross the St. Mary’s River) from lynx higher elevations and, therefore, is the northeast and north-central regions populations in Ontario, Canada. Beyer naturally fragmented by topography into and along the east slope of the Cascade et al. (2001) documented 39 verified island-like patches (McKelvey et al. Mountains (McKelvey et al. 2000b, records of lynx from Michigan’s Upper 2000b). Lynx cross intervening Stinson 2001). There are a few historic Peninsula between 1940 and 1997. landscapes, made up of shrub-steppe, records of lynx in the southern part of Twenty-seven of these records correlate grassland, low-elevation forested or the Cascades in Washington near Mt. with an extreme cyclic high in Canada unforested valleys, and in some cases, Adams (Stinson 2001). Trapping data in the early 1960s (Beyer et al. 2001). desert, to reach these habitat ‘‘islands.’’ kept since 1961 reflect cyclic patterns McKelvey et al. (2000b) found 44 We combine the Northern Rocky (McKelvey et al. 2000b). The largest verified records Statewide from the mid Mountains and Cascades together for harvests were taken in 1969–1970 (31 1800s until 1983 (Harger 1965; our analysis because the Cascades and lynx) and 1976–1977 (39 lynx) McKelvey et al. 2000b). The Lower Northern Rocky Mountains regions are (Washington Department of Wildlife Peninsula naturally had very little only separated by the Okanogan River 1993). Results of snow track surveys, boreal habitat (Great Lakes Ecological Valley in northern Washington and remote cameras, and DNA surveys show Assessment no date) and was even more because of similar conditions in both that lynx continue to occupy north- isolated from source lynx populations in regions. Additionally, the Cascades central and northeast Washington (Base Canada by Lakes Huron and Michigan. alone supports the smallest amount of and Zender 2001; Stinson 2001; Aubry Six records exist for Michigan’s lower lynx habitat in the contiguous United et al. 2002; B. Maletzke, Okanagon peninsula, all from 1917 or earlier States. Approximately 99 percent of the National Forest, in litt. 2003; K. (Harger 1965; McKelvey et al. 2000b). lynx habitat in the Cascades was McKelvey, in litt. 2003). Recent records There is no evidence of lynx estimated to occur on National Forest of lynx reproduction also exist for reproduction in Michigan (Beyer et al. lands (U.S. Forest Service and Bureau of Washington (Stinson 2001; B. Maletzke, 2001). Beyer et al. (2001) concluded a Land Management 1999); based on in litt. 2003). We conclude resident lynx resident lynx population does not occur current mapping there are nearly 6,000 populations continue to exist in in the Upper Peninsula and that km2 (2,300 mi2) of lynx habitat on Washington. dispersers occur only occasionally. National Forest lands in the Cascades Oregon—There is no evidence that a We include Michigan’s Upper (Table 1). By contrast, the Northern resident lynx population ever occurred Peninsula within the range of lynx Rocky Mountains alone support the in Oregon (Verts and Carraway 1998; K. because it supports some boreal forest largest amount of lynx habitat in the McKelvey and K. Aubry, Rocky and periodically lynx have been present contiguous United States. Mountain Research Station, in litt. but we conclude that limited number of Approximately 67 percent of the lynx 2001). Only 12 verified records of lynx lynx occurrences did not constitute a habitat in the Northern Rocky exist for Oregon for the past century resident population but were dispersers. Mountains was estimated to occur on (Verts and Carraway 1998, McKelvey et We do not include Michigan’s Lower National Forest lands (U.S. Forest al. 2000b). The majority of these records Peninsula because the few historic Service and Bureau of Land are from marginal or non-lynx habitats reports of lynx were in non-lynx habitat. Management 1999), and based on and correlate with cyclic highs in
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northern lynx populations (Verts and led Montana Department of Fish, Nearly all the reliable lynx reports are Carraway 1998; K. McKelvey and K. Wildlife, and Parks to conclude that the from the Uinta Mountain Range along Aubry, Rocky Mountain Research State’s lynx population is distributed the Wyoming border (McKay 1991). Station, in litt. 2001). We do not throughout what it determined to be Four of the records correlate to the consider compilations of anecdotal ‘‘predicted lynx habitat’’ (P. Graham, cyclic highs of the 1960s and 1970s. reports of lynx in Oregon reliable for the Montana Fish, Wildlife and Parks, in Recent DNA results documented the reasons described by McKelvey and litt. 1998). Snow track surveys have presence of a lynx in Utah (McKelvey in Aubry (Rocky Mountain Research documented lynx tracks throughout the litt. 2003). There is no evidence of lynx Station, in litt. 2001). Habitats in Oregon range in western Montana (P. Graham, reproduction in Utah. We conclude that that are potentially suitable for lynx are in litt. 1998). Reproduction is lynx that occur in Utah are dispersers naturally isolated from occupied documented; 14 dens were located rather than residents, because most of habitats in Washington and Idaho. between 1999 and 2001 in a study area the few existing records correspond to There are no records of lynx in northwestern Montana (Brainerd cyclic population highs, there is no reproduction in Oregon. Based on the 1985, Squires and Ruggiero 2001). In evidence of reproduction, and boreal limited verified records of lynx, lack of some mountain ranges in southwest forest habitat in Utah is remote and far evidence of lynx reproduction, Montana, lynx are present but in from source lynx populations. frequency of occurrences in atypical apparently low numbers, based on Northern Rocky Mountains/Cascades habitat, and the correlations of such recent surveys (Gehman and Robinson Summary—In summary, we conclude occurrences with cyclic highs, we 2000, Squires et al. 2002). We conclude that the Northern Rocky Mountains/ believe that lynx occur in Oregon as that a resident population of lynx is Cascades Region continues to support dispersers that have never maintained distributed throughout suitable habitat resident lynx populations in north- resident populations. in the northern and central mountain central and northeastern Washington, Idaho—According to Rust (1946), ranges in western Montana, whereas in western Montana and likely northern lynx were not abundant but were the mountains in southwestern Idaho. We conclude that lynx have distributed throughout northern Idaho Montana, habitat naturally becomes always occurred as dispersers in Oregon in the early 1940s, occurring in 8 of the more marginal (more patchy and drier and Utah. In northern Wyoming it 10 northern and north-central counties. forest types) and supports dispersers appears habitat is less suitable to McKelvey et al. (2000b) located a more often than resident populations. support resident populations and, number of lynx specimen records from Wyoming—Most historical and recent therefore, we conclude animals in this Idaho collected during the early 1900s. records of lynx in Wyoming are from the area are most likely dispersers. Between 1960 and 1991, 35 verified northwestern mountain ranges (Reeve et Southern Rocky Mountains records exist for Idaho, with 13 of these al. 1986; McKelvey et al. 2000b; B. from 1982 to 1991 (McKelvey et al. Wichers, Wyoming Game and Fish, in This area represents the extreme 2000b). Lynx reports in Idaho have been litt. 2003). McKelvey et al. (2000b) southern edge of the range of the lynx. few in the past 20 years. The Idaho found only 30 verified records The southern boreal forest of Colorado Conservation Data Center (2003) has Statewide since 1856. Lynx reports from and southeastern Wyoming is isolated four reports since 2000, and a lynx was Yellowstone National Park have always from boreal forest in Utah and confirmed by DNA evidence on the been rare; since 2001, lynx survey northwestern Wyoming by the Green Boise National Forest (K. McKelvey, in efforts in the Park have detected one River Valley and the Wyoming basin litt. 2003). Because past records of lynx lynx (Murphy et al. 2003). In west- (Findley and Anderson 1956 in in northern and north-central Idaho are central Wyoming, a female lynx with McKelvey et al. 2000b). These habitats common and boreal forest in Idaho is kittens was documented in 1998 reduce opportunities for emigration contiguous with boreal forest in (Squires and Laurion 2000). However, from the Northern Rocky Mountains/ Washington, Montana, and British the female died of starvation and it is Cascades Region and Canada, and may Columbia, Canada, where resident lynx presumed the kittens also died, perhaps isolate lynx in the Southern Rocky populations are known to exist, we indicating inadequate habitat and prey Mountains in Colorado and conclude that lynx continue to be base (Squires et al. 2001). A male lynx southeastern Wyoming (Halfpenny present in northern and north-central was radio-tracked moving long 1982; Koehler and Aubry 1994). Idaho, which have the capacity to distances from its home range in west- However, the potential still exists for support a resident population. central Wyoming and into Yellowstone lynx to immigrate to the southern Rocky Montana—In Montana, numerous National Park as recently as 2001 Mountains, particularly during extreme historic and current lynx records exist (Squires et al. 2001). It is possible, based cyclic population highs. throughout the Rocky Mountain Conifer on recent evidence of reproduction, that As in the Northern Rocky Mountains/ Forest in the western part of the State in the past a resident lynx population Cascades region, lynx habitat in the (McKelvey et al. 2000b; P. Graham, occurred in northwestern Wyoming. Southern Rocky Mountain region occurs Montana Department of Fish, Wildlife, However, few lynx have been found at high elevations and, therefore, is and Parks, in litt. 1998). Montana’s during several recent surveys. We naturally fragmented by topography and harvest records since the 1950s reflect believe this is because the habitat is drier south- and west-facing slopes into cyclic lynx populations (McKelvey et al. naturally marginal (more patchy and island-like patches rather than 2000b). Since Montana started drier forest types) and less capable of expansive, contiguous blocks (Ruediger accurately recording lynx harvest in supporting snowshoe hares (B. Wichers, et al. 2000). Accurate estimates of the 1977, Montana’s largest lynx harvests in litt. 2003), and is farther from source amount of lynx habitat on all land occurred in both 1979 and 1984 when populations. Therefore, we believe lynx ownerships in the Southern Rocky 62 lynx were taken each season currently in Wyoming are dispersers Mountain region are not available. The (McKelvey et al. 2000b; B. Giddings, and that the habitat may not be able to only estimate of lynx habitat on all Montana Department of Fish, Wildlife, support resident populations. ownerships was based on coarse maps and Parks, in litt. 1994). Harvest Utah—There are only 10 verified of vegetation types that contained the records, winter track surveys conducted records of lynx in Utah since 1916 majority of lynx occurrences; based on since 1990/1991, and trapper logbooks, (McKay 1991; McKelvey et al. 2000b). this type of mapping, it was roughly
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estimated that there were 27,000 km 2 represent resident populations rather records were of periodic dispersers. We (10,300 mi 2 ) of potential lynx habitat than solely dispersing animals that conclude that if a resident lynx across all ownerships in this region emigrated from the Northern Rocky population historically occurred in the (U.S. Forest Service and Bureau of Land Mountains/Cascades or Canada that Southern Rocky Mountains, then this Management 1999). All of this habitat is were unable to sustain persistent native population has been lost. We found in the mountains, which are populations, we believe a viable native surmise the primary cause for the loss primarily under Federal ownership resident lynx population no longer of this population was its natural (U.S. Geological Survey 1998). In the exists in Colorado. We believe the most isolation from potential source Southern Rocky Mountains region, as likely cause for the loss of resident lynx populations. Although habitats in the currently mapped there are populations in Colorado was a natural Southern Rockies are far from source approximately 30,000 km 2 (12,000 mi 2 ) process because lynx in this region are populations and more isolated, it is still of lynx habitat on U.S. Forest Service isolated from source lynx populations possible that dispersers could arrive in lands and approximately 700 km 2 (280 and habitats. Immigration appears the Southern Rocky Mountains during mi 2 ) on BLM lands (Table 1) (E. necessary to augment and maintain extreme highs in the population cycle. Johnston, in litt. 2003; J. Whitney, in local lynx populations, especially in It remains to be seen if the State of litt. 2003). transitional habitats at the southern Colorado’s reintroduction program will Colorado—The montane and margins of lynx range. The distance and reestablish a resident lynx population. isolation of this region from source subalpine forest ecosystems in Colorado Habitat-Related Threats Analysis are naturally highly fragmented populations outside of the Southern Rocky Mountains severely reduced, if The final rule discussed the factors (Thompson 1994), which we believe has affecting lynx habitat, which included always limited the potential for lynx. not entirely precluded, the immigration that was likely necessary for the lynx human alteration of the distribution and Most historic records are distributed abundance, species composition, among the northern and central population of this region to sustain itself. If these historic records were of successional stages, and connectivity of mountain ranges in Colorado (McKelvey forests, and the resulting changes in the et al. 2000, Meaney 2002). There is a dispersers that arrived when there were extremely high population cycles, it forest’s capacity to sustain lynx great deal of inconsistency among would be inappropriate to conclude populations. The final rule noted that historic lynx reports for Colorado these populations were extirpated two important human influences on (Meaney 2002); as a result, it is difficult because dispersers can continue to snowshoe hare habitat are timber to interpret historic records and we arrive in these areas in the future. harvest and fire suppression; however, question some of the numbers reported. In 1997, the Colorado Division of the final rule acknowledged that However, based on available Wildlife in cooperation with numerous information about how lynx populations information, Thompson and government and private entities began a respond to these specific impacts is Halfpenny’s (1989) description seems program to introduce lynx from Canada limited. Studies of lynx and snowshoe accurate: ‘‘it is unlikely lynx were ever and Alaska into Colorado in an effort to hare have documented lynx presence very common and have probably existed reestablish a resident lynx population. and reproduction and snowshoe hare as discontinuous, remnant In 1999 and 2000, 96 lynx were released abundance in a variety of managed populations,’’ a conclusion that is into in Colorado with the intention of landscapes (Apps 2000; Squires and supported by the State of Colorado (T. releasing an additional 186 lynx Laurion 2000; Squires and Ruggiero Blickensderfer, in litt. 2003). A total of between 2003 and 2009 (T. 2001; Stinson 2001; Homyack 2003; 22 positive lynx reports exist in State Blickensderfer, in litt. 2003). It is too Maine Department of Inland Fisheries records since the late 1800s (J. Mumma, early to determine whether this effort and Wildlife 2003; Minnesota Colorado Division of Wildlife, in litt. will be successful (T. Blickensderfer, in Department of Natural Resources, in litt. 1998); although McKelvey et al. (2000b) litt. 2003), although reproduction has 2003; G. Matula, in litt. 2003; Mills and considered only 17 of these records been recently documented (T. Griffin, in litt. 2003). ‘‘verified.’’ The last verified lynx Malmsbury, in litt., 2003). In the final rule we cited calculations specimens were taken in 1973–1974 Southeastern Wyoming—Habitat in of the extent of lynx habitat (Halfpenny et al. 1982; T. southeastern Wyoming is contiguous encompassed in certain regions, land Blickensderfer, in litt. 2003); which with that in Colorado. Records from ownerships, and land management coincided with extreme cyclic southeastern Wyoming are scarce designations. These calculations were population highs that occurred (Reeves 1986, McKelvey 2000b). The provided to us in a biological throughout the west and Canada. No most recent record is from the Laramie assessment (U.S. Forest Service and verified records of lynx exist since 1974; Range in 1963, a time when the lynx Bureau of Land Management 1999). however, extensive survey efforts have population cycle was at an Because these calculations were based resulted in periodic reports of lynx unprecedented high. The core of lynx on coarse mapping of vegetation types, tracks (Halfpenny and Miller 1981; range in this region was in Colorado. they overestimated the amount of lynx Thompson and Halfpenny 1989; Because habitat in this area is naturally habitat in many areas (particularly in Anderson 1990; Thompson and marginal, patchy, and less suitable for the Great Lakes, as described above) and Halfpenny 1991; Andrews 1992; Carney snowshoe hares (B. Wichers, in litt. possibly underestimated it in other 1993; Fitzgerald 1994; Colorado 2003) and there are extremely few areas, but they nonetheless provided a Division of Wildlife et al. 1997; T. historic records of lynx in southeastern perspective on the amount of lynx Blickensderfer, in litt. 2003). Based on Wyoming with no evidence of breeding, habitat overall and the proportions in historic lynx records, we are uncertain we conclude a resident population various ownerships and land whether Colorado supported a small never existed in southeast Wyoming and management designations. Since the resident lynx population that may have that reports of lynx were of dispersers. final rule, lynx habitat has been mapped been extirpated or whether historic Southern Rocky Mountains on Federal lands in order to conduct records were of dispersers that arrived Summary—We are uncertain whether analyses under section 7 of the Act. As during extremely high population lynx in this region historically occurred a result, estimates of the amount of lynx cycles. If these historic records did as a resident population or if historic habitat on some Federal lands are more
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accurate than in the 1999 biological Bailey et al. 1986; Koehler 1990; per ac)) (Homyack 2003). Pre- assessment (U.S. Forest Service and McKelvey et al. 2000d). Snowshoe hare commercially thinned stands averaged Bureau of Land Management 1999; S. densities tend to be highest in about half the hare density (0.98 hares Gniadek, in litt. 2003; E. Johnston, in regenerating stands with very high stem per ha (0.40 hares per ac)) as unthinned litt. 2003; J. Whitney, Bureau of Land densities (Hodges 2000a, 2000b, Griffin stands. Hare densities in mature conifer Management, in litt. 2003). Refined and Mills in press, Homyack 2003). forests with sparse understories were calculations for all ownerships were not Although large openings initially may low (0.23 hares per ha (0.09 hares per provided; therefore it was not possible not be used by snowshoe hare and lynx, ac)). Lowest hare densities were in to recalculate the information in the regeneration harvest units (e.g., clear- partial-harvest cuts (0.15 hares per ha biological assessment for the purposes cut) in appropriate habitat types (0.06 hares per ac)). In Montana, of this remanded decision. Nonetheless, eventually (in 10 years or more preliminary results of research since for the Southern Rocky Mountains and depending on the type of forest) achieve 1998 found that in winter snowshoe Northern Rocky Mountains/Cascades, early successional stages with dense hare densities were high in mature we believe the proportions of lynx understories as preferred by snowshoe forests with abundant understories and habitat provided in the biological hares (Monthey 1986; Quinn and Parker lowest in stands that had been pre- assessment are still fairly accurate and 1987; Koehler 1990; Koehler and Brittell commercially thinned or in sparsely- useful because if the same refinements 1990; Washington Department of regenerating clear-cut; in this study and mapping that occurred on National Wildlife 1993; McKelvey et al. 2000c; standard pre-commercial thinning had a Forest and BLM lands were applied to Hoving 2001; Homyack 2003). Lynx can negative effect on snowshoe hare non-Federal lands it would presumably readily move across landscapes densities in most places and times result in similar adjustments. Therefore, fragmented by commercial forestry (Mills and Griffin, in litt. 2003). in this analysis we will use the (Squires and Laurion 2000). Furthermore, preliminary findings in proportions of Federal and non-Federal The final rule suggested that large Montana substantiate what scientists lands in the Northern Rocky Mountains/ clear-cut may be detrimental to lynx have generally presumed—snowshoe Cascades and Southern Rocky because they might eliminate the mosaic hares are exposed to higher predation Mountains, and the proportions in forest ages and structure needed by and suffer higher mortality rates in either developmental or non- lynx. We have learned since publication forest stands with open understories developmental management of the final rule that, in northern Maine, (Mills and Griffin, in litt. 2003). designations for the Northern Rocky optimal forest conditions for lynx and The final rule also explained that fire Mountains/Cascades, Southern Rocky snowshoe hares have been created as a has an important role in forest ecology Mountains, and Great Lakes provided in result of large-scale clear cutting in the in some forest types in the United the biological assessment and used in 1970s and 1980s to salvage spruce and States. During the early 20th century, the final rule. fir stands damaged by insects. A large Federal and State agencies in the In all regions where the lynx range in proportion of Maine’s northern forest is contiguous United States enacted a the contiguous United States, timber currently in a stage of regeneration that policy of suppressing forest fires. The harvest and its related activities are the provides dense understories where effects of fire suppression, as well as predominant land use affecting lynx snowshoe hares are most abundant timber harvest, on lynx habitat vary habitat. The final rule stated that timber (Hoving 2001; Homyack 2003; Krohn among the geographic regions (Agee harvest and associated forest 2003; G. Matula, in litt. 2003). Despite 2000) and will be discussed separately management can be benign, beneficial, extensive clear cutting, the forests of below. or detrimental to lynx depending on northern Maine continue to provide a Except in the Northeast, a substantial harvest methods, spatial and temporal mosaic of forest ages and structure, such amount of lynx habitat in the specifications, and the inherent as required for lynx denning. As a contiguous United States occurs on vegetation potential of the site. Some result, Maine lynx populations are high Federal lands, primarily National timber harvest regimes can result in (see ‘‘Maine’’ discussion above). Larger Forests and BLM lands (see Table 1). reduced cover, unusable forest openings, such as created by clear-cut, Since the listing of the lynx in 2000, openings, and large monotypic stands can often more closely resemble Conservation Agreements the U.S. with sparse understories that are vegetative patterns that follow natural Forest Service and BLM have signed unfavorable for lynx and snowshoe hare disturbance events (e.g., fire, with the Service (Bureau of Land (de Vos and Matel 1952; Harger 1965; windthrow, and insect outbreaks) and Management and U.S. Fish and Wildlife Hatler 1988; Brittell et al. 1989; Koehler decrease amounts of edge favorable to Service in litt. 2000; U.S. Forest Service 1990; Hoving 2001; Homyack 2003; generalist predators (McKelvey et al. and U.S. Fish and Wildlife Service in Mills and Griffin, in litt. 2003). 2000c, Krohn 2003). We anticipate that litt. 2000), and the programmatic Mechanical thinning (pre-commercial where good snowshoe hare and lynx biological opinion on National Forest thinning) of densely stocked young habitat occurs within the contiguous and BLM land management plans (U.S. stands to promote vigorous growth of United States, regenerating stands that Fish and Wildlife Service 2000) fewer trees can reduce the stem result after large clear-cut can be committed the U.S. Forest Service and densities required to support high managed to allow regrowth of a dense BLM to use the LCAS in determining numbers of snowshoe hare (U.S. Forest understory, so that they too will provide the effects of actions on lynx (Ruediger Service et al. 1999a; Homyack 2003; good conditions for snowshoe hares and et al. 2000). The final rule explained Mills and Griffin, in litt. 2003). lynx. that the LCAS was developed to provide The final rule explained that forestry Recent research in Maine and a consistent and effective approach to practices can be beneficial when the Montana measured the effects of some conserve lynx and lynx habitat on resulting understory stem densities and timber harvest regimes on snowshoe Federal lands across its range in the structure meet the forage and cover hare populations, which has contiguous United States (Ruediger et needs of snowshoe hare (Keith and implications for lynx. In Maine in 2000– al. 2000). The U.S. Forest Service Surrendi 1971; Fox 1978; Conroy et al. 2002, snowshoe hare densities were further committed to deferring any 1979; Wolff 1980; Parker et al. 1983; highest in unthinned, 12- to 20-year old actions not involving third parties that Litvaitis et al. 1985; Monthey 1986; clear-cut (1.77 hares per ha (0.72 hares would adversely affect lynx until such
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time as the Forest Plans were amended on BLM lands (see Table 1) (E. Johnston, Ballenbacher, U.S. Forest Service, in litt. or revised to adequately conserve lynx. in litt.2003; J. Whitney, in litt. 2003). 1999; B. Ferguson, U.S. Forest Service, Adherence to the Conservation Federal lands are managed as either pers. comm. 1999), Cascades (F. Zenson, Agreements, the biological opinion, and ‘‘developmental’’ or ‘‘non- U.S. Forest Service, pers. comm. 1999), the LCAS in assessing the impacts of developmental’’ allocations. Lands in and the Southern Rocky Mountains (B. Federal actions on lynx alleviates the developmental allocations are managed Short, U.S. Forest, in litt. 1999). affects of National Forest and BLM land for multiple uses, such as recreation and On National Forest lands, with a few management plans and the activities timber harvest, some of which may exceptions for projects involving third they allow on lynx, such as timber conflict with conservation of lynx. parties (applicants), activities that may harvest or fire management, that were Lands within non-developmental affect lynx on developmental allocations identified in the final rule and the 1999 allocations are managed for the most are addressed by adherence to the LCAS biological assessment (U.S. Forest part to allow natural ecological and its conservation measures for lynx. Service and Bureau of Land processes to dominate and contain large For example, the Forest Service has Management 1999) (see Factor D). portions of wilderness or other natural curtailed its precommercial thinning on areas (U.S. Forest Service and Bureau of Forest Service land since the signing of Northern Rocky Mountains/Cascades Land Management 1999; D. Prevedal, its Conservation Agreement with the and Southern Rocky Mountains U.S. Forest Service, in litt. 1999). Service and the programmatic biological In the final rule, we recognized that Timber harvest and construction of opinion on Forest and BLM land the Northern Rocky Mountains roads or fire suppression typically do management plans, both of which abide encompass more privately-owned lynx not occur or are very limited in lands by the LCAS (see Factor D). Risks to habitat than elsewhere in the west (U.S. managed in non-developmental lynx or lynx habitat on BLM lands also Forest Service and Bureau of Land allocations. Lynx (including introduced are being addressed through adherence Management 1999). In the final rule, we lynx in Colorado) continue to be broadly to the Conservation Agreement. Most stated that almost one-third of lynx distributed throughout lynx habitat in Federal land management plans have habitat is in private ownership (U.S. the Northern Rocky Mountains/ yet to be amended to provide long-term Forest Service and Bureau of Land Cascades and Southern Rocky conservation for lynx. Timber harvest activities on non- Management 1999). Although we lacked Mountains (McKelvey et al. 2000b; T. Federal lands are guided by State or specific information when we published Blickensderfer, in litt. 2003), both inside Tribal forest practice rules whose the final rule, we recognized that large and outside of non-developmental requirements vary (e.g., Idaho portions of this habitat likely occur on allocation areas (U.S. Forest Service and Department of Lands 1996, Washington privately-owned corporate timber lands Bureau of Land Management 1999). Non-developmental allocations are Administrative Code 2001, Montana where timber harvest and thinning beneficial for lynx because they are State Forest Practices Rules 2003). occurs. Data regarding private lands is managed for the most part to allow Under Washington Forest Practices generally not as available as data natural ecological processes to Board regulations, three major non- pertaining to Federal lands; as a result, dominate. This is significant, because in Federal landowners have adopted and few data are available concerning the the Northern Rocky Mountains, 41 implemented lynx habitat management quality of lynx and snowshoe hare percent of lynx habitat is in non- plans on their lands in Washington (see habitat on private lands. However, developmental allocations; in the Factor D). preliminary results of research Cascades, 85 percent of lynx habitat is We conclude that some timber harvest conducted on privately-owned in non-developmental allocations; and activities, such as pre-commercial corporate timber lands in northwestern in the Southern Rocky Mountains, 23 thinning, may reduce the quality of Montana show that such lands provide percent is in non-developmental status snowshoe hare habitat in local areas on varying levels of snowshoe hare (U.S. Forest Service and Bureau of Land non-Federal lands in the Northern densities (abundant to low), depending Management 1999). Rocky Mountains/Cascades and on the timber harvest regime (Mills and The final rule described the amount of Southern Rocky Mountains, and thus Griffin, in litt. 2003). lynx habitat managed in developmental may negatively affect lynx or lynx The final rule identified that the allocations for multiple uses in the habitat at local scales. Alternatively, majority of lynx habitat in the west Northern Rocky Mountains/Cascades, timber harvest regimes in lynx habitat occurs on Federal lands. According to and Southern Rocky Mountains. In the that create a dense understory provide assessments in 1999, in the Northern Northern Rocky Mountains, 59 percent good snowshoe hare and lynx Rocky Mountains, 72 percent of lynx of lynx habitat is in developmental conditions. A significant proportion of habitat is on National Forest or BLM allocations, in the Cascades 15 percent, lynx habitat is managed in non- lands, 99 percent in the Cascades, and and in the Southern Rocky Mountains developmental status, which is 82 percent in the Southern Rocky 77 percent (U.S. Forest Service and beneficial for lynx. Furthermore, lynx Mountains (U.S. Forest Service and Bureau of Land Management 1999). habitat on National Forest and BLM Bureau of Land Management 1999). As Activities that may be detrimental to lands is managed to conserve lynx. As currently mapped, in the Northern lynx or lynx habitat, such as some a result, we conclude the current threats Rocky Mountains/Cascades region there timber harvest regimes and fire from timber harvest and thinning on are approximately 96,000 km2 (37,000 suppression, can occur in both non-Federal and Federal lands to mi2) of lynx habitat on National Forest developmental allocations. lynx in the Northern Rocky Mountains/ Lands and approximately 1,236 km2 Timber harvest levels on Federal land Cascades and Southern Rocky (477 mi2) on BLM lands (see ‘‘Table 1’’) in the West have declined consistently Mountains are low. (E. Johnston, in litt. 2003; J. Whitney, in and dramatically (approximately 80 The final rule explained that natural litt. 2003). In the Southern Rocky percent) over the past decade or longer fire plays a significant role in creating Mountain region there are (R. Gay, U.S. Forest Service, in litt. the mosaic of vegetation patterns, forest approximately 30,000 km2 (12,000 mi2) 1999). Timber harvest in specific lynx stand ages and structure that provide of lynx habitat on National Forest Lands forest types also has declined in the good lynx and snowshoe hare habitat in and approximately 700 km2 (280 mi2) Northern Rocky Mountains (B. the western mountain ranges of the
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United States. The final rule also Since the final rule, our supports lower populations of snowshoe explained that fire suppression in the understanding of forest conditions in hares (Fuller 1999, Homyack 2003) and Northern Rocky Mountains/Cascades Maine, which is the core of the lynx will not provide the large patches of and Southern Rocky Mountains during range in the Northeast, has improved. regenerating forest that support the the past 50 years has likely had little Historically, large-scale natural more numerous lynx populations impact on lynx, because most forests disturbances (wind, ice, and insect observed at the present time. where lynx habitat occurs have natural epidemics) and traditional forestry As explained in the final rule, in fire return intervals that are longer than practices (including some level of clear- Northeast forests fire return intervals are the period of time of human fire cutting) created the early successional very long as a result of the moist suppression or because fires that do forest stages where snowshoe hares maritime influence. Thus, fire did not occur in lynx habitat are large, high- generally are most abundant. In historically play a significant role in intensity fires that are difficult to response to insect outbreaks in the creating early successional habitats. suppress. Where fire suppression does 1970s and 1980s, extensive clear-cutting While current fire suppression may occur in lynx habitat, it can reduce the to salvage diseased trees and subsequent have localized minor effects, it is not quality of habitat by reducing the herbicide use to promote regrowth of likely affecting lynx habitat overall in amount of younger forests or by conifers created the current forest the Northeast. changing the species composition and conditions that are optimal for As recognized in the final rule, timber structure of forests. snowshoe hares and lynx (Hoving 2001; harvest and associated activities on non- Because of the many large forest fires Homyack 2003, Krohn 2003; G. Matula, Federal lands exert the most influence in the West since 2000, there is in litt. 2003). Currently, large amounts on lynx habitat in the Northeast and increased national interest in reducing of the forest are in a stage of have created the optimal conditions that currently exist for lynx and snowshoe the risk of fire by reducing fuel loads on regeneration that supports high hares in northern Maine. At this time, both Federal and non-Federal lands snowshoe hare densities (Homyack we do not know if future timber harvest (U.S. Department of Agriculture and 2003). As a result, lynx numbers also are practices will continue to provide forest U.S. Department of the Interior 2001). high (see ‘‘Maine’’ discussion, above). conditions that are capable of Such efforts can affect lynx habitat if At its peak in the late 1990s, 20 to 25 supporting snowshoe hare densities that they reduce the amount of understory percent of the Maine forest was in an can, in turn, support a resident lynx vegetation. Understory removal may early regeneration stage (Gadzik et al. 1998), which is unnaturally high and population. We conclude the threat to affect the capability of stands to support out of proportion to historic conditions lynx in the Northeast because of timber snowshoe hares. At this time, few of when only 3 to 7 percent of the forest harvest and associated activities is these fire suppression efforts have been was in this stage of regeneration (Krohn moderate, although it may have more implemented, so it is impossible to 2003). Nonetheless, this created severe impacts if a natural mosaic of analyze their effects on lynx. The LCAS exceptional snowshoe hare and lynx forest stand ages and structure that can recommends that on Federal lands fire habitat. support snowshoe hares and lynx is not be restored as an ecological process. The Passage of the Maine Forest Practices maintained. U.S. Forest Service and BLM use the Act has in 1989 limited the amount of Great Lakes LCAS in determining the effects of their clear cutting. As a result, forest actions on lynx (see Factor D). landowners have changed their harvest The final rule described habitat As in the final rule, we conclude that practices to extensive use of pre- conditions for lynx in the Great Lake past fire suppression has had limited commercial thinning and partial Region. It described the history of impact in lynx habitat in the Northern harvesting rather than clear cutting logging and forest management through Rocky Mountains/Cascades and (Gadzik et al. 1998, Homyack 2003; the 1800s and 1900s that was similar to Southern Rocky Mountains; however, it Krohn 2003). These techniques result in the history in the Northeast. may affect lynx habitat quality at some forest stands with sparse understories We know that the estimate of lynx local scales, particularly on non-Federal that support low snowshoe hare habitat provided in 1999 (U.S. Forest lands. Although increased interest in densities (Homyack 2003). If harvest Service and Bureau of Land fire suppression and reduction of heavy practices cease to provide early Management 1999) substantially fuels has the potential to affect successional forest with dense overestimated the amount of lynx snowshoe hare habitat, we conclude the understories or stand-replacing habitat in the Great Lakes because of the threat to lynx in the Northern Rocky disturbances (such as provided by large coarse-scale vegetation map on which Mountains/Cascades and Southern clear-cut) in proportions similar to the estimate for the Great Lakes was Rocky Mountains as a result of the historic conditions, habitat conditions based (see ‘‘Great Lakes’’ discussion current effects of fire suppression is for snowshoe hare and lynx will be above). By using more accurate maps we currently low. diminished. now know that the majority of lynx The quantity of lynx habitat in Maine habitat in the Great Lakes is on Federal Northeast is expected to decline as stands in late lands, primarily National Forest lands, In the Northeast, lynx habitat is regeneration created by clear cutting in contrary to the information used in the supported almost entirely on a non- the 1970s and 1980s succeed to mature final rule that incorrectly portrayed a Federal land base (private, State, or forest. Snowshoe hare populations begin high proportion of lynx habitat on non- county), predominantly commercial to decline in stands about 30 years after Federal lands (Great Lakes Ecological forest lands, as was recognized in the clear cutting when the forest canopy Assessment no date, Mladenoff no date; final rule. The final rule discussed closes, shading increases at ground Minnesota Department Natural activities that may affect lynx in the level, and the dense understory that Resources, in litt. 2003; Wisconsin Northeast Region. It described the supports high populations of snowshoe Department Natural Resources, in litt. history of logging and forest hares is greatly reduced. Over 95 2003). In the Great Lakes Region, management through the 1800s and percent of cutting that occurs now is approximately 18,000 km 2 (7,000 mi 2) 1900s and the effects on lynx habitat in partial harvesting (selective cutting, of lynx habitat are currently mapped on this region. patch cuts). This new cutting regime National Forest lands (Table 1).
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Unfortunately, an accurate estimate of lynx habitat on National Forest lands is data for Minnesota, Montana, and the amount of lynx habitat across all managed to conserve lynx. As a result, Washington, which will not be restated land ownerships in the Great Lakes is we conclude the threat to lynx in the here. still not available. Great Lakes because of timber harvest The final rule explained that Mowat A large amount of the boreal forest in and fire suppression is low. et al. (2000) suspected that over- northeastern Minnesota where lynx are trapping may deplete local lynx found is managed as the Boundary Factor B. Overutilization for populations, particularly at the southern Waters Canoe Area Wilderness (4,160 Commercial, Recreational, Scientific, or part of the lynx’s North American range, km2 (1,600 mi2)) (Superior National Education Purposes but that dispersal of lynx from healthy Forest website). Wilderness is managed The final rule explained that one of populations has led to the repopulation to let natural ecological processes the primary reasons we proposed to list of such areas. States and Tribes closed dominate, which is beneficial to lynx. lynx, based on available information at lynx trapping seasons prior to the listing The final rule recognized that timber the time, was our conclusion that the of the lynx, which, in addition to the harvest is the predominant use of the low numbers of lynx in the contiguous listing of lynx under the Act, eliminated forests where lynx habitat occurs in the United States and southern Canada were the mortality of lynx through legal lynx- Great Lakes region; the final rule also the residual effects of over-trapping targeted trapping and we have no explained that timber harvest levels on believed to have occurred in the 1970s information suggesting that illegal lynx- National Forest lands in the Great Lakes and 1980s, in response to targeted trapping occurs in the have declined by approximately 20 unprecedented high pelt prices, a contiguous United States. We continue percent over the past decade (R. Gay, concern that was widely shared (Brand to believe that precautions taken by U.S. Forest Service, in litt. 1999). As and Keith 1979; Todd 1985; Bailey et al. States and Provinces to restrict lynx described in the final rule, mixed 1986; Hatler 1988; Washington trapping since the 1980s likely have conifer/hardwood stands are often Department of Wildlife 1993). prevented and continue to prevent the replaced and maintained in pure The final rule explained the variables over-harvest of resident lynx. Most deciduous stands because of the that influence trapping records and the Canadian provinces control for potential importance of aspen as a crop tree (Agee use of such records as indicators of over-trapping by closing the lynx 2000). On managed timber lands in all historic lynx population changes. The trapping seasons during the lows in the ownerships, the maintenance of aspen final rule recognized that trapping lynx population cycle (e.g., to produce pulpwood precludes the mortality can either compensate for Environment et faune Quebec 1995). establishment of coniferous forest types, natural mortality or be in addition to However, some theorize that lynx which in turn likely diminishes natural mortality, depending on when it harvest in Canada reduces the numbers snowshoe hare habitat quality. occurs in the population cycle. The final of lynx that could potentially disperse The final rule described natural fire rule described trends in lynx pelt prices, to the contiguous United States. In the regimes and the history of fire and we will not restate them here. final rule we explained that low suppression in the Great Lakes. Fire The final rule explained that based on numbers of lynx in the contiguous suppression policies across all land information obtained after public review United States compared to Canada occur ownerships in the Great Lakes are such and comment of the proposed rule in not as a result of over-trapping, but that fire is unlikely to assume its natural 1998, we now recognize that the cyclic because the prey of lynx is limited by role in creating a mosaic of vegetation peak harvest returns of the early 1960s naturally fragmented habitat, communities and age classes across the and 1970s were unprecedented highs for topography, and climate. landscape. However, the final rule the 20th century (McKelvey et al. 2000b; As we emphasized in the final rule, established that on some Federal lands Mowat et al. 2000). Wildlife managers legal trapping, snaring, and hunting for in northeastern Minnesota, where the may have expected harvest returns bobcat, coyote, wolverine, and other region’s highest quality and quantity of during the 1980s and 1990s to be furbearers create a potential for lynx habitat is found, and where comparable to the anomalous cyclic incidental capture or shooting of lynx. numerous lynx have been documented peaks of the 1960s and 1970s. When We know that incidental capture and in the past 3 years (Minnesota harvest returns failed to be as high as shooting occurs (Wydeven 1998; M. Department of Natural Resources in litt. anticipated, managers interpreted the DonCarlos in litt. 1994; Colorado 2003), fires are allowed to burn. The lower returns to be caused by Department of Wildlife 2003; R. Naney, LCAS recommends that on Federal overtrapping when pelt prices were high U.S. Forest Service, pers. comm. 1999, lands fire be restored as an ecological (Bailey et al. 1986; Hatler 1988; Hash B. Giddings, Montana Fish, Wildlife and process. Locally, fire suppression may 1990; Washington Department of Parks, pers. comm. 2001; C. reduce the quality of lynx habitat in the Wildlife 1993). We compared the lynx McLaughlin, Maine Department of Great Lakes. harvest returns in the 1980s and early Inland Fisheries and Wildlife, pers. Since the listing of the lynx in 2000, 1990s to harvest data dating back over comm. 2001; J. Cochrane, U.S. Fish and activities that may affect lynx on a longer period of time (i.e., prior to Wildlife Service, pers. comm. 2003; M. National Forest lands are addressed by 1960) and found that lynx harvest McCollough pers. comm. 2003); no the U.S. Forest Service’s adherence to returns were not unusual nor reliable recordkeeping exists to the LCAS in alleviating the impacts of appreciably lower than those recorded determine how frequently such taking actions on lynx (see Factor D). However, prior to the 1960s. occurs. The effect on the individual at this time, most Federal land To demonstrate that lynx harvest lynx captured has varied, usually management plans have not been returns in the 1980s and 1990s were not depending on the type of trap or the set amended or revised to provide long- substantially different from returns prior and whether the trap was checked in term conservation of lynx. to the 1960s and that wildlife managers time to successfully release or We conclude that timber harvest and were inappropriately using returns from rehabilitate the animal. These captures fire suppression on non-Federal lands the 1960s and 1970s as the standard on have sometimes caused no injuries and may cause local impacts to lynx and which to compare subsequent returns the animal was immediately released snowshoe hare habitat in the Great and set seasons, the final rule back into the wild, sometimes lynx were Lakes Region. Since the lynx was listed, thoroughly described historic trapping injured but were rehabilitated and then
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released into the wild, and sometimes The final rule discussed the fact that With the listing of the lynx in 2000, the captures have resulted in mortality. a substantial amount of lynx habitat in Federal agencies across the contiguous Mortality of captured individuals likely the contiguous United States is found United States range of the lynx were has differing impacts on the ability of on Federal lands, primarily National required to consult with the Service on local populations to persist depending Forest and BLM lands. The final rule actions that may affect lynx. The LCAS on the size of the local population and thoroughly described the purposes and assists Federal agencies in planning when the trapping occurs in the analyses of the LCAS and the biological activities and projects in ways that population cycle. Lynx persist assessment of National Forest and BLM benefit lynx or avoid adverse impacts to throughout their range despite the Land Management Plans (U.S. Forest lynx or lynx habitat (Ruediger et al. incidental catch that presumably has Service and Bureau of Land 2000). The LCAS addresses potential occurred throughout the past, probably Management 1999, Ruediger et al. risks including timber harvest and fire at higher levels than presently. 2000). At that time, we found that management. The LCAS ensures the Although we are concerned about the Federal land management plans did not appropriate mosaic of habitat is mortality of lynx that are incidentally adequately address risks to lynx and, as provided for lynx on Federal lands. For captured, we have no information to identified in the LCAS, that plans instance, both early successional forests indicate that the loss of these allowed actions that cumulatively could and older forests with understory are individuals has negatively affected the result in significant detrimental effects important for lynx foraging habitat. The overall ability of lynx in the contiguous to lynx in the contiguous United States. LCAS recommends that while timber United States to persist. We recognize As a result, we concluded in the final harvest can result in early successional that individuals may be lost, which rule that the lack of Federal Land forests, harvest be limited to provide could affect small, local populations. Management Plan guidance for adequate amounts of older timber Based on the information described in conservation of lynx, and the potential stands. Also, the LCAS recommends this section, we conclude that legal, for Plans to allow or direct actions that that no pre-commercial thinning occur lynx-targeted harvesting does not occur adversely affect lynx, were a significant in lynx habitat and no increase in and therefore is not a factor threatening threat to the contiguous United States designated or groomed snowmobile the contiguous United States lynx lynx population. routes in lynx habitat. If projects are population. The threat to lynx As described in the final rule, the designed that fail to meet these or other populations from illegal harvesting, if LCAS was developed to provide a recommendations, the biologists using any, and incidental catch by trapping, consistent and effective approach to the LCAS would arrive at an adverse snaring, or hunting is low. conserving lynx on Federal lands in the effects determination for lynx. On National Forest lands such projects then Factor C. Disease or Predation contiguous United States (Ruediger et al. 2000). The overall goals of the LCAS would be deferred until Forest Plans are Mountain lions (Puma concolor) and were to recommend lynx conservation amended to conserve lynx. fisher (Martes pennanti) have been measures, provide a basis for reviewing A Conservation Agreement between documented to prey on lynx (Squires the adequacy with regard to lynx the U.S. Forest Service and the Service and Ruggiero 2001, G. Matula, in litt. conservation of Forest Service and BLM (U.S. Forest Service and U.S. Fish and 2003) but there is no information to land and resource management plans, Wildlife Service in litt. 2000) and a suggest that these natural events are and facilitate conferencing and similar Agreement between the BLM threatening lynx populations. Plague consultation under section 7 of the Act, and the Service (Bureau of Land has been documented in the Colorado should the lynx be listed. The LCAS Management and U.S. Fish and Wildlife reintroduced population, but its overall identifies an inclusive list of 17 Service in litt. 2000) committed the U.S. impact is unknown at this time (T. potential risk factors for lynx or lynx Forest Service and BLM to use the LCAS Shenk, Colorado Division of Wildlife, habitat that may be addressed under in determining the effects of actions on pers. comm 2003). As in the final rule, programs, practices, and activities lynx. The U.S. Forest Service further we conclude that disease and predation within the authority and jurisdiction of committed to deferring any actions not are not factors threatening lynx. Federal land management agencies. For involving third parties that would Factor D. Inadequacy of Existing example, these risk factors include adversely affect lynx, until such time as Regulatory Mechanisms programs or practices that result in the Forest Plans were amended or habitat conversion, habitat revised to adequately conserve lynx. A The final rule (1) outlined regulatory fragmentation, or obstruction to lynx programmatic biological opinion protections that States and Tribes movement; roads or winter recreation analyzed and confirmed the adequacy of within the range of the lynx have in trails that facilitate access to historical the LCAS and its conservation measures place to provide protection to the lynx habitat by competitors; and fire to conserve lynx and concluded that species, (2) described how lynx is suppression, which changes the Forest and BLM land management plans protected under the Convention on vegetation mosaic maintained by natural as implemented in accordance with the International Trade in Endangered disturbance processes. The risks Conservation Agreements would not Species (CITES), and (3) identified identified in the LCAS are based on jeopardize the continued existence of efforts on private lands to provide for effects to either individual lynx, lynx (U.S. Fish and Wildlife Service the conservation of the species. These populations, both, or lynx habitat. 2000). Currently, the ongoing adherence protections and efforts will not be Therefore, not all of the risks identified to the Conservation Agreements, the reiterated here. in the LCAS threaten lynx populations LCAS, and the programmatic biological Timber harvest activities on non- in the United States. For example, one opinion alleviates the effects of Federal Federal lands are guided by State or risk factor identified for the Southern land management activities identified in Tribal forest practice rules whose Rockies Region is accidental death from the final rule. However, amendment of requirements vary (e.g., Maine Forest vehicle collisions. While this may result National Forest and BLM land Practices Act 1989); however, not all in the death of individual lynx, it is not management plans to conserve lynx will States or Tribes have forest practice considered to be a threat to lynx be the strongest mechanism in ensuring rules. populations. lynx and lynx habitat are conserved on
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National Forest and BLM lands for the not appear to be a significant direct vulnerability of lynx to intentional or long term. cause of mortality of resident lynx, but unintentional shooting and trapping. As a result of Federal, State, and that the majority of records of lynx We are concerned about the mortality of Tribal regulations and plans that mortalities from vehicle accidents are of lynx through legal or illegal trapping conserve lynx, the threats to lynx from recently translocated animals. No and shooting; however, we have no the inadequacy of existing regulatory information currently exists to information to indicate that the loss of mechanisms have been reduced. determine the level at which traffic these individuals negatively affects the However, until Federal land volume or roadway design may overall ability of lynx populations to management plans are amended to influence or create an impediment to persist. We conclude the threat to the address lynx, we conclude that the lynx movements. In local areas, lynx threat to lynx populations from threat to lynx because of the inadequacy may be negatively influenced by high incidental catch by trapping, snaring, or of existing regulatory mechanisms traffic volume on roads that bisect hunting is low (see Factor B above). continues to be moderate, albeit at a suitable lynx habitat and associated There continues to be no data on the lower level than that described in the suburban developments that contribute role of competition between lynx and final rule. to loss of habitat connectivity; however, other species; therefore, we have only Factor E. Other Natural or Manmade we conclude the overall threat to lynx information on behavior and Factors Affecting Its Continued populations from high traffic volume on morphological adaptations of lynx and Existence roads that bisect suitable lynx habitat of potential competitors during both and associated suburban developments winter and snow-free seasons from Since the lynx was listed, our is low, although locally in Colorado the which to gain some inferences about understanding of the vital role risk is higher. competition and whether it has an immigration of lynx from Canada plays Isolated, small resident lynx in sustaining lynx in the contiguous impact on lynx, as was thoroughly populations, such as may have existed described in the final rule. Bobcats, United States has improved (Ray et al. in the Southern Rocky Mountains and 2002, Schwartz et al. 2002). In the final mountain lions, and fishers are natural New York, are susceptible to genetic or potential competitors or predators that rule, we explained that connectivity of demographic problems or random appropriate habitat types and cover coevolved with lynx. As described in environmental events (such as a series the final rule, the coyote expanded its provide travel corridors between habitat of years when snow conditions are poor patches, thereby increasing the range into that of the lynx within the such that lynx cannot out-compete other past century so any potential for likelihood of successful lynx dispersal. predators). As described in competition between these two species It is essential that landscape ‘‘Background’’ above, we surmise that may be considered unnatural. Deep connectivity between lynx habitats and immigration is necessary to augment snow provides lynx its competitive populations in Canada and the and maintain local lynx populations, advantage. The final rule explained that contiguous United States be maintained. especially in transitional habitats at the human alteration of forests may create The final rule described the reduced southern margins of lynx range. The habitats that may be more suitable to ability for lynx from northern natural distance and isolation of the potential lynx competitors. At this time populations in Canada to cross the St. Southern Rocky Mountain region and there is no evidence that, if competition Lawrence River in southern Quebec and New York from source lynx populations exists between lynx and any of these the St. Mary’s River between Ontario may have severely reduced, if not and Michigan. At this time, we know of entirely precluded the immigration that species, it exerts a population-level no natural or human-caused barriers was likely necessary for potential impact on lynx; therefore, we do not that effectively prohibit movement of resident lynx populations in these areas consider competition to be a threat to lynx between Canada and the directly to sustain themselves. This same lynx. adjacent regions of the contiguous analysis does not apply to dispersers Research scientists in the Missoula United States (Northeast, Great Lakes, because we consider dispersers to be Wildlife Ecology unit of the Forest and Northern Rocky Mountains/ transient individual animals that are not Service Rocky Mountain Research Cascades) that support lynx habitats and a part of a population; they contribute Station, in cooperation with the populations. The threat to lynx because little to the persistence of the Northern Region of the Forest Service of the lack of a cohesive international metapopulation unless they augment or and the Superior National Forest in strategy to maintain connectivity colonize resident lynx populations. We Minnesota, recently discovered between habitats in Canada and the recognize that individual lynx may be evidence of hybridization between United States is low. affected by random environmental bobcats and Canada lynx. This is the The final rule also noted that for most events. We expect that many dispersing first time hybridization has been areas of the contiguous United States, lynx naturally do not survive because reported in wild populations of these we have no evidence that human-caused they are unable to find adequate food species. As a result of this finding, the changes have significantly reduced the resources and because of the risks Forest Service has conducted a DNA ability of lynx to disperse or have naturally inherent in long-distance analysis of most of the lynx hair resulted in the loss of genetic movements. samples collected as part of the National interchange. The final rule explained The final rule describes that lynx Lynx Survey to help determine if that high traffic volume on roads that show no evidence of being displaced by hybridization has occurred elsewhere. bisect suitable lynx habitat and or avoidance of unpaved forest roads. So far, no additional instances of associated suburban developments We find no information demonstrating hybridization have been detected. This (such as from ski area expansion) may that forest roads negatively impact lynx phenomenon may have implications for inhibit lynx movement and dispersal (Roe et al. 2001) and, therefore do not lynx conservation, but additional and may contribute to loss of habitat consider forest roads to be a threat to sampling and analysis are required connectivity. Such situations occur in lynx. before biologists will be able to fully the Southern Rocky Mountains Region The final rule discussed the theory understand the significance of the connecting cities, towns, and ski areas. that suggested that increasing ease of hybridization (D. Tippetts, U.S. Forest The final rule explained that roads do human access into forests increased the Service, in litt., 2003).
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Despite the lack of evidence that management plans that require the U.S. by snow depth. His predictions were competition with any species is Forest Service and BLM to use the LCAS only based on a comparison of average negatively affecting lynx, the final rule in determining the effects of actions on annual snow depths in the 1970s to explained the theory that ski and lynx (see Factor D). Because no those of the 1980s, not on models of snowmobile trails and roads that are evidence has been provided that packed future climate. Hoving (2001) maintained for winter recreation and snowtrails facilitate competition to a acknowledged that the 1970s were forest management create packed snow level that negatively affects lynx, we do unusually snowy whereas the 1980s was corridors that give other species, not consider packed snowtrails to be a a period of relatively little snow. If particularly coyotes, access to lynx threat to lynx at this time. average annual snow depth winter habitat on all land ownerships. During the public comment period on substantially decreases in the Northeast, This theory has neither been proven or this remanded decision, we received as Hoving (2001) theorized could disproven at this time (Roe et al. 2000). information that predicted that if snow On the basis of this theory, the LCAS depths substantially decrease for a long happen as a result of global warming, provides that there be no net increase in period of time, lynx habitat will no appropriate lynx habitat would be groomed or designated over-the-snow longer exist in the Northeast (Hoving diminished and could be completely routes and snowmobile play areas on 2001). Hoving’s (2001) model predicted eliminated if appropriate climate Federal lands (Ruediger et al. 2000). The that lynx were most likely to occur in conditions did not return. We conclude U.S. Forest Service and BLM are areas with deep snow (greater than 268 the potential for long-term reductions in committed to adhering to their cm (105 in) of mean annual snowfall). snow depth because of climate change Conservation Agreements with the Hoving (2001) modeled possible is speculative at this time and is not a Service and the programmatic biological consequences to the availability of lynx threat to lynx. opinion on Forest and BLM land habitat in the Northeast as determined
TABLE 2
Magnitude of threat Northern Rockies/ Northeast Great Lakes Southern Rockies Cascades
Factor A: Timber harvest regimes ...... Moderate ...... Low ...... Low ...... Low. Fire suppression ...... Not a threat ...... Low ...... Low ...... Low. Factor B: Legal lynx-targeted harvest ...... Not a threat ...... Not a threat ...... Not a threat ...... Not a threat. Incidental harvest ...... Low ...... Low ...... Low ...... Low. Factor C ...... Not a threat ...... Not a threat ...... Not a threat ...... Not a threat. Factor D: Federal land management plan Not a threat ...... Moderate ...... Moderate ...... Moderate. guidance. Factor E: International strategy ...... Low ...... Low ...... Low ...... Low. High volume traffic/development Low ...... Low ...... Moderate ...... Low. Forest roads ...... Not a threat ...... Not a threat ...... Not a threat ...... Not a threat. Competition ...... Not a threat ...... Not a threat ...... Not a threat ...... Not a threat. Global warming ...... Not a threat ...... Not a threat ...... Not a threat ...... Not a threat.
Finding wilderness areas in the Great Lakes, these areas has not substantially Southern Rocky Mountains, and changed in the past century because, for Based on the information provided in Northern Rocky Mountains/Cascades). the most part, areas where lynx habitat the final rule and the analysis provided Activities addressed in the factors occurs are still managed as forest lands, above about the range of the lynx and contained in section 4(a)(1) are not of although there may have been a low the five factors contained in section the magnitude or scope to require us to level of encroachment in lynx habitat 4(a)(1) of the ESA, we find that the lynx list the species as endangered. We base because of human development in some is not endangered because it is not in our finding that lynx is not endangered local areas. The quality of the boreal danger of extinction throughout a on the following factors: forest varies because it is a naturally significant portion of its range. The way (1) Lynx in the contiguous United dynamic ecosystem. To support lynx, the lynx is affected varies across the States are, and historically have been, the boreal forest must contain the range and there is not any particular the southernmost segment of a larger mosaic of appropriate species activity that poses a threat consistently metapopulation whose center is in composition, forest stand ages, and throughout the range of the species. Canada. Immigration from Canada is, forest structure that provide snowshoe Activities that may impact the lynx and and historically was, vital to sustaining hare habitat for lynx foraging and lynx its habitat are typically localized and lynx in the contiguous United States. denning conditions. even within a local area the impact an (2) In the contiguous United States, (3) Lynx habitat occurs on lands activity may have on lynx can vary lynx habitat consists of the southern owned and managed by Federal, Tribal, depending on the quality and quantity extensions of the boreal forest in the State, County, and private individuals of habitat in a local area or the size of Northeast, Great Lakes, Southern Rocky and entities. Although we do not have the local resident population. In some Mountains, and Northern Rocky information that allows us to accurately portions of the range, lynx and its Mountains/Cascades. The overall quantify how much habitat for lynx habitat face few or no threats (e.g., in quantity and extent of boreal forest in exists in the contiguous United States,
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in the Northeast nearly all lynx habitat populations; therefore we expect lynx Oregon, Utah, Vermont, Wisconsin, and occurs on private lands. In the Great occupy these areas. Wyoming. Lakes, Southern Rocky Mountains, and The areas where resident populations (7) Areas that are outside of boreal Northern Rocky Mountains/Cascades, occur are where habitat for lynx has forest types and that do not have cold lynx habitat occurs primarily on Federal consistently been of sufficient quality winters with deep snow where lands, although a portion does occur on and quantity to support abundant dispersing lynx have sporadically been State, Tribal, or private lands. Based on snowshoe hare populations so that lynx documented are not considered a part of coarse vegetation maps, potential lynx are able to successfully produce kittens the range of lynx because they do not habitat was roughly estimated to be that are then recruited into the contain the ecological conditions 65,337 km 2 (25,227 mi 2) in the population. These habitats are of capable of supporting lynx. These areas Northeast; 96,247 km 2 (37,161 mi 2) in sufficient quality and quantity such that include—Connecticut, Indiana, Iowa, the Great Lakes; 26,673 km 2 (10,298 snowshoe hare populations at cyclic Massachusetts, Nebraska, Nevada, North mi 2) in the Southern Rocky Mountains; lows are still able to support a minimal Dakota, Ohio, Pennsylvania, South and 155,893 km 2 (60,191 mi 2) in the number of lynx in the area, although we Dakota, and Virginia. Northern Rocky Mountains/Cascades do not expect that lynx successfully (8) We conclude that large portions of (U.S. Forest Service and Bureau of Land reproduce when hare populations are range of the lynx in the Great Lakes, Management 1999). low. Additionally, the habitat quality Southern Rocky Mountains, and (4) The current range of the lynx and quantity can support immigrants Northern Rocky Mountains/Cascades includes portions of Colorado, Idaho, from Canada that colonize new areas or are managed as non-developmental, Maine, Michigan, Minnesota, Montana, contribute to existing populations. In such as designated wilderness areas, New Hampshire, New York, Oregon, reality, in each region these areas are an which is beneficial to lynx because it is Utah, Vermont, Washington, Wisconsin, artifact of the international border managed to let natural ecological and Wyoming. The historic range of the between Canada and the United States processes dominate. While there is some lynx included these same States. The that artificially splits them into two risk to lynx in these areas, these risks do range of the lynx has not been pieces of a whole that exists primarily not threaten lynx. dramatically reduced. We believe all in Canada. This is most evident in (9) We conclude there is a low threat historic habitat is still available to Minnesota and Ontario—it appears to the contiguous United States lynx dispersing lynx except for very local sometimes the Ontario lynx population population because of the lack of a areas where development has expands and occupies Minnesota and cohesive international strategy to encroached on the boreal forest. A sometimes it contracts and lynx recede maintain connectivity between habitats resident population does not exist in from Minnesota. in Canada and the United States. New York. We do not know if New York Historically, both Colorado and New (10) We conclude there is a threat to or the Southern Rockies ever supported York may have supported small resident the contiguous United States lynx resident lynx populations, but efforts at lynx populations that may have been population because of current effects of reintroduction of lynx in New York extirpated, although we are uncertain timber harvest and thinning and fire were unsuccessful and it would be because historic records in these areas suppression on both non-Federal and premature to judge ongoing also may have been of dispersers that Federal lands in the Northern Rocky reintroduction efforts in Colorado arrived during extremely high Mountains/Cascades and Southern (although reproduction has recently population cycles. In both Colorado and Rocky Mountains. We conclude that this been documented). New York the last verified record of threat is low. Although a majority of (5) In the contiguous United States, lynx was in 1973, a time that lynx habitat in these regions is on the quality and quantity of the available corresponds to an extreme cyclic National Forest and BLM lands that are habitat and its proximity to source population high. In both States there managed to conserve lynx, timber populations influenced whether lynx have been recent efforts to establish harvest regimes and fire suppression historically were able to establish lynx populations. The attempt to that may be locally detrimental to lynx resident populations or occurred establish a lynx population in New York and snowshoe hare habitat likely occurs primarily as dispersers. The best in 1989–1991 was unsuccessful. The on the limited amount of non-Federal scientific information suggests that State of Colorado has undertaken an lands that support lynx habitat in both historically only a few areas in the intensive effort to restore lynx in the Northern Rocky Mountains/ contiguous United States had lynx Colorado. Lynx have been released over Cascades and Southern Rocky habitat of high enough quality and the past 4 years into Colorado and Mountains. quantity to support resident populations reproduction was recently documented, (11) We conclude that lynx habitat and these are areas where resident but it is too early to determine if a may be impacted because of changing populations currently continue to population will be successfully timber harvest regimes on non-Federal persist—northern Maine, northeastern established. lands in the Northeast. We conclude the Minnesota, western Montana, and (6) In the remainder of the lynx range threat of these activities is moderate, north-central and northeastern where some boreal forest exists in although there is the potential for more Washington. Evidence of the continuing smaller patches, is of marginal quality, severe impacts if a natural mosaic of high quality habitat of these areas is or is relatively isolated from source lynx vegetation ages and forest structure that indicated by the fact that currently there populations, lynx occur as dispersers. can support snowshoe hares and lynx is are many more lynx in these areas We include boreal forest that supports not maintained. where resident populations exist only dispersers within the range of the (12) We conclude that lynx may be (particularly in Maine and northeastern lynx because of the possibility lynx impacted because of timber harvest and Minnesota) than we knew at the time we could establish a local population and fire suppression on non-Federal and listed the species in 2000. Northern contribute to the persistence of the Federal lands in the Great Lakes. New Hampshire and northern Idaho metapopulation. However, evidence of However, the impact of these activities currently have habitat conditions this is minimal. We consider these areas is low because a majority of lynx habitat presumed capable of supporting lynx that only support dispersers within the in this region is on National Forest and are directly adjacent to resident range of the lynx—portions of Michigan, lands, which are managed to conserve
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lynx; however, on the non-Federal lands the Canada-U.S. border. Coyote snaring these areas are not ‘‘areas in which [the in this region timber harvest regimes in Maine poses a risk of incidental lynx] is no longer viable but once was,’’ and fire suppression could cause local mortality to local lynx populations. The because the lynx was never viable there. impacts to lynx and snowshoe hare potential exists for lynx to occur in New Defenders of Wildlife v. Norton, 258 habitat. Hampshire because of its direct F.3d 1136, 1145 (9th Cir. 2001) (quoted (13) Until Federal land management connectivity with Maine and we at 239 F.Supp.2d at 20). However, if we plans are amended or revised to address presume they currently occur there. presume that both Colorado and New lynx, we conclude that the threat to lynx Lynx in Vermont have always existed York historically supported resident because of the inadequacy of existing solely as dispersers because Vermont populations, we find these areas do not regulatory mechanisms is moderate, naturally supports very little lynx constitute a significant portion of the albeit at a lower level than that habitat. range of lynx for the following reasons: described in the final rule. Lynx in the Great Lakes are not in (1) Both areas constitute a (14) We conclude there is a threat to danger of extinction. Northeastern comparatively small amount of the the contiguous United States lynx Minnesota has historically supported, contiguous United States range of the population from incidental catch by and currently supports, a resident lynx lynx. Based on rough estimates, the trapping, snaring, or hunting. We population. Boreal forest in Minnesota Southern Rockies (primarily Colorado) conclude this threat is low, although is contiguous with occupied habitat in supported only 8 percent of lynx habitat there may be an increased risk to small, Ontario. Currently, there are many more in the contiguous United States (U.S. local populations from incidental catch lynx in northeastern Minnesota than we Forest Service and Bureau of Land depending on when it occurs in the knew of at the time of the final rule in Management 1999); however, we know population cycle; however, we have no 2000. The majority of lynx habitat in the this proportion was somewhat information regarding how frequently Great Lakes area is located in Minnesota underestimated because lynx habitat incidental trapping, snaring, or hunting and is managed as Federal lands. was overestimated in other regions. New of lynx occurs. Threats to lynx on these lands are York supports slightly more than 1 (15) We conclude that existing alleviated because these Federal percent of lynx habitat just within the regulatory mechanisms do not agencies use the LCAS to guide Northeast based on a current habitat ameliorate all of the threats contained in activities in lynx habitat. Amendment or model, and therefore only a small Factors A, B, and E. However, some revision of Federal land management fraction of a percent of the habitat regulatory mechanisms do minimize the plans to adequately address lynx is nationwide. impact some activities may have on necessary to provide long-term lynx (2) The fact that historic records do lynx, such as regulations that prohibit conservation. On non-Federal lands not clearly demonstrate that these areas the trapping and hunting of lynx in there is a low threat to lynx because of supported resident, breeding lynx most States. While Federal land the potential for certain forms of timber populations indicates that these areas management plans have yet to be management and fire suppression to are of more marginal quality. Where amended to adequately address lynx, reduce snowshoe hare habitat. habitat is abundant and of higher Federal land managers have taken Wisconsin and Michigan naturally quality, there is evidence that resident, significant steps to minimize the support only dispersing animals. We breeding lynx populations persist as impacts projects may have on lynx and base this assessment on the lack of indicated by high numbers of reliable manage habitat to conserve lynx until evidence of reproduction, lack of direct lynx records over many years and land management plans are amended. connectivity with suitable habitat, and evidence of reproduction. We do not (16) We conclude lynx are impacted limited amount of habitat in these have such information for either New by high traffic volume on roads that States. York or the Southern Rocky Mountains. bisect suitable lynx habitat and by We conclude that the only portion of In fact, an effort to establish a lynx associated suburban developments. the range where the lynx faces possible population in New York during 1989– However, we conclude this impact is extirpation includes the Southern Rocky 1991 failed, potentially an indication low because this situation rarely occurs Mountains (primarily Colorado) and that the habitat was not adequate to throughout the range of lynx except in New York, to the extent that either of support a lynx population. the Southern Rocky Mountains; these areas historically supported Reproduction has recently been however there is currently no native resident populations. We believe the documented in an intensive lynx lynx population in this area. loss of these resident populations was a reestablishment effort currently Lynx in the Northeast are not in natural process because these areas are underway in Colorado but it remains to danger of extinction. As it has naturally isolated from source lynx be seen if the habitat is adequate to historically, the boreal forest of the populations and habitats; therefore, the support a lynx population for the long- Northeast exists primarily in Maine. immigration necessary to augment and term without such intensive human Lynx habitat in Maine is currently maintain local lynx populations was intervention. optimal and a resident, breeding naturally precluded. However, the State (3) Habitat appears marginal in the population of lynx continues to exist. of Colorado is currently undertaking an Southern Rocky Mountains and New Maine’s lynx population is currently intense effort to restore lynx to York. In the Southern Rocky Mountains much larger than we knew at the time Colorado. If lynx in these areas lynx habitat occurs at high elevations of the final rule in 2000 and lynx habitat historically consisted only of dispersers and, therefore, is naturally highly in Maine is directly connected to that arrived during extremely high fragmented by topography and drier substantial lynx populations and habitat population cycles, we have no evidence south- and west-facing slopes into in southeastern Quebec and New that anything would prevent further island-like patches rather than Brunswick. Future timber harvest such dispersal into these areas in the expansive, contiguous blocks. The regimes in Maine have the potential to future. In addition, to use the words of amount of potential lynx habitat in New reduce the amount of snowshoe hare another court quoted with approval of York is estimated to be an area only habitat, which in turn would reduce the the court in this case, to the extent that slightly larger than the average home size of the lynx population. There are no these areas never supported a resident range of a single male lynx. barriers to the movement of lynx across population (as opposed to dispersers), Additionally, the boreal forest in New
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York is protected as Adirondack State the contiguous United States is References Cited Park where much of the forest is mature presumably minimal. and does not have the understory We conclude that the contiguous A complete list of all references cited necessary to support a snowshoe hare United States DPS of the lynx is not in herein, as well as others, is available population capable of sustaining lynx. danger of extinction throughout a upon request from the Montana Field significant portion of its range within Office (see ADDRESSES). (4) Both of these areas are a relatively the Northeast, Great Lakes, or Southern Author long distance and naturally more Rockies and therefore does not warrant isolated from other lynx populations, reclassification to ‘‘endangered’’ status The author of this document is Lori substantially reducing the potential for in all or a significant portion of its range Nordstrom, Montana Field Office, lynx from northern populations to within these areas. As a result the Helena, Montana. augment or colonize these areas or, Canada lynx will remain listed as Dated: June 24, 2003. alternatively, reducing the ability of threatened in Colorado, Idaho, Maine, lynx from these areas to have Michigan, Minnesota, Montana, New Steve Williams, augmented or colonized other lynx Hampshire, New York, Oregon, Utah, Director, Fish and Wildlife Service. habitats. Therefore the contribution of Vermont, Washington, Wisconsin, and [FR Doc. 03–16664 Filed 7–2–03; 8:45 am] these areas to the persistence of lynx in Wyoming. BILLING CODE 4310–55–P
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Part IV
Department of Defense General Services Administration National Aeronautics and Space Administration 48 CFR Parts 30 and 52 Federal Acquisition Regulation; Cost Accounting Standards Administration; Proposed Rule
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DEPARTMENT OF DEFENSE A. Background external restructuring from contract The proposed rule delineates the price and cost adjustments; GENERAL SERVICES 2. Offsets. This second proposed rule process for determining and resolving ADMINISTRATION eliminates the term ‘‘offset’’ to avoid the cost impact on contracts and potential confusion regarding the term, subcontracts when a contractor makes a NATIONAL AERONAUTICS AND but includes the effect of offsets in the compliant change to a cost accounting SPACE ADMINISTRATION cost impact calculation process by practice or uses a noncompliant separating the calculation of the cost practice. In conjunction with the 48 CFR Parts 30 and 52 impact from the resolution of the cost proposed rule being published today, a impact; public meeting will be held on August [FAR Case 1999–025] 3. Materiality. This second proposed 5, 2003. The public meeting is intended rule clarifies that the cognizant Federal to provide the purpose and rationale for RIN 9000–AI70 agency official (CFAO) may make a each paragraph of the proposed rule. materiality determination at any point The public meeting will also offer Federal Acquisition Regulation; Cost in the cost impact process, including participants an opportunity to ask Accounting Standards Administration before requesting a general dollar questions regarding the content of the magnitude (GDM) proposal. AGENCIES: Department of Defense (DoD), proposed rule. The specific date, time, 4. Desirable change. This second General Services Administration (GSA), and location of the meeting will also be proposed rule provides additional and National Aeronautics and Space posted at http://www.acq.osd.mil/dp/cpf guidance regarding what constitutes a Administration (NASA). within three days of the date of this desirable change. ACTION: Proposed rule with request for publication. 5. Form and content of the GDM and comments, and notice of a public FAR Part 30, Cost Accounting detailed cost impact (DCI) proposals. meeting. Standards Administration, describes This second proposed rule revises the policies and procedures for applying the requirements regarding the form and SUMMARY: The Civilian Agency Cost Accounting Standards Board content of both the GDM and DCI Acquisition Council and the Defense (CASB) rules and regulations to proposals to provide greater flexibility Acquisition Regulations Council negotiated contracts and subcontracts. to apply practical solutions to the cost (Councils) are proposing to amend the The CASB’s rules, regulations, and Cost impact process and to reduce the Federal Acquisition Regulation (FAR) to Accounting Standards (CAS) are administrative effort. This includes delineate the process for determining codified at 48 CFR Chapter 99 (FAR revising the requirements of the— and resolving the cost impact on Appendix). Negotiated contracts not a. GDM proposal so that broad based contracts and subcontracts when a exempt in accordance with 48 CFR data may be used as the basis for the contractor makes a compliant change to 9903.201–1(b) are subject to CAS. GDM proposal; and a cost accounting practice or follows a A proposed FAR rule was published b. DCI proposal to provide flexibility noncompliant practice. in the Federal Register at 65 FR 20854, for the CFAO to not require individual DATES: Comment date: Interested parties April 18, 2000. The rule delineated the data on all contracts, but to project the should submit comments in writing on entire cost-impact process the cost impact on larger contracts to the or before September 2, 2003 to be Government and the contractor shall remaining contract universe. considered in the formulation of a final follow when a contractor makes a 6. Contract price adjustments. The rule. compliant change to a cost accounting proposed rule provides for the CFAO to Public meeting: A public meeting will practice or follows a noncompliant resolve a cost impact attributed to a be held on August 5, 2003, at the practice. Nine responders submitted change in cost accounting practice or a address shown below from 9 a.m. to 5 public comments. Additional comments noncompliance by adjusting a single p.m., local time. were provided by the public at a series contract, several but not all contracts, all of public meetings that were held on contracts, or any other suitable method. ADDRESSES: Comments: Submit written August 2, 2000, September 26, 2000, comments to—General Services In an ideal world, the CFAO would and October 17, 2000. Administration, FAR Secretariat (MVA), adjust all contracts so that each and The Councils considered the written 1800 F Street, NW, Room 4035, ATTN: every dollar of the cost impact is comments received in response to the Laurie Duarte, Washington, DC 20405. perfectly re-allocated to each and every proposed rule and the comments Submit electronic comments via the affected contract. However, the Councils provided during the public meetings. As Internet to—farcase.1999–[email protected]. recognize that, in many instances, a result, the Councils are currently Please submit comments only and cite adjusting all contracts is not practical or proposing a rule that differs FAR case 1999–025 in all feasible. The proposed rule, therefore, significantly from the proposed rule that correspondence related to this case. provides the CFAO the flexibility to was published on April 18, 2000. The Public meeting: The public meeting resolve the cost impact using methods main differences between the two will be held at—Crystal Mall 3, 1931 other than adjusting every contract, proposed FAR rules are listed below. provided the Government will not pay Jefferson Davis Highway, Room C–43, 1. CASB final rule. This second Arlington, VA, 22202. more, in the aggregate, than would be proposed rule incorporates changes paid if the CFAO had adjusted all the FOR FURTHER INFORMATION CONTACT: The based on a CASB final rule, Changes in contracts. FAR Secretariat, Room 4035, GS Cost Accounting Practices, which was 7. Responsibilities and roles of the Building, Washington, DC, 20405, at published in the Federal Register at 65 CFAO. This second proposed rule (202) 501–4755 for information FR 37469, June 14, 2000. These FAR requires the CFAO to execute contract pertaining to status or publication changes include the addition of— modifications in lieu of the contracting schedules. For clarification of content, a. Definitions for required, unilateral, officers at the agencies that awarded the contact Mr. Edward Loeb at (202) 501– and desirable changes; and contracts; and 0650. Please cite FAR case 1999–025. b. CASB language excluding cost 8. New solicitation provision. This SUPPLEMENTARY INFORMATION: accounting practice changes related to second proposed rule adds a provision
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that requires a contractor to indicate if Affected CAS-covered contract or Required change means— the contract award will result in a cost subcontract means a contract or (1) A change in cost accounting accounting practice change and, if so, to subcontract subject to Cost Accounting practice that a contractor is required to prepare a pricing proposal using the Standards (CAS) rules and regulations make in order to comply with a CAS, or changed practice. for which a contractor or a modification or interpretation thereof, This is not a significant regulatory subcontractor— that subsequently becomes applicable to action and, therefore, was not subject to (1) Used one cost accounting practice an existing CAS-covered contract due to review under Section 6(b) of Executive to estimate costs and a changed cost the receipt of another CAS-covered Order 12866, Regulatory Planning and accounting practice to accumulate and contract or subcontract; or Review, dated September 30, 1993. This report costs under the contract or (2) A prospective change to a rule is not a major rule under 5 U.S.C. subcontract; or disclosed or established cost accounting 804. (2) Used a noncompliant practice for practice when the CFAO determines purposes of estimating or accumulating that the former practice was in B. Regulatory Flexibility Act and reporting costs under the contract compliance with applicable CAS and The Councils do not expect this or subcontract. the change is necessary for the proposed rule to have a significant Cognizant Federal agency official contractor to remain in compliance. economic impact on a substantial (CFAO) means the contracting officer Unilateral change means a change in number of small entities within the assigned by the cognizant Federal cost accounting practice from one meaning of the Regulatory Flexibility agency to administer CAS. compliant practice to another compliant Act, 5 U.S.C. 601, et seq., because Desirable change means a unilateral practice that a contractor with a CAS- contracts and subcontracts with small change to a contractor’s established or covered contract(s) or subcontract(s) elects to make that has not been deemed businesses are exempt from all CAS disclosed cost accounting practices that a desirable change by the CFAO and for requirements in accordance with 48 the CFAO finds is desirable and not which the Government will pay no CFR 9903.201–1(b)(3). An Initial detrimental to the Government and is, aggregate increased costs. Regulatory Flexibility Analysis has, therefore, not subject to the no increased cost prohibition provisions of CAS- 3. Amend section 30.201–3 by adding therefore, not been performed. We invite paragraph (c) to read as follows: comments from small businesses and covered contracts and subcontracts other interested parties. The Councils affected by the change. 30.201–3 Solicitation provisions. Fixed-price contracts and will consider comments from small * * * * * entities concerning the affected FAR subcontracts means— (c) Insert the provision at FAR Parts 30 and 52 in accordance with 5 (1) Fixed-price contracts and 52.230–7, Proposal Disclosure—Cost U.S.C. 610. Interested parties must subcontracts described at 16.202, Accounting Practice Changes, in submit such comments separately and 16.203, and 16.207; solicitations for contracts subject to CAS (2) Fixed-price incentive contracts should cite FAR case 1999–025 in as specified in 48 CFR 9903.201 (FAR correspondence. and subcontracts where the price is not Appendix). adjusted based on actual costs incurred 4. Amend section 30.202–6 by C. Paperwork Reduction Act (subpart 16.4); revising paragraph (b); removing from The Paperwork Reduction Act does (3) Orders issued under indefinite- paragraph (c) the word ‘‘cognizant’’; and not apply because the proposed changes delivery contracts and subcontracts by revising paragraph (d) to read as to the FAR do not impose information where final payment is not based on follows: collection requirements that require the actual costs incurred (subpart 16.5); and 30.202–6 Responsibilities. approval of the Office of Management (4) The fixed-hourly rate portion of and Budget under 44 U.S.C. 3501, et time-and-materials and labor-hours * * * * * seq. contracts and subcontracts (subpart (b) The contracting officer shall not 16.6). award a CAS-covered contract until the List of Subjects in 48 CFR Parts 30 and Flexibly priced contracts and cognizant Federal agency official 52 subcontracts means— (CFAO) has made a written (1) Fixed-price contracts and Government procurement. determination that a required Disclosure subcontracts described at 16.204, Statement is adequate unless, in order to Dated: June 26, 2003. 16.205, and 16.206; protect the Government’s interest, the Laura G. Smith, (2) Cost-reimbursement contracts and agency head, on a nondelegable basis, Director, Acquisition Policy Division. subcontracts (subpart 16.3); authorizes award without obtaining Therefore, DoD, GSA, and NASA (3) Incentive contracts and submission of the required Disclosure propose amending 48 CFR parts 30 and subcontracts where the price may be Statement (see 48 CFR 9903.202–2). In 52 as set forth below: adjusted based on actual costs incurred this event, the CFAO shall make a 1. The authority citation for 48 CFR (subpart 16.4); determination of adequacy as soon as parts 30 and 52 is revised to read as (4) Orders issued under indefinite- possible after the award. follows: delivery contracts and subcontracts * * * * * where final payment is based on actual (d) The CFAO is responsible for Authority: 40 U.S.C. 121(c); 10 U.S.C. costs incurred (subpart 16.5); and chapter 137; and 42 U.S.C. 2473(c). issuing determinations of adequacy and (5) The materials portion of time-and- compliance of the Disclosure Statement. PART 30—COST ACCOUNTING materials contracts and subcontracts 5. Revise section 30.202–7 to read as STANDARDS ADMINISTRATION (subpart 16.6). follows: Noncompliance means a failure in 2. Add section 30.001 to read as estimating, accumulating, or reporting 30.202–7 Determinations. follows: costs to— (a) Adequacy determination. (1) As (1) Comply with applicable CAS; or prescribed by 48 CFR 9903.202–6 (FAR 30.001 Definitions. (2) Consistently follow disclosed or Appendix), the cognizant auditor As used in this part— established cost accounting practices. shall—
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(i) Conduct a review of the Disclosure 30.601 Responsibility. action to require that a cost impact Statement to ascertain whether it is (a) The CFAO shall perform CAS proposal be submitted or to adjust current, accurate, and complete; and administration for all contracts and contracts, if the ACO determines the (ii) Report the results to the CFAO. subcontracts in a business unit, even amount involved is immaterial. (2) The CFAO shall determine if the when the contracting officer retains However, in the case of noncompliance Disclosure Statement adequately other administration functions. The issues, the ACO shall inform the describes the contractor’s cost CFAO shall make all CAS-related contractor that— accounting practices. Also, the CFAO determinations and findings (see (a) The Government reserves the right shall— subpart 1.7) for all CAS-covered to make appropriate contract adjustments if, in the future, the ACO (i) If the Disclosure Statement is contracts and subcontracts, including— determines that the cost impact has adequate, notify the contractor in (1) Whether a change in cost become material; and writing, and provide a copy to the accounting practice or noncompliance has occurred; and (b) The contractor is not excused from auditor with a copy to the contracting the obligation to comply with the officer if the proposal triggers (2) If a change in cost accounting practice or noncompliance has applicable Standard or rules and submission of a Disclosure Statement. regulations involved. The notice of adequacy shall state that— occurred, how any resulting cost impacts are resolved. 30.603–1 Required changes. (A) The disclosed practices are (b) Within 30 days after the award of adequately described and the CFAO any new contract subject to CAS, the (a) General. Offerors shall state currently is not aware of any additional contracting officer making the award whether or not the award of a contract practices that should be disclosed; shall request the CFAO to perform would require a change to an (B) The notice is not a determination administration for CAS matters (see established cost accounting practice that all cost accounting practices were subpart 42.2). For subcontract awards, affecting existing contracts and disclosed; and the contractor awarding the subcontract subcontracts (see 52.230–1). The (C) The contractor shall not consider shall follow the procedures at 52.230– contracting officer shall notify the a disclosed practice, by virtue of such 6(l). CFAO if the offeror states that a change disclosure, an approved practice for in cost accounting practice would be estimating proposals or accumulating 30.602 Materiality. required. and reporting contract and subcontract (a) In determining materiality, the (b) CFAO responsibilities. Prior to cost data; or CFAO shall use the criteria in 48 CFR making an equitable adjustment under the applicable paragraph(s) that address (ii) If the Disclosure Statement is 9903.305 (FAR Appendix). a required change at 52.230–2, Cost inadequate, notify the contractor of the (b) A CFAO determination of Accounting Standards; 52.230–3, inadequacies and request a revised materiality— Disclosure and Consistency of Cost Disclosure Statement. (1) May be made before or after a general dollar magnitude proposal has Accounting Practices; or 52.230–5, Cost (3) Generally, the CFAO should been submitted, depending on the Accounting Standards—Educational furnish the contractor notification of particular facts and circumstances; and Institution, the CFAO shall determine adequacy or inadequacy within 30 days (2) Shall be based on adequate that— after the CFAO receives the Disclosure documentation. (1) The cost accounting practice Statement. (c) When the amount involved is change is required to comply with a (b) Compliance determination. (1) immaterial, the CFAO shall— CAS, or a modification or interpretation After the notification of adequacy, the (1) Make no contract adjustments and thereof, that subsequently became auditor shall— conclude the cost impact process; and applicable to one or more contracts or (i) Conduct a detailed compliance (2) In the case of noncompliance subcontracts; or review to ascertain whether or not the issues, inform the contractor that— (2) The former cost accounting disclosed practices comply with CAS (i) The noncompliance should be practice was in compliance with and part 31, as applicable; and corrected; and applicable CAS and the change is (ii) Advise the CFAO of the results. (ii) If the noncompliance is not necessary to remain in compliance. (2) The CFAO shall make a corrected, the Government reserves the (c) Notice and proposal preparation. determination of compliance or take right to make appropriate contract (1) When the award of a contract would action regarding a report of alleged adjustments should the cost impact require a change to an established cost noncompliance in accordance with become material in the future. accounting practice, the provision at 30.605(b). (d) For required, unilateral, and 52.230–7, Proposal Disclosure—Cost Accounting Practice Changes, requires 6. Revise Subpart 30.6 to read as desirable changes, and CAS the offeror to— follows: noncompliances, when the amount involved is material, the CFAO shall (i) Prepare the contract pricing Subpart 30.6—CAS Administration adjust the contract or use another proposal in response to the solicitation suitable method (see 30.606). using the changed cost accounting Sec. practice for the period of performance 30.601 Responsibility. 30.603 Changes to disclosed or for which the practice will be used; and 30.602 Materiality. established cost accounting practices. (ii) Submit a description of the 30.603 Changes to disclosed or established Adjustments to contracts and changed cost accounting practice to the cost accounting practices. withholding amounts payable for CAS contracting officer and the CFAO as 30.603–1 Required changes. noncompliance, new standards, or pricing support for the proposal. 30.603–2 Unilateral and desirable changes. 30.604 Processing changes to disclosed or voluntary changes are required only if (2) When a change is required to established cost accounting practices. the amounts involved are material. In remain in compliance (for reasons other 30.605 Processing noncompliances. determining materiality, the ACO shall than a contract award) or to comply 30.606 Resolving cost impacts. use the criteria in 48 CFR 9903.305 with a new or modified standard, the 30.607 Subcontract administration. (FAR Appendix). The ACO may forego clause at 52.230–6, Administration of
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Cost Accounting Standards, requires the change include, but are not limited to, 30.604 Processing changes to disclosed contractor to— whether— or established cost accounting practices. (i) Submit a description of the change (i) The contractor must change the (a) Scope. This section applies to to the CFAO not less than 60 days (or cost accounting practices it uses for required, unilateral, and desirable other mutually agreeable date) before Government contract and subcontract changes in cost accounting practices. implementation of the change; and costing purposes to remain in (b) Procedures. Upon receipt of the (ii) Submit rationale to support any compliance with the provisions of part contractor’s notification and description contractor assertion that the cost impact 31; of the change in cost accounting of the change is immaterial. (ii) The contractor is initiating practice, the CFAO, with the assistance (d) Equitable adjustments for new or management actions directly associated of the auditor, should review the modified standards. (1) Required with the change that will result in cost proposed change concurrently for changes made to comply with new or savings for segments with CAS-covered adequacy and compliance. The CFAO modified standards may require contracts and subcontracts over a period shall— equitable adjustments, but only to those for which forward pricing rates are (1) If the description of the change is contracts awarded before the effective developed or five years, whichever is both adequate and compliant, notify the date of the new or modified standard shorter, and the cost savings are contractor in writing and— (see 52.230–2, 52.230–3, or 52.230–5). reflected in the forward pricing rates; (i) For required or unilateral changes (2) When a contractor elects to and (except those requested to be implement a required change to comply (iii) Funds are available if the determined desirable changes), request with a new or modified standard prior determination would necessitate an the contractor submit a general dollar to the applicability date of the standard, upward adjustment of contract cost or magnitude (GDM) proposal by a the CFAO shall administer the change price. specified date, unless the CFAO as a unilateral change (see 30.603–2). determines the cost impact is Contractors shall not receive an (c) Notice and proposal preparation. (1) When a contractor makes a unilateral immaterial; or equitable adjustment that will result in (ii) For unilateral changes that the increased costs in the aggregate paid by change, the clause at 52.230–6, Administration of Cost Accounting contractor requests to be determined the Government prior to the desirable changes, inform the contractor applicability date unless the CFAO Standards, requires the contractor to— (i) Submit a description of the change that the request shall include supporting determines that the unilateral change is rationale and— a desirable change. to the CFAO not less than 60 days (or other mutually agreeable date) before (A) For any request based on the 30.603–2 Unilateral and desirable implementation of the change; and criteria in 30.603–2(b)(3)(ii), the data necessary to demonstrate the required changes. (ii) Submit rationale to support any cost savings; or (a) Unilateral changes. (1) The contractor assertion that the cost impact (B) For any request other than those contractor may unilaterally change its of the change is immaterial. based on the criteria in 30.603– disclosed or established cost accounting (2) If a contractor implements the practices, but the Government shall not 2(b)(3)(ii), a GDM proposal and any change in cost accounting practice other data necessary for the CFAO to pay any increased cost, in the aggregate, without submitting the notice as as a result of the unilateral change. determine if the change is a desirable required in paragraph (c)(1) of this change; (2) Prior to making any contract price subsection, the CFAO may determine or cost adjustments under the applicable (2) If the description of the change is the change a failure to follow a cost inadequate, request a revised paragraph(s) of the clause addressing a accounting practice consistently and unilateral change at 52.230–2, 52.230–3, description of the new cost accounting process it as a noncompliance in practice; and or 52.230–5, the CFAO shall determine accordance with 30.605. that— (3) If the disclosed practice is (d) Retroactive changes. (1) If a (i) The contemplated contract price or noncompliant, notify the contractor in contractor requests that a unilateral cost adjustments will protect the writing that, if implemented, the CFAO change be retroactive, the contractor Government from the payment of the will determine the cost accounting shall submit supporting rationale. estimated increased costs, in the practice to be noncompliant and process aggregate; and (2) The CFAO shall promptly evaluate it accordingly. (ii) The net effect of the contemplated the contractor’s request and shall, as (c) Evaluating requests for desirable adjustments will not result in the soon as practical, notify the contractor changes. (1) When a contractor requests recovery of more than the increased in writing whether the request is or is a unilateral change be determined a costs paid by the Government, in the not approved. desirable change, the CFAO shall aggregate. (3) The CFAO shall not approve a date promptly evaluate the contractor’s (b) Desirable changes. (1) Prior to for the retroactive change that is before request and, as soon as practical, notify taking action under the applicable the beginning of the contractor’s fiscal the contractor in writing whether the paragraph(s) addressing a desirable year in which the request is made. change is a desirable change or the change at 52.230–2, 52.230–3, or (e) Contractor accounting changes request is denied. 52.230–5, the CFAO shall determine the due to external restructuring activities. (2) If the CFAO determines the change change is a desirable change and not The requirements for contract price and is a desirable change, the CFAO shall detrimental to the interests of the cost adjustments do not apply to negotiate any cost or price adjustments Government. compliant cost accounting practice that may be needed to resolve the cost (2) Until the CFAO has determined a changes that are directly associated with impact (see 30.606). change to a cost accounting practice is external restructuring activities that are (3) If the request is denied, the change a desirable change, the change is a subject to and meet the requirements of is a unilateral change and shall be unilateral change. 10 U.S.C. 2325. However, the disclosure processed accordingly. (3) Some factors to consider in requirements in 30.603–2 shall be (d) General dollar magnitude determining if a change is a desirable followed. proposal. The GDM proposal–
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(1) Provides information to the CFAO (1) Negotiate and resolve the cost paragraph (h)(3)(ii) of this section, the on the estimated overall impact of a impact (see 30.606). If necessary, the difference is increased cost to the change in cost accounting practice on CFAO may request that the contractor Government. affected CAS-covered contracts and submit a revised GDM proposal by a (B) When the amount in paragraph subcontracts that were awarded based specified date with specific additional (h)(3)(i) is less than the amount in on the previous cost accounting data needed to resolve the cost impact paragraph (h)(3)(ii) of this section, the practice; and (e.g., an expanded sample of affected difference is decreased cost to the (2) Assists the CFAO in determining CAS-covered contracts and subcontracts Government; whether individual contract price or or a revised method of computing the (ii) Determine the increased or cost adjustments are required. increase or decrease in cost decreased cost paid by the Government (e) General dollar magnitude proposal accumulations); or for flexibly priced contracts and content. The GDM proposal— (2) Request that the contractor submit subcontracts as follows: (1) Shall calculate the cost impact in a detailed cost-impact (DCI) proposal by (A) When the amount in paragraph accordance with paragraph (h) of this a specified date if the CFAO determines (h)(3)(i) exceeds the amount in section; that the GDM proposal is not sufficient paragraph (h)(3)(ii) of this section, the (2) May use one or more of the to resolve the cost impact. difference is decreased cost to the following methods to determine the (g) Detailed cost-impact proposal. The Government; increase or decrease in cost DCI proposal— (B) When the amount in paragraph accumulations: (1) Shall calculate the cost impact in (h)(3)(i) is less than the amount in (i) A representative sample of affected accordance with paragraph (h) of this paragraph (h)(3)(ii) of this section, the CAS-covered contracts and section; difference is increased cost to the subcontracts. (2) Shall show the estimated increase Government; and (ii) The change in indirect rates or decrease in cost accumulations for (iii) Calculate the total increase or multiplied by the total estimated base each affected CAS-covered contract and decrease in contract and subcontract computed for each of the following subcontract unless the CFAO and incentives, fees, and profits associated groups: contractor agree to— with the increased or decreased cost to (A) Fixed-price contracts and (i) Include only those affected CAS- the Government in accordance with 48 subcontracts. covered contracts and subcontracts CFR 9903.306(c). The associated (B) Flexibly priced contracts and exceeding a specified amount; and increase or decrease is based on the subcontracts. (ii) Estimate the total increase or difference between the negotiated (iii) Any other method that provides decrease in cost accumulations for all incentives, fees and profits and the a reasonable approximation of the total affected CAS-covered contracts and amounts that would have been increase or decrease in cost subcontracts, using the results in negotiated had the cost impact been accumulations for all affected fixed- paragraph (g)(2)(i) of this section; known at the time the contracts and (3) May be in any format acceptable price and flexibly priced contracts and subcontracts were negotiated. to the CFAO but, as a minimum, shall subcontracts. (iv) Calculate the increased or include the requirements at paragraphs (3) May be in any format acceptable decreased cost to the Government in the to the CFAO but, as a minimum, shall (e)(3)(i) and (ii) of this section; and (4) When requested by the CFAO, aggregate by adding— include the following data: (A) The increased or decreased costs shall identify all affected CAS-covered (i) The total increase or decrease in to the Government for fixed-price cost accumulations by executive agency, contracts and subcontracts. (h) Calculating cost impacts. The cost contracts and subcontracts; including any impact the change may impact calculation shall— (B) The increased or decreased costs have on contract and subcontract (1) Include all affected CAS-covered to the Government for flexibly priced incentives, fees, and profits, for each of contracts and subcontracts regardless of contracts and subcontracts; and the following groups: their status (i.e., open or closed) or the (C) The total increase or decrease in (A) Fixed-price contracts and fiscal year(s) in which the costs were contract and subcontract incentives, subcontracts. incurred (i.e., whether or not the final fees, and profits computed in paragraph (B) Flexibly priced contracts and indirect cost rates have been (h)(4)(iii) of this section; and subcontracts. established); (5) For equitable adjustments for (ii) For unilateral changes, the (2) Combine the cost impact for all required changes— increased or decreased costs paid by the affected CAS-covered contracts and (i) Estimated increased cost Government for each of the following subcontracts for all segments if the accumulations are the basis for groups: effect of a change results in costs increasing contract prices, including (A) Fixed-price contracts and flowing between those segments; target prices and cost ceilings; and subcontracts. (3) Compute the increase or decrease (ii) Estimated decreased cost (B) Flexibly priced contracts and in cost accumulations for affected CAS- accumulations are the basis for subcontracts; and covered contracts and subcontracts decreasing contract prices, including (4) When requested by the CFAO, based on the difference between— target prices and cost ceilings. shall identify all affected CAS-covered (i) The estimated cost to complete (i) Remedies. If the contractor does contracts and subcontracts. using the current practice; and not submit the accounting change (f) General dollar magnitude proposal (ii) The estimated cost to complete description or the proposals required in evaluation. The CFAO, with the using the changed practice; paragraph (d) or (g) of this section assistance of the auditor, shall promptly (4) For unilateral changes— within the specified time, or any evaluate the GDM proposal. If the cost (i) Determine the increased or extension granted by the CFAO, the impact is immaterial, the CFAO shall decreased cost to the Government for CFAO shall— notify the contractor in writing and fixed-price contracts and subcontracts (1) With the assistance of the auditor, conclude the cost impact process with as follows: estimate the general dollar magnitude of no contract adjustments. Otherwise, the (A) When the amount in paragraph the cost impact on affected CAS-covered CFAO shall— (h)(3)(i) exceeds the amount in contracts and subcontracts; and
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(2) Take one or both of the following existing practices to be compliant or the (1) Shall calculate the cost impact in actions: cost impact to be immaterial; accordance with paragraph (h) of this (i) Withhold an amount not to exceed (ii) Make a determination of section; 10 percent of each subsequent payment compliance or noncompliance (2) May use one or more of the related to the contractor’s affected CAS- consistent with 1.704; and following methods to determine the covered contracts (up to the estimated (iii) Notify the contractor and the increase or decrease in contract and general dollar magnitude of the cost auditor in writing of the determination subcontract price or cost accumulations, impact), until the contractor furnishes of compliance or noncompliance and as applicable: the required information. the basis for the determination. (i) A representative sample of affected (ii) Issue a final decision in (4) If the CFAO makes a CAS-covered contracts and subcontracts accordance with 33.211 and unilaterally determination of noncompliance, the affected by the noncompliance. adjust the contract(s) by the estimated CFAO shall follow the procedures in (ii) When the noncompliance involves amount of the cost impact. paragraphs (c) through (h) of this cost accumulation: section, as appropriate, unless the (A) For purposes of computing 30.605 Processing noncompliances. CFAO also determines the cost impact increased cost in the aggregate, the (a) General. Prior to making any is immaterial. If immaterial, the CFAO change in indirect rates multiplied by contract price or cost adjustments under shall— the applicable base for flexibly priced the applicable paragraph(s) addressing (i) Inform the contractor in writing contracts and subcontracts. noncompliance at 52.230–2, 52.230–3, that— (B) For purposes of determining or 52.230–5, the CFAO shall determine (A) The noncompliance should be interest, the change in indirect costs that— corrected; and multiplied by the applicable base for (1) The contemplated contract price or (B) If the noncompliance is not flexibly priced and fixed-price contracts cost adjustments will protect the corrected, the Government reserves the and subcontracts. Government from the payment of right to make appropriate contract (iii) Any other method that provides increased costs, in the aggregate; and adjustments should the noncompliance a reasonable approximation of the total (2) The net effect of the contemplated become material in the future; and increase or decrease in contract and contract price or cost adjustments will (ii) Conclude the cost impact process subcontract prices and cost not result in the recovery of more than with no contract adjustments. accumulations; the increased costs to the Government, (3) May be in any format acceptable (c) Correcting noncompliances. (1) in the aggregate. to the CFAO but, as a minimum, shall The clause at 52.230–6 requires the (3) The net effect of any invoice include the following data: contractor to submit a description of any adjustments made to correct an (i) The total increase or decrease in cost accounting practice change needed estimating noncompliance will not contract and subcontract prices and cost to correct a noncompliance within 60 result in the recovery of more than the accumulations, as applicable, by days after the earlier of— increased cost paid by the Government, executive agency, including any impact (i) Agreement with the CFAO that in the aggregate. the noncompliance may have on there is a noncompliance; or (4) The net effect of any interim and contract and subcontract incentives, (ii) Notification by the CFAO of a final voucher billing adjustments made fees, and profits, for each of the determination of noncompliance. to correct a cost accumulation following groups: noncompliance will not result in the (2) The CFAO, with the assistance of (A) Fixed-price contracts and recovery of more than the increased cost the auditor, should review the proposed subcontracts. pay by the Government, in the change to correct the noncompliance (B) Flexibly priced contracts and aggregate. concurrently for adequacy and subcontracts. (b) Notice and determination. (1) compliance (see 30.202–7). The CFAO (ii) The increased or decreased costs Within 15 days of receiving a report of shall— to the Government for each of the alleged noncompliance from the (i) When the description of the change following groups: auditor, the CFAO shall is both adequate and compliant— (A) Fixed-price contracts and (i) Notify the auditor that the CFAO (A) Notify the contractor in writing; subcontracts. disagrees with the alleged (B) Request that the contractor submit (B) Flexibly priced contracts and noncompliance; or by a specified date a general dollar subcontracts. (ii) Issue a notice of potential magnitude (GDM) proposal, unless the (iii) The total overpayments and noncompliance to the contractor and CFAO determines the cost impact is underpayments made by the provide a copy to the auditor. immaterial; and Government during the period of (2) The notice of potential (C) Follow the procedures at noncompliance. The total overpayments noncompliance shall— paragraph (b)(4) of this section if the and underpayments shall be broken (i) Notify the contractor in writing of CFAO determines the cost impact is down by quarter, unless each of the the exact nature of the noncompliance; immaterial. quarterly amounts billed during the and (ii) If the description of the change is period of noncompliance were (ii) Allow the contractor 60 days or inadequate, request a revised approximately equal; and other mutually agreeable date to— description of the new cost accounting (4) When requested by the CFAO, (A) Agree or submit reasons why the practice. shall identify all affected CAS-covered contractor considers the existing (iii) If the disclosed practice is contracts and subcontracts. practices to be in compliance; and noncompliant, notify the contractor in (e) General dollar magnitude proposal (B) Submit rationale to support any writing that, if implemented, the CFAO evaluation. The CFAO shall promptly assertion that the cost impact of the will determine the cost accounting evaluate the GDM proposal. If the cost noncompliance is immaterial. practice to be noncompliant and process impact is immaterial, the CFAO shall (3) The CFAO shall— it accordingly. follow the requirements in paragraph (i) If applicable, review the reasons (d) General dollar magnitude proposal (b)(4) of this section. Otherwise, the why the contractor considers the content. The GDM proposal— CFAO shall—
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(1) Negotiate and resolve the cost an alternate method that computes or decreased cost to the Government for impact (see 30.606). If necessary, the simple interest from the date of flexibly priced contracts and CFAO may request the contractor overpayment to the time the adjustment subcontracts as follows: submit a revised GDM proposal by a is effected. (i) When the amount in paragraph specified date, with specific additional (h) Calculating cost impacts. The cost (h)(4)(i) exceeds the amount in data needed to resolve the cost impact impact calculation shall— paragraph (h)(4)(ii), the difference is (e.g., an expanded sample of affected (1) Include all affected CAS-covered increased cost to the Government. CAS-covered contracts and subcontracts contracts and subcontracts regardless of (ii) When the amount in paragraph or a revised method of computing the their status (i.e., open or closed) or the (h)(4)(i) is less than the amount in increase or decrease in contract and fiscal year in which the costs were paragraph (h)(4)(ii), the difference is subcontract price and cost incurred (i.e., whether or not the final decreased cost to the Government; and accumulations); or indirect cost rates have been (7) Calculate the total increase or (2) Request that the contractor submit established); decrease in contract and subcontract a detailed cost-impact (DCI) proposal by (2) Combine the cost impact for all incentives, fees, and profits associated a specified date if the CFAO determines affected CAS-covered contracts and with the increased or decreased cost to that the GDM proposal is not sufficient subcontracts for all segments if the the Government in accordance with 48 to resolve the cost impact. effect of a change results in costs CFR 9903.306(c). The associated (f) Detailed cost-impact proposal. The flowing between those segments; increase or decrease is based on the DCI proposal— (3) For noncompliances that involve difference between the negotiated (1) Shall calculate the cost impact in estimating costs, compute the impact on incentives, fees, and profits and the accordance with paragraph (h) of this contract and subcontract price for amounts that would have been section. flexibly priced and fixed-price contracts negotiated had the contractor used a (2) Shall show the increase or and subcontracts (the computation for compliant practice; decrease in price and cost the flexibly priced contracts is used (8) For noncompliances that involve accumulations, as applicable for each only for purposes of determining any estimating costs, calculate the increased affected CAS-covered contract and necessary adjustments to fee and or decreased cost to the Government, in subcontract unless the CFAO and incentives), based on the difference the aggregate, by adding— contractor agree to— between— (i) The increased or decreased costs to (i) Include only those affected CAS- (i) The negotiated contract or the Government for fixed-price contracts covered contracts and subcontracts subcontract price; and and subcontracts; and having— (ii) What the negotiated price would (A) Contract and subcontract values have been had the contractor used a (ii) The total increase or decrease in exceeding a specified amount when the compliant practice; contract and subcontract incentives, noncompliance involves estimating (4) For noncompliances that involve fees, and profits computed in paragraph costs; and accumulating costs, compute the impact (h)(7) of this section; and (B) Incurred costs exceeding a on cost accumulations for flexibly (9) For noncompliances that involve specified amount when the priced and fixed-price contracts and accumulating costs, calculate the noncompliance involves accumulating subcontracts (the computation for the increased or decreased cost to the costs; and fixed-priced contracts is used only for Government, in the aggregate, by (ii) Estimate the total increase or purposes of determining interest on adding— decrease in price and cost costs paid), based on the difference (i) The increased or decreased costs to accumulations for all affected CAS- between— the Government for flexibly priced covered contracts and subcontracts (i) The costs that were accumulated contracts and subcontracts, and using the results in paragraph (f)(2)(i) of under the noncompliant practice; and (ii) The total increase or decrease in this section; (ii) The costs that would have been contract and subcontract incentives, (3) May be in any format acceptable accumulated using a compliant practice fees, and profits computed in paragraph to the CFAO but, as a minimum, shall (from the time the noncompliant (h)(7) of this section. include the information in paragraph practice was first implemented until the (i) Remedies. If the contractor does (d)(3) of this section; and date the noncompliant practice was not correct the noncompliance or (4) When requested by the CFAO, replaced with a compliant practice); submit the proposal required in shall identify all affected CAS-covered (5) For purposes of determining paragraph (d) or (f) of this section contracts and subcontracts. increased costs in the aggregate, for within the specified time, or any (g) Interest. The CFAO shall— noncompliances that involve estimating extension granted by the CFAO, the (1) Separately identify interest on any cots, determine the increased or CFAO shall follow the procedures at increased cost paid, in the aggregate, as decreased cost to the Government for 30.604(i). a result of the noncompliance; fixed-price contracts and subcontracts (2) Compute simple interest from the as follows: 30.606 Resolving cost impacts. date of overpayment to the time the (i) When the amount in paragraph (a) General. (1) The CFAO shall adjustment is effected in accordance (h)(3)(i) exceeds the amount in coordinate with the affected contracting with 26 U.S.C. 6621(a)(2), as follows: paragraph (h)(3)(ii), the difference is officers before negotiating and resolving (i) If the quarterly amounts billed increased cost to the Government. the cost impact when the estimated cost during the period of noncompliance (ii) When the amount in paragraph impact on any of their contracts is at were approximately the same, use the (h)(3)(i) is less than the amount in least $100,000. However, the CFAO has average interest rate and midpoint for paragraph (h)(3)(ii), the difference is the sole authority for negotiating and the period of the noncompliance as the decreased cost to the Government; resolving the cost impact. baseline for the computation of interest. (6) For purposes of determining (2) The CFAO may resolve a cost (ii) If the quarterly amounts billed increased costs in the aggregate, for impact attributed to a change in cost during the period of noncompliance noncompliances that involve cost accounting practice or a noncompliance were not approximately the same, use accumulation, determine the increased by adjusting a single contract, several
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but not all contracts, all contracts, or (iii) The CFAO may, in consultation increase or decrease individual contract any other suitable method. with the affected contracting officers, prices, including costs ceilings or target (3) In resolving the cost impact, the increase or decrease individual contract costs on flexibly priced contracts. In CFAO— prices, including cost ceilings or target such cases, the CFAO shall limit any (i) May combine the cost impacts of costs on flexibly priced contracts. In upward contract price adjustments to several changes in cost accounting such cases, the CFAO shall limit any affected contracts to the amount of practices within a segment, intermediate upward contract price adjustments on downward price adjustments to other office, or home office only if the changes affected contracts to the amount of affected contracts, i.e., the aggregate are implemented in the same fiscal year; downward price adjustments to other value of all contracts affected by a (ii) May combine the cost impacts of affected contracts, i.e., the aggregate noncompliance that involves cost two or more segments (e.g., a change value of all contracts affected by a accumulation shall not be increased that affects the flow of costs between unilateral change shall not be increased (9903.201–6(d)). segments or the implementation of a (9903.201–6(b)). (B) Shall require the contractor to— common cost accounting practice for (4) For noncompliances that involve (1) Correct contract cost two or more segments); estimating costs, the CFAO— accumulations in the contractor’s cost (iii) Shall not combine the cost impact (i) Shall, to the extent practical, not accounting records to reflect the of a change in cost accounting practice adjust the price upward for fixed-price contract price adjustments; and with the cost impact of a noncompliant contracts; (2) Adjust interim payment requests practice; and (ii) Shall, if contract adjustments are (public vouchers and/or progress (iv) Shall not combine the cost impact made, preclude payment of aggregate payments) and final vouchers to reflect of one noncompliant practice with the increased costs by reducing the contract the contract price adjustments. cost impact of another noncompliant price on fixed-price contracts. (6) When contract adjustments are practice. (iii) The CFAO may, in consultation made, the CFAO shall— (v) Shall not combine the costs with the affected contracting officers, (i) Execute the bilateral modifications impacts attributable to different increase or decrease individual contract if the CFAO and contractor agree on the categories of compliant changes, i.e., prices, including costs ceilings or target amount of the cost impact and the required, unilateral, or desirable costs on flexibly priced contracts. In adjustments (see 42.302(a)(11)(iv)); or changes. such cases, the CFAO shall limit any (ii) When the CFAO and contractor do (4) For desirable changes, the CFAO upward contract price adjustments to not agree on the amount of the cost should consider the estimated cost affected contracts to the amount of impact or the contract adjustments, impact of associated management downward price adjustments to other issue a final decision in accordance actions on contract costs in resolving affected contracts, i.e., the aggregate with 33.211 and unilaterally adjust the the cost impact. value of all contracts affected by a contract(s). (b) Negotiations. The CFAO shall— noncompliance that involves estimating (d) Alternate methods. (1) The CFAO (1) Negotiate and resolve the cost costs shall not be increased (9903.201– may use an alternate method instead of impact on behalf of all Government 6(d)). adjusting contracts to resolve the cost agencies; and (iv) Shall require the contractor to impact, provided the Government will (2) At the conclusion of negotiations, correct the noncompliance, i.e., ensure not pay more, in the aggregate, than prepare a negotiation memorandum and that compliant cost accounting practices would be paid if the CFAO did not use send copies to the auditor and affected will now be utilized to estimate the alternate method and the contracting contracting officers. proposed contract costs. parties agree on the use of that alternate (c) Contract adjustments. (1) The (v) Shall require the contractor to method; CFAO may adjust some or all contracts adjust any invoices that were paid based (2) The CFAO may not use an with a material cost impact, subject to on noncompliant contract prices to alternate method for contracts when the provisions in paragraphs (c)(2) reflect the adjusted contract prices, after application of the alternate method to through (c)(6) of this section. any contract price adjustments are made contracts would result in— (2) In selecting the contract or to resolve the noncompliance. (i) An underrecovery of monies by the contracts to be adjusted, the CFAO (5) For noncompliances that involve Government (e.g., due to cost overruns); should assure, to the maximum extent cost accumulation, the CFAO— or practical and subject to the provisions (i) Shall require the contractor to— (ii) Distortions of incentive provisions in paragraphs (c)(3) through (c)(6) of this (A) Correct noncompliant contract and relationships between target costs, section, that the adjustments reflect a cost accumulations in the contractor’s ceiling costs, and actual costs for pro rata share of the cost impact based cost accounting records for affected incentive type contracts. on the ratio of the cost impact of each contracts to reflect compliant contract (3) When using an alternate method executive agency to the total cost cost accumulations; and that excludes the costs from an indirect impact. (B) Adjust interim payment requests cost pool, the CFAO shall— (3) For unilateral changes, the CFAO (public vouchers and/or progress (i) Apply such exclusion only to the shall— payments) and final vouchers to reflect determination of final indirect cost rates (i) To the maximum extent practical, the difference between the costs paid (see 42.705); and not adjust the price upward for fixed- using the noncompliant practice and the (ii) Adjust the exclusion to reflect the price contracts; costs that should have been paid using Government participation rate for (ii) If contract adjustments are made, the compliant practice; or flexibly priced contracts and preclude payment of aggregate increased (ii) Shall adjust contract prices. In subcontracts. For example, if there are costs by taking one or both of the adjusting contract prices, the CFAO aggregate increased costs to the following actions— shall preclude payment of aggregate Government of $100,000, and the (A) Reduce the contract price on increased costs by disallowing costs on indirect cost pool where the adjustment fixed-price contracts. flexibly priced contracts. is to be effected has a Government (B) Disallow costs on flexibly priced (A) The CFAO may, in consultation participation rate of 50 percent for contracts; and with the affected contracting officers, flexibly priced contracts and
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subcontracts, the contractor shall payment is not based on actual costs incurred paragraphs (a)(3) and (a)(4)(i) of the clause at exclude $200,000 from the indirect cost (FAR Subpart 16.5); and FAR 52.230–2; or paragraphs (a)(3), (a)(4)(i), pool ($100,000/50% = $200,000). (4) The fixed-hourly rate portion of time- or (a)(4)(iv) of the clause at FAR 52.230–5, and-materials and labor-hours contracts and submit a description of the change to the 30.607 Subcontract administration. subcontracts (FAR Subpart 16.6). CFAO not less than 60 days (or such other When a negotiated CAS price Flexibly priced contracts and subcontracts date as may be mutually agreed to by the adjustment or a determination of means— CFAO and the Contractor) before (1) Fixed-price contracts and subcontracts noncompliance is required at the implementation of the change. described at FAR 16.204 and 16.206; (3) For any change in cost accounting subcontract level, the CFAO for the (2) Cost-reimbursement contracts and practices proposed in accordance with subcontractor shall furnish a copy of the subcontracts (FAR Subpart 16.3); paragraphs (a)(4)(ii) or (iii) of the clauses at negotiation memorandum or the (3) Incentive contracts and subcontracts FAR 52.230–2 and FAR 52.230–5; or with determination to the CFAO for the where the price may be adjusted based on paragraph (a)(3) of the clause at FAR 52.230– contractor of the next higher-tier actual costs incurred (FAR Subpart 16.4); 3, submit a description of the change not less subcontractor. The CFAO of the (4) Orders issued under indefinite-delivery than 60 days (or such other date as may be contractor or the next higher-tier contracts and subcontracts where final mutually agreed to by the CFAO and the payment is based on actual costs incurred subcontractor shall not change the Contractor) before implementation of the (FAR Subpart 16.5); and change. If the change includes a proposed determination of the CFAO for the (5) The materials portion of time-and- lower-tier subcontractor. If the retroactive date, submit supporting rationale. materials contracts and subcontracts (FAR (4) Submit a description of the change Subpart 16.6). subcontractor refuses to submit a GDM necessary to correct a failure to comply with Noncompliance means a failure in or DCI proposal, remedies are made at an applicable CAS or to follow a disclosed estimating, accumulating, or reporting costs the prime contractor level. practice (as contemplated by paragraph (a)(5) to— of the clause at FAR 52.230–2 and FAR (1) Comply with applicable CAS; or PART 52—SOLICITATION PROVISIONS 52.230–5; or by paragraph (a)(4) of the clause (2) Consistently follow disclosed or AND CONTRACT CLAUSES at FAR 52.230–3)— established cost accounting practices. (i) Within 60 days (or such other date as 7. Revise section 52.230–6 to read as Required change means— may be mutually agreed to by the CFAO and (1) A change in cost accounting practice follows: the Contractor) after the date of agreement that a Contractor is required to make in order with the CFAO that there is a 52.230–6 Administration of Cost to comply with a CAS, or a modification or Accounting Standards. interpretation thereof, that subsequently noncompliance; or becomes applicable to existing CAS-covered (ii) In the event of Contractor disagreement, As prescribed in 30.201–4(d)(1), insert within 60 days after the CFAO notifies the the following clause: contracts or subcontracts due to the receipt of another CAS-covered contract or Contractor of the determination of Administration of Cost Accounting Standards subcontract; or noncompliance. (Date) (2) A prospective change to a disclosed or (c) When requested by the CFAO, submit For the purpose of administering the Cost established cost accounting practice when on or before a date specified by the CFAO— Accounting Standards (CAS) requirements the CFAO determines that the former practice (1) A general dollar magnitude (GDM) under this contract, the Contractor shall take was in compliance with applicable CAS and proposal in accordance with paragraph (d) or the steps outlined in paragraphs (b) through the change is necessary for the Contractor to (g) of this clause; (i) and (k) through (n) of this clause: remain in compliance. (2) A detailed cost impact (DCI) proposal (a) Definitions. As used in this clause— Unilateral change means a change in cost in accordance with paragraph (e) or (h) of Affected CAS-covered contract or accounting practice from one compliant this clause; subcontract means a contract or subcontract practice to another compliant practice that a (3) For any request for a desirable change subject to CAS rules and regulations for Contractor with a CAS-covered contract(s) or that is based on the criteria in FAR 30.603– which a Contractor or subcontractor— subcontract(s) elects to make that has not 2(b)(3)(ii), the data necessary to demonstrate (1) Used one cost accounting practice to been deemed a desirable change by the CFAO the required cost savings; and estimate costs and a changed cost accounting and for which the Government will pay no (4) For any request for a desirable change practice to accumulate and report costs under aggregate increased costs. that is based on criteria other than that in the contract or subcontract; or (b) Submit to the CFAO a description of FAR 30.603–2(b)(3)(ii), a GDM proposal and (2) Used a noncompliant practice for any cost accounting practice change any other data necessary for the CFAO to purposes of estimating or accumulating and (including revisions to the Disclosure determine if the change is a desirable change. reporting costs under the contract or Statement, if applicable) and any assertion (d) For any change in cost accounting subcontract. that the cost impact of the change is practice subject to paragraph (b)(1), (b)(2), or Cognizant Federal agency official (CFAO) immaterial as outlined in paragraphs (b)(1) (b)(3) of this clause, the GDM proposal means the Contracting Officer assigned by shall— the cognizant Federal agency to administer through (3) of this clause. If a change in cost (1) Show the calculation of the cost impact the CAS. accounting practice is implemented without in accordance with paragraph (f) of this Desirable change means a compliant submitting the notice required by this clause; change to a Contractor’s established or paragraph, the CFAO may determine the disclosed cost accounting practices that the change to be a failure to follow paragraph (2) Use one or more of the following CFAO finds is desirable and not detrimental (a)(2) of the clause at FAR 52.230–2, Cost methods to determine the increase or to the Government and is, therefore, not Accounting Standards; paragraph (a)(4) of the decrease in cost accumulations: subject to the no increased cost prohibition clause at FAR 52.230–3, Disclosure and (i) A representative sample of affected provisions of CAS-covered contracts and Consistency of Cost Accounting Practices; or CAS-covered contracts and subcontracts. subcontracts affected by the change. paragraph (a)(2) of the clause at FAR 52.230– (ii) The change in indirect rates multiplied Fixed-price contracts and subcontracts 5, Cost Accounting Standards—Educational by the total estimated base computed for each means— Institution. of the following groups: (1) Fixed-price contracts and subcontracts (1) When a description has been submitted (A) Fixed-price contracts and subcontracts. described at FAR 16.202, 16.203, and 16.207; for a change in cost accounting practice that (B) Flexibly priced contracts and (2) Fixed-price incentive contracts and is dependent on a contact award and that subcontracts. subcontracts where the price is not adjusted contract is subsequently awarded, notify the (iii) Any other method that provides a based on actual costs incurred (FAR Subpart CFAO within 15 days after such award. reasonable approximation of the total 16.4); (2) For any change in cost accounting increase or decrease in cost accumulations (3) Orders issued under indefinite-delivery practice not covered by (b)(1) of this clause for all affected fixed-price and flexibly priced contracts and subcontracts where final that is required in accordance with contracts and subcontracts;
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(3) Use a format acceptable to the CFAO (ii) Determine the increased or decreased (A) Fixed-price contracts and subcontracts. but, as a minimum, include the following cost to the Government for flexibly priced (B) Flexibly priced contracts and data: contracts and subcontracts as follows: subcontracts. (i) The estimated increase or decrease in (A) When the amount in paragraph (f)(2)(i) (ii) The increased or decreased cost to the cost accumulations by executive agency, exceeds the amount in paragraph (f)(2)(ii) of Government for each of the following groups: including any impact the change may have this clause, the difference is decreased cost (A) Fixed-price contracts and subcontracts. on contract and subcontract incentives, fees, to the Government. (B) Flexibly priced contracts and and profits, for each of the following groups: (B) When the amount in paragraph (f)(2)(i) subcontracts. (A) Fixed-price contracts and subcontracts. is less than the amount in paragraph (f)(2)(ii) (iii) The total overpayments and (B) Flexibly priced contracts and of this clause, the difference is increased cost underpayments made by the Government subcontracts. to the Government; during the period of noncompliance. The (ii) For unilateral changes, the increased or (iii) Calculate the total increase or decrease total overpayments and underpayments shall decreased costs to the Government for each in contract and subcontract incentives, fees, be broken down by quarter, unless each of of the following groups: and profits associated with the increased or the quarterly amounts billed during the (A) Fixed-price contracts and subcontracts. decreased cost to the Government in period of noncompliance were approximately (B) Flexibly priced contracts and accordance with 48 CFR 9903.306(c). The equal. subcontracts; and associated increase or decrease is based on (4) When requested by the CFAO, identify (4) When requested by the CFAO, identify the difference between the negotiated all affected CAS-covered contracts and all affected CAS-covered contracts and incentives, fees, and profits and the amounts subcontracts. subcontracts. that would have been negotiated had the cost (h) For any noncompliant practice subject (e) For any change in cost accounting impact been known at the time the contracts to paragraph (b)(4) of this clause, prepare the practice subject to paragraph (b)(1), (b)(2), or and subcontracts were negotiated; and DCI proposal as follows: (b)(3) of this clause, the DCI proposal shall— (iv) Calculate the increased or decreased (1) Calculate the cost impact in accordance (1) Show the calculation of the cost impact cost to the Government in the aggregate by with paragraph (i) of this clause. in accordance with paragraph (f) of this adding— (2) Show the increase or decrease in price clause; (A) The increased or decreased cost to the and cost accumulations for each affected (2) Show the estimated increase or Government for fixed-price contracts and CAS-covered contract and subcontract unless decrease in cost accumulations for each subcontracts; the CFAO and Contractor agree to— affected CAS-covered contract and (B) The increased or decreased cost to the (i) Include only those affected CAS-covered subcontract, unless the CFAO and Contractor Government for flexibly priced contracts and contracts and subcontracts having— agree to include— subcontracts; and (A) Contract and subcontract values (i) Only those affected CAS-covered (C) The total increase or decrease in exceeding a specified amount when the contracts and subcontracts having an contract and subcontract incentives, fees, and noncompliance involves estimating costs; estimate to complete exceeding a specified profits computed in (f)(3)(iii) of this clause. and amount; and (4) For equitable adjustments for required (B) Incurred costs exceeding a specified (ii) An estimate of the total increase or changes— amount when the noncompliance involves decrease in cost accumulations for all (i) Estimated increased cost accumulations affected CAS-covered contracts and are the basis for increasing contract prices, accumulating costs; and subcontracts, using the results in paragraph including target prices and cost ceilings; and (ii) Estimate the total increase or decrease (e)(2)(i) of this clause; (ii) Estimated decreased cost in price and cost accumulations for all (3) Use a format acceptable to the CFAO accumulations are the basis for decreasing affected CAS-covered contracts and but, as a minimum, include the information contract prices, including target prices and subcontracts using the results in paragraph in paragraph (d)(3) of this clause; and cost ceilings. (h)(2)(i) of this clause. (4) When requested by the CFAO, identify (g) For any noncompliant cost accounting (3) Use a format acceptable to the CFAO all affected CAS-covered contracts and practice subject to paragraph (b)(4) of this that, as a minimum, includes the information subcontracts. clause, prepare the GDM proposal as follows: in paragraph (g)(3) of this clause. (f) For GDM and DCI proposals that are (1) Calculate the cost impact in accordance (4) When requested by the CFAO, identify subject to the requirements of paragraphs (d) with paragraph (i) of this clause. all affected CAS-covered contracts and or (e) of this clause, calculate the cost impact (2) Use one or more of the following subcontracts. as follows: methods to determine the increase or (i) For GDM and DCI proposals that are (1) The cost impact calculation shall decrease in contract and subcontract prices subject to the requirements of paragraph (g) include all affected CAS-covered contracts or cost accumulations, as applicable: or (h) of this clause, calculate the cost impact and subcontracts regardless of their status (i) A representative sample of affected as follows: (i.e., open or closed) or the fiscal year in CAS-covered contracts and subcontracts. (1) The cost impact calculation shall which the costs were incurred (i.e., whether (ii) When the noncompliance involves cost include all affected CAS-covered contracts or not the final indirect cost rates have been accumulation— and subcontracts regardless of their status established). (A) For purposes of computing increased (i.e., open or closed) or the fiscal year in (2) Compute the increase or decrease in costs in the aggregate, the change in indirect which the costs were incurred (i.e., whether cost accumulations for affected CAS-covered rates multiplied by the applicable base for or not the final indirect cost rates have been contracts and subcontracts based on the flexibly priced contracts and subcontracts; or established). difference between— (B) For purposes of determining interest, (2) For noncompliances that involve (i) The estimated cost to complete using the change in indirect costs multiplied by the estimating costs, compute the change in the current practice; and applicable base for flexibly priced and fixed- contract and subcontract price for flexibly (ii) The estimated cost to complete using price contracts and subcontracts. priced and fixed-price contracts and the changed practice. (iii) Any other method that provides a subcontracts (the computation for the flexibly (3) For unilateral changes— reasonable approximation of the total priced contracts is used in determining any (i) Determine the increased or decreased increase or decrease. necessary adjustments to fee and incentives), cost to the Government for fixed-price (3) Use a format acceptable to the CFAO based on the difference between— contracts and subcontracts as follows: but, as a minimum, include the following (i) The negotiated contract or subcontract (A) When the amount in paragraph (f)(2)(i) data: price; and exceeds the amount in paragraph (f)(2)(ii) of (i) The total increase or decrease in (ii) What the negotiated price would have this clause, the difference is increased cost to contract and subcontract price and cost been had the Contractor used a compliant the Government. accumulations, as applicable, by executive practice. (B) When the amount in paragraph (f)(2)(i) agency, including any impact the (3) For noncompliances that involve is less than the amount in paragraph (f)(2)(ii) noncompliance may have on contract and accumulating costs, compute the change in of this clause, the difference is decreased cost subcontract incentives, fees, and profits, for cost accumulations for flexibly priced and to the Government; each of the following groups: fixed-price contracts and subcontracts. The
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computation for the fixed-price contracts is (i) The increased or decreased cost to the (ii) Dollar amount and date of award. used only for purposes of determining Government for fixed-price contracts and (iii) Name of Contractor making the award. interest on costs paid, based on the difference subcontracts; (m) Notify the CFAO in writing of any between— (ii) The total increase or decrease in adjustments required to subcontracts under (i) The costs that were accumulated under contract and subcontracts incentives, fees, this contract and agree to an adjustment to the noncompliant practice; and and profits computed in (i)(6) of this clause. this contract price or estimated cost and fee. (ii) The costs that would have been (8) For noncompliances that involve The Contractor shall— accumulated using a compliant practice accumulating costs, calculate the increased (1) Provide this notice within 30 days after (from the time the noncompliant practice was or decreased cost to the Government in the the Contractor receives the proposed first implemented until the date the aggregate by adding— subcontract adjustments; and noncompliant practice was replaced with a (i) The increased or decreased cost to the (2) Include a proposal for adjusting the Government for flexibly priced contracts and compliant practice). higher-tier subcontract or the contract subcontracts; and (4) For purposes of determining increased appropriately. (ii) The total increase or decrease in (n) For subcontracts containing the clause costs in the aggregate for noncompliances contract and subcontracts incentives, fees, that involve estimating costs, determine the or substance of the clause at FAR 52.230–2, and profits computed in paragraph (i)(6) of FAR 52.230–3, or FAR 52.230-5, require the increased or decreased cost to the this clause. Government for fixed-price contracts and subcontractor to comply with all Standards (j) If the Contractor does not submit the in effect on the date of award or of final subcontracts as follows: information required by paragraph (b) or (c) (i) When the amount in paragraph (i)(2)(i) agreement on price, as shown on the of this clause within the specified time, or subcontractor’s signed Certificate of Current exceeds the amount in paragraph (i)(2)(ii) of any extension granted by the CFAO, the Cost or Pricing Data, whichever is earlier. this clause, the difference is increased cost to CFAO may take one or both of the following the Government. actions: (End of clause) (ii) When the amount in paragraph (i)(2)(i) (1) Withhold an amount not to exceed 10 is less than the amount in paragraph (i)(2)(ii) percent of each subsequent payment to the 8. Add section 52.230–7 to read as of this clause, the difference is decreased cost Contractor’s affected CAS-covered contracts follows: (up to the estimated general dollar magnitude to the Government. 52.230–7 Proposal Disclosure—Cost of the cost impact) until such time as the (5) For purposes of determining increased Accounting Practice Changes. costs in the aggregate for noncompliances Contractor provides the required information that involve cost accumulation, determine to the CFAO. As prescribed in 30.201–3(c), insert the increased or decreased cost to the (2) Issue a final decision in accordance the following provision: Government for flexibly priced contracts and with FAR 33.211 and unilaterally adjust the Proposal Disclosure—Cost Accounting subcontracts as follows: contract(s) by the estimated amount of the Practice Changes (Date) (i) When the amount in paragraph (i)(3)(i) cost impact. exceeds the amount in paragraph (i)(3)(ii) of (k) Agree to— The offeror shall check ‘‘yes’’ below if the this clause, the difference is increased cost to (1) Contract modifications to reflect contract award will result in a required or the Government. adjustments required in accordance with unilateral change in cost accounting practice, paragraph (a)(4) or (a)(5) of the clauses at (ii) When the amount in paragraph (i)(3)(i) including unilateral changes requested to be FAR 52.230–2 and 52.230–5; or with is less than the amount in paragraph (i)(3)(ii) desirable changes. paragraph (a)(3) or (a)(4) of the clause at FAR [ ] Yes of this clause, the difference is decreased cost 52.230–3; and [] No to the Government. (2) Repay the Government for any aggregate (6) Calculate the total increase or decrease increased cost paid to the Contractor. If the offeror checks ‘‘Yes’’ above, the in contract and subcontract incentives, fees, (l) For all subcontracts subject to the offeror shall— and profits associated with the increased or clauses at FAR 52.230–2, 52.230–3, or (1) Prepare the pricing proposal in decreased cost to the Government in 52.230–5— response to the solicitation using the changed accordance with 48 CFR 9903.306(c). The (1) So state in the body of the subcontract, practice for the period of performance for associated increase or decrease is based on in the letter of award, or in both (do not use which the practice will be used; and the difference between the negotiated self-deleting clauses); (2) Submit a description of the changed incentives, fees, and profits and the amounts (2) Include the substance of this clause in cost accounting practice to the Contracting that would have been negotiated had the all negotiated subcontracts; and Officer and the Cognizant Federal Agency Contractor used a compliant practice. (3) Within 30 days after award of the Official as pricing support for the proposal. (7) For noncompliances that involve subcontract, submit the following (End of provision) estimating costs, calculate the increased or information to the Contractor’s CFAO: decreased cost to the Government in the (i) Subcontractor’s name and subcontract [FR Doc. 03–16868 Filed 7–2–03; 8:45 am] aggregate by adding— number. BILLING CODE 6820–EP–P
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Reader Aids Federal Register Vol. 68, No. 128 Thursday, July 3, 2003
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY
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. 22 CFR Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Proclamations: Proposed Rules: 303...... 39490 The United States Government Manual 741–6000 7688...... 39793 7689...... 39795 Other Services 25 CFR Electronic and on-line services (voice) 741–6020 7 CFR Proposed Rules: Privacy Act Compilation 741–6064 54...... 39805 Ch. I ...... 39038 Public Laws Update Service (numbers, dates, etc.) 741–6043 718...... 39447 26 CFR TTY for the deaf-and-hard-of-hearing 741–6086 1405...... 39447 Proposed Rules: 1 ...... 39011, 39012, 39452, 1150...... 39861 39453 ELECTRONIC RESEARCH 1580...... 39478 602...... 39012 World Wide Web Proposed Rules: 10 CFR 1...... 39498 Full text of the daily Federal Register, CFR and other publications Proposed Rules: 301...... 39498 is located at: http://www.access.gpo.gov/nara 2...... 40026 27 CFR Federal Register information and research tools, including Public 20...... 40026 Inspection List, indexes, and links to GPO Access are located at: 21...... 40026 4...... 39454 http://www.archives.gov/federallregister/ 50...... 40026 9...... 39833 51...... 40026 Proposed Rules: E-mail 52...... 40026 4...... 39500 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 72...... 40026 24...... 39500 an open e-mail service that provides subscribers with a digital 73...... 40026 29 CFR form of the Federal Register Table of Contents. The digital form 140...... 40026 of the Federal Register Table of Contents includes HTML and 170...... 40026 102...... 39836 PDF links to the full text of each document. Proposed Rules: 12 CFR To join or leave, go to http://listserv.access.gpo.gov and select 1926...... 39877, 39880 225...... 39807 Online mailing list archives, FEDREGTOC-L, Join or leave the list 30 CFR (or change settings); then follow the instructions. 910...... 39810 913...... 39810 Proposed Rules: PENS (Public Law Electronic Notification Service) is an e-mail Proposed Rules: 70...... 39881 service that notifies subscribers of recently enacted laws. Ch. 7 ...... 39863 75...... 39881 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 701...... 39866 90...... 39881 and select Join or leave the list (or change settings); then follow 745...... 39868 the instructions. 900...... 39027 31 CFR FEDREGTOC-L and PENS are mailing lists only. We cannot 932...... 39027 Proposed Rules: respond to specific inquiries. 955...... 39027 103...... 39039 Reference questions. Send questions and comments about the 13 CFR 32 CFR Federal Register system to: [email protected] 121...... 39448 9...... 39374 The Federal Register staff cannot interpret specific documents or 10...... 39379 14 CFR regulations. 11...... 39381 39...... 39449, 39815 12...... 39387 FEDERAL REGISTER PAGES AND DATE, JULY Proposed Rules: 13...... 39389 39 ...... 39483, 39485, 39870 14...... 39391 39005–39446...... 1 71...... 39238 15...... 39394 16...... 39395 39447–39804...... 2 15 CFR 39805–40114...... 3 17...... 39397 922...... 39005 33 CFR 17 CFR 26...... 39353 30...... 39006 101...... 39240 102...... 39240 20 CFR 103...... 39284 218...... 39009 104...... 39292 220...... 39009 105...... 39315 225...... 39009 106...... 39338 160...... 39292 21 CFR 161...... 39353 101...... 39831 164...... 39353 Proposed Rules: 165 ...... 39013, 39015, 39017, 131...... 39873 39292, 39353, 39455, 40024
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Proposed Rules: 51...... 39888 31...... 39292 Proposed Rules: 110...... 39503 52...... 39041, 39506 71...... 39292 30...... 40104 91...... 39292 52...... 40104 37 CFR 43 CFR 115...... 39292 260...... 39837 10...... 39853 126...... 39292 49 CFR 176...... 39292 40 CFR 44 CFR 541...... 39471 51...... 39842 64...... 39019 47 CFR 52...... 39457 65...... 39021 0...... 39471 50 CFR 80...... 39018 67...... 39023 32...... 38641 180 ...... 39428, 39435, 39460, Proposed Rules: 54...... 38642, 39471 17...... 39624, 40076 39462, 39846 67 ...... 39042, 39044, 39046 73...... 38643 300...... 39024 Proposed Rules: Proposed Rules: 19...... 39882 46 CFR 48 CFR 17...... 39507, 39892 27...... 39882 2...... 39292 Ch. 10 ...... 39854 697...... 39048
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REMINDERS Surgical suture devices; Colorado River, NV; safety Sapote Fruit Fly; comments The items in this list were special control zone; published 6-18-03 due by 7-7-03; published editorially compiled as an aid designation; published Columbia River— 5-8-03 [FR 03-11438] to Federal Register users. 6-3-03 Kennewick, WA; safety User fees: Inclusion or exclusion from HOMELAND SECURITY zone; published 6-4-03 Veterinary services— this list has no legal DEPARTMENT Columbia River, Vancouver, Miami International significance. Coast Guard WA; safety zone; Airport, FL; animal published 6-3-03 Ports and waterways safety: ramp; comments due by Lantana, FL; safety zone; Lake Michigan— 7-11-03; published 5-12- RULES GOING INTO published 6-4-03 03 [FR 03-11707] Chicago, IL; safety zone; Miami, offshore from Coral EFFECT JULY 3, 2003 AGRICULTURE published 6-30-03 Reef Yacht Club, FL; DEPARTMENT Marblehead, MA; safety safety zone; published 6- COURT SERVICES AND zone; published 7-7-03 4-03 Commodity Credit OFFENDER SUPERVISION Ohio River— Corporation AGENCY FOR THE Portland Captain of Port Zone— Marietta, OH; safety zone; Conservation Reserve DISTRICT OF COLUMBIA Program: Oregon; safety zone; published 6-9-03 Freedom of Information Act, Acreage enrollment terms published 6-4-03 Portland Captain of Port Privacy Act, et al.; and conditions and Saginaw River, Bay City, Zone— implementation; published 6- Oregon; safety zone; program eligibility 3-03 MI; safety zone; published requirements; comments 7-7-03 published 6-4-03 ENERGY DEPARTMENT Rivera Beach, Northwest of due by 7-7-03; published Active uranium and thorium NATIONAL CREDIT UNION Peanut Island, FL; safety 5-8-03 [FR 03-11405] processing sites; ADMINISTRATION zone; published 6-4-03 AGRICULTURE reimbursement for costs of Credit unions: Salem Harbor, MA; safety DEPARTMENT remedial action; technical Investment and deposit zone; published 7-7-03 Food and Nutrition Service and administrative activities and Regulatory San Diego Bay, CA; North Food Stamp Program: amendments; published 6-3- Flexibility Program; San Diego Bay July 4th Electronic benefit transfer 03 published 6-3-03 Fireworks Show; safety and retail food store ENVIRONMENTAL NATIONAL LABOR zone; published 7-1-03 provisions; comments due PROTECTION AGENCY RELATIONS BOARD Siuslaw and Willamette by 7-7-03; published 5-6- Air quality implementation Unfair labor practice charge, Rivers, OR; safety zones; 03 [FR 03-11135] published 6-3-03 plans; approval and dismissal by Regional AGRICULTURE St. Lucie River, Stuart, FL; promulgation; various Director; General Counsel DEPARTMENT States: appeals procedures; safety zone; published 6- 4-03 Grain Inspection, Packers California; published 6-3-03 published 7-3-03 Willamette River, Portland, and Stockyards Pesticides; tolerances in food, TRANSPORTATION OR— Administration DEPARTMENT animal feeds, and raw Safety zone; published 6- Grain weighing equipment and agricultural commodities: Federal Aviation 4-03 related handling sysytems; Fludioxonil; published 7-3-03 Administration Official Performance and procedural requiremnts; FEDERAL Airworthiness directives: RULES GOING INTO comments due by 7-10-03; COMMUNICATIONS BAE Systems (Operations) EFFECT JULY 5, 2003 published 6-10-03 [FR 03- COMMISSION Ltd.; published 5-29-03 14553] Radio services, special: Boeing; published 5-29-03 HOMELAND SECURITY COMMERCE DEPARTMENT Amateur service— Dassault; published 5-29-03 DEPARTMENT National Oceanic and Gulfstream Aerospace; Coast Guard 5250-5400 kHz band, Atmospheric Administration published 5-29-03 Ports and waterways safety: secondary access; Environmental statements; Israel Aircraft Industries, Colorado River, Laughlin, 2400-2402 MHz band, notice of intent: upgrade to primary Ltd.; published 5-29-03 NV; Avi Resort and Casino Fireworks Show; West Coast States and status; published 6-3-03 McDonnell Douglas; safety zone; published 7- Western Pacific published 5-29-03 FEDERAL HOUSING 1-03 fisheries— FINANCE BOARD Turbomeca; published 5-29- Lake Huron, Harrisville, MI; Pacific Coast groundfish; Privacy Act; implementation; 03 safety zone; published 7- comments due by 7-7- published 7-3-03 Turbomeca S.A.; published 7-03 03; published 6-5-03 HEALTH AND HUMAN 5-29-03 [FR 03-14177] SERVICES DEPARTMENT Turbomeca; correction; COMMENTS DUE NEXT Fishery conservation and Food and Drug published 6-6-03 WEEK management: Administration Magnuson-Stevens Act Food for human consumption: RULES GOING INTO AGRICULTURE provisions— Food labeling— EFFECT JULY 4, 2003 DEPARTMENT Northeastern United Agricultural Marketing States fisheries and D-tagatose and dental Service Northeast Skate caries; health claims; HOMELAND SECURITY Kiwifruit grown in— Complex Fisheries; published 7-3-03 DEPARTMENT California; comments due by Skate Fishery Coast Guard Human drugs: 7-8-03; published 6-23-03 Management Plan; Opthalmic products (OTC); Drawbridge operations: [FR 03-15826] comments due by 7-7- final monograph; technical New York; published 6-25- AGRICULTURE 03; published 6-4-03 amendment; published 6- 03 DEPARTMENT [FR 03-13726] 3-03 Ports and waterways safety: Animal and Plant Health Ocean and coastal resource Medical devices: Charles River, Boston, Inspection Service management: General and plastic surgery Massachusetts; safety Plant-related quarantine, Coastal Zone Management devices— zone; published 7-7-03 domestic: Act; Federal consistency
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process; comments due Florida; Class I municipal HEALTH AND HUMAN JUSTICE DEPARTMENT by 7-11-03; published 6- wells; comments due by SERVICES DEPARTMENT Drug Enforcement 11-03 [FR 03-14663] 7-7-03; published 5-5-03 Food and Drug Administration DEFENSE DEPARTMENT [FR 03-10269] Administration National Defense Authorization Navy Department FEDERAL Public Health Security and Act: COMMUNICATIONS Privacy Act; implementation; Bioterrorism Preparedness Federal departments or COMMISSION comments due by 7-8-03; and Response Act of 2002; agencies may not sell published 5-9-03 [FR 03- Digital television stations; table implementation: from stocks any chemicals 11576] of assignments: Food for human and animal that could be used in Montana; comments due by consumption; manufacturing of ENVIRONMENTAL 7-7-03; published 5-21-03 manufacturing, processing, controlled substances; PROTECTION AGENCY [FR 03-12685] packing, transporting, provisions; comments due Air pollution; standards of Frequency allocations and distribution, etc.; records by 7-7-03; published 5-8- performance for new radio treaty matters: establishment and 03 [FR 03-11393] stationary sources: maintenance; comments Non-geostationary orbit OFFICE OF MANAGEMENT Monitoring requirements; due by 7-8-03; published mobile-satellite service AND BUDGET comments due by 7-7-03; 5-9-03 [FR 03-11460] systems in 1.6/2.4 GHz Management and Budget published 5-8-03 [FR 03- bands; spectrum sharing Food for human Office 11472] plan; comments due by 7- consumption; Grants, other financial Air quality implementation 7-03; published 6-5-03 administrative detention; assistance, and plans; approval and [FR 03-14082] comments due by 7-8-03; nonprocurement published 5-9-03 [FR 03- promulgation; various Radio frequency devices: agreements; comments due States: 11459] Broadband power line by 7-7-03; published 6-6-03 California; comments due by systems HOMELAND SECURITY [FR 03-14335] 7-7-03; published 6-5-03 DEPARTMENT PERSONNEL MANAGEMENT [FR 03-13882] Correction; comments due by 7-7-03; published 6- Coast Guard OFFICE District of Columbia; 2-03 [FR 03-13590] Ports and waterways safety: Excepted service: comments due by 7-7-03; Radio stations; table of Columbia River, Astoria, Temporary organizations; published 6-5-03 [FR 03- assignments: OR; safety zone; comments due by 7-7-03; 14033] comments due by 7-7-03; Georgia; comments due by published 5-8-03 [FR 03- Kansas; comments due by published 6-6-03 [FR 03- 7-11-03; published 6-5-03 11398] 7-10-03; published 6-10- 14305] [FR 03-14092] SMALL BUSINESS 03 [FR 03-14456] Milwaukee Harbor, WI; Tennessee; comments due ADMINISTRATION safety zone; comments Minnesota; comments due by 7-11-03; published 6-5- Small business size standards: by 7-7-03; published 6-5- due by 7-10-03; published 03 [FR 03-14090] Small Business Innovation 03 [FR 03-13570] 6-16-03 [FR 03-15093] FEDERAL MEDIATION AND Research Program; small North Carolina; comments New London Harbor, CT; CONCILIATION SERVICE businesses owned and due by 7-7-03; published security zone; comments controlled by another 6-6-03 [FR 03-12023] Access to Neutrals Initiative; due by 7-7-03; published Registry of Neutrals; business allowance; Radiation protection program: 5-6-03 [FR 03-11165] comments due by 7-7-03; comments due by 7-7-03; San Diego Bay, CA; Transuranic radioactive published 5-5-03 [FR 03- published 6-4-03 [FR 03- waste for disposal at National City Marine 14036] 10959] Terminal; security zone; Waste Isolation Pilot SOCIAL SECURITY HEALTH AND HUMAN comments due by 7-7-03; Plant; waste ADMINISTRATION SERVICES DEPARTMENT published 5-7-03 [FR 03- characterization program Social security benefits and Centers for Medicare & 11296] documents availability— supplemental security Medicaid Services Hanford Site, WA; HOMELAND SECURITY income: Medicare and medicaid: DEPARTMENT comments due by 7-7- Federal old-age, survivors, 03; published 6-4-03 Skilled nursing facilities Transportation Security and disability benefits, [FR 03-14186] prospective payment Administration and aged, blind, and Water programs: system and consolidated Commercial driver’s licenses; disabled— billing; comments due by hazardous materials Pollutants analysis test Immune system disorders; 7-7-03; published 6-10-03 endorsement applications; procedures; guidelines— medical criteria for [FR 03-14632] security threat assessment Detection and quantitation evaluation; comments Skilled nursing facilities; standards; comments due due by 7-8-03; concepts assessment; prospective payment by 7-7-03; published 5-5-03 technical support published 5-9-03 [FR system and consolidated [FR 03-10830] 03-11491] document; comments billing; update; comments due by 7-10-03; INTERIOR DEPARTMENT STATE DEPARTMENT due by 7-7-03; published Indian Affairs Bureau published 3-12-03 [FR 5-16-03 [FR 03-11854] Visas; immigrant 03-05711] Land and water: documentation: Medicare: Detection and quantitation Indian Reservation Roads Victims of terrorism; Hospital inpatient procedures; comments Program; comments due comments due by 7-7-03; prospective payment due by 7-10-03; by 7-7-03; published 6-5- published 5-8-03 [FR 03- systems and 2004 FY published 3-12-03 [FR 03 [FR 03-14184] 11222] rates; comments due by 03-05712] 7-8-03; published 5-19-03 JUSTICE DEPARTMENT TRANSPORTATION Water supply: [FR 03-11966] Alcohol, Tobacco, Firearms, DEPARTMENT Underground injection Inpatient rehabilitation facility and Explosives Bureau Federal Aviation control program— prospective payment Firearms: Administration Florida; Class I municipal system (2004 FY); Commerce in explosives— Air carrier certification and wells; comments due by comments due by 7-7-03; Fireworks; comments due operations: 7-7-03; published 5-5-03 published 5-16-03 [FR 03- by 7-7-03; published 6- Hazardous materials training [FR 03-10268] 11829] 23-03 [FR 03-15777] requirements; air carriers
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and commercial operators; Class E airspace; comments TREASURY DEPARTMENT The text of laws is not comments due by 7-7-03; due by 7-10-03; published Internal Revenue Service published in the Federal published 5-8-03 [FR 03- 5-30-03 [FR 03-13540] Income taxes: Register but may be ordered 11244] Federal airways; comments Split-dollar life insurance in ‘‘slip law’’ (individual Air traffic operating and flight due by 7-11-03; published arrangements; hearing; pamphlet) form from the rules, etc.: 5-23-03 [FR 03-13036] comments due by 7-8-03; Superintendent of Documents, Area navigation and Noise standards: published 5-9-03 [FR 03- U.S. Government Printing Office, Washington, DC 20402 miscellaneous Propeller-driven small 11568] (phone, 202–512–1808). The amendments; comments airplanes; noise Taxpayer accounting method text will also be made due by 7-7-03; published certification standards; changes; administrative available on the Internet from 4-8-03 [FR 03-08287] comments due by 7-7-03; simplification; comments GPO Access at http:// Airworthiness directives: published 6-6-03 [FR 03- due by 7-11-03; published www.access.gpo.gov/nara/ Airbus; comments due by 7- 14310] 5-12-03 [FR 03-11765] 7-03; published 6-4-03 nara005.html. Some laws may TRANSPORTATION TREASURY DEPARTMENT not yet be available. [FR 03-13977] DEPARTMENT Currency and foreign Boeing; comments due by transactions; financial Federal Motor Carrier Safety H.R. 389/P.L. 108–41 7-7-03; published 6-11-03 Administration reporting and recordkeeping [FR 03-14666] requirements: Motor carrier safety standards: Automatic Defibrillation in Dornier; comments due by Bank Secrecy Act; Commercial driver’s licenses Adam’s Memory Act (July 1, 7-7-03; published 6-6-03 implementation— with hazardous materials 2003; 117 Stat. 839) [FR 03-13974] Commodity trading endorsement; limitations McDonnell Douglas; advisors; anti-money H.R. 519/P.L. 108–42 on issuance; comments comments due by 7-7-03; laundering programs; due by 7-7-03; published San Gabriel River Watershed published 5-23-03 [FR 03- comments due by 7-7- 5-5-03 [FR 03-10829] Study Act (July 1, 2003; 117 12965] 03; published 5-5-03 Stat. 840) MORAVAN a.s.; comments TRANSPORTATION [FR 03-10841] DEPARTMENT due by 7-7-03; published Futures commission H.R. 788/P.L. 108–43 6-2-03 [FR 03-13384] National Highway Traffic merchants and Rolls-Royce Deutschland Ltd Safety Administration introducing brokers in Glen Canyon National & Co KG Dart; comments Anthropomorphic test devices: commodities; definition Recreation Area Boundary due by 7-7-03; published Occupant crash protection— as financial institutions; Revision Act (July 1, 2003; 117 Stat. 841) 5-5-03 [FR 03-10984] Hybrid III test dummies; suspicious transaction reporting requirements; Rolls-Royce plc; comments six-year-old weighted Last List July 2, 2003 due by 7-7-03; published child dummy; comments comments due by 7-7- 5-7-03 [FR 03-11267] due by 7-7-03; 03; published 5-5-03 Airworthiness standards: published 5-7-03 [FR [FR 03-10839] Special conditions— 03-11294] Investment advisers; anti- money laundering Public Laws Electronic Bombardier Model BD- Motor vehicle safety Notification Service 100-1A10 airplane; standards: programs; comments due by 7-7-03; (PENS) automatic takeoff thrust Occupant crash protection— control system; published 5-5-03 [FR Child restraint anchorage 03-10840] comments due by 7-7- systems; comments due 03; published 6-6-03 by 7-7-03; published 5- PENS is a free electronic mail [FR 03-14337] 8-03 [FR 03-11293] LIST OF PUBLIC LAWS notification service of newly Embraer Model ERJ-170 enacted public laws. To TRANSPORTATION series airplanes; This is a continuing list of subscribe, go to http:// DEPARTMENT comments due by 7-7- public bills from the current listserv.gsa.gov/archives/ 03; published 6-5-03 Research and Special session of Congress which publaws-l.html [FR 03-14161] Programs Administration have become Federal laws. It Raytheon Aircraft Co. Hazardous materials: may be used in conjunction Note: This service is strictly Model HS.125 series Regulatory Flexibility Act with ‘‘PLUS’’ (Public Laws for E-mail notification of new 700A and 700B Section 610 and plain Update Service) on 202–741– laws. The text of laws is not airplanes; comments language reviews; 6043. This list is also available through this service. due by 7-7-03; comments due by 7-7-03; available online at http:// PENS cannot respond to published 6-6-03 [FR published 4-7-03 [FR 03- www.nara.gov/fedreg/ specific inquiries sent to this 03-14336] 08316] plawcurr.html. address.
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TABLE OF EFFECTIVE DATES AND TIME PERIODS—JULY 2003
This table is used by the Office of the dates, the day after publication is A new table will be published in the Federal Register to compute certain counted as the first day. first issue of each month. dates, such as effective dates and When a date falls on a weekend or comment deadlines, which appear in holiday, the next Federal business day agency documents. In computing these is used. (See 1 CFR 18.17)
DATE OF FR 15 DAYS AFTER 30 DAYS AFTER 45 DAYS AFTER 60 DAYS AFTER 90 DAYS AFTER PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION
July 1 July 16 July 31 August 15 Sept 2 Sept 29
July 2 July 17 August 1 August 18 Sept 2 Sept 30
July 3 July 18 August 4 August 18 Sept 2 Oct 1
July 7 July 22 August 6 August 21 Sept 5 Oct 6
July 8 July 23 August 7 August 22 Sept 8 Oct 6
July 9 July 24 August 8 August 25 Sept 8 Oct 7
July 10 July 25 August 11 August 25 Sept 8 Oct 8
July 11 July 28 August 11 August 25 Sept 9 Oct 9
July 14 July 29 August 13 August 28 Sept 12 Oct 14
July 15 July 30 August 14 August 29 Sept 15 Oct 14
July 16 July 31 August 15 Sept 2 Sept 15 Oct 14
July 17 August 1 August 18 Sept 2 Sept 15 Oct 15
July 18 August 4 August 18 Sept 2 Sept 16 Oct 16
July 21 August 5 August 20 Sept 4 Sept 19 Oct 20
July 22 August 6 August 21 Sept 5 Sept 22 Oct 20
July 23 August 7 August 22 Sept 8 Sept 22 Oct 21
July 24 August 8 August 25 Sept 8 Sept 22 Oct 22
July 25 August 11 August 25 Sept 8 Sept 23 Oct 23
July 28 August 12 August 27 Sept 11 Sept 26 Oct 27
July 29 August 13 August 28 Sept 12 Sept 29 Oct 27
July 30 August 14 August 29 Sept 15 Sept 29 Oct 28
July 31 August 15 Sept 2 Sept 15 Sept 29 Oct 29
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